Cannon, this may give you some consolation
3. We have received word that some posts are canceling underlying H or L nonimmigrant visas after the initial immigrant visa interview, but before the immigrant visa is adjudicated. An example is a case in which the applicant had to reenter the U.S. to acquire documentation for the interview. Could you please advise posts not to cancel these nonimmigrant visas? Since in the adjustment context, H and L non-immigrants may continue their underlying status as long as possible, we believe that the H or L nonimmigrant visa does not have to be canceled until the foreign national applies to enter the U.S. as a permanent resident. Would VO agree with this position?
IV3. Under 9 FAM 42.73 N1, a consular officer is required to cancel nonimmigrant visas of any category, including H or L, upon issuance of an immigrant visa. In addition, under the authority of INA 221(i) and 22 CFR 41.122(a), a consular officer may revoke a nonimmigrant visa prior to issuance of the immigrant visa, but only if the consular officer finds that the alien is no longer entitled to the particular nonimmigrant classification or is ineligible under INA 212(a).
Given these rules, and in light of the fact that H-1b and L aliens are exempt from INA 214(b), we would agree that it would not be appropriate for a consular officer to cancel an H-1b or L visa prior to issuance of the IV, as long as the alien is still maintaining the nonimmigrant employment on which the H-1b or L visa is based, and provided the alien has not ceased to be eligible for the nonimmigrant visa on some 212(a) or other ground. To VO’s knowledge, however, most posts only cancel the IV applicant’s NIV upon issuance of the IV, not upon application. If AILA is aware of specific posts where the latter is believed to be the practice, please provide us with the names of the posts and we will follow up with them.
VO cannot agree to the suggestion that the NIV should only be canceled at the time that the alien actually applies for admission on the IV at the port-of-entry. As noted above, 9 FAM 42.73 N1 requires cancellation of the NIV upon visa issuance, and this is consistent with the revocation rules in 22 CFR 41.122(a) and (h). Moreover, cancellation of the NIV upon issuance of the IV is necessary for practical reasons, to prevent possible erroneous admission in NIV status at the POE (e.g., if a confused or unsophisticated/youthful alien fails to tender the IV packet) and to deter possible fraudulent use of the NIV by alien smugglers who might purchase or steal the NIV. In the unlikely event that an alien who has been interviewed and approved for IV issuance still wishes to travel in H or L status before immigrating, we suggest that the alien request that issuance of the IV be delayed until after the alien returns from his/her H or L trip.
