How to Respond When You Receive a Notice of Intent to Revoke (NOIR)
Notices of Intent to Revoke (NOIRs) have become increasingly prevalent among H-1B and L-1 nonimmigrant classifications. A NOIR is a notice issued by the United States Citizenship and Immigration Services (USCIS) to notify an applicant or visa holder that they intend to revoke the previously approved petition or request. A NOIR can be issued any time after an approval. This notice often provides at least 30 days for the beneficiary to respond before their visa is revoked. Since the beneficiary is considered to no longer hold the nonimmigrant status of a revoked visa, they must immediately stop working. If the beneficiary continues to stay in the U.S. after the revocation, they could end up in removal proceedings unless they find an alternative option to remain.
Receiving a NOIR could result in further scrutiny of the employer, especially if they have filed any other petitions for other employees as well as scrutiny when adjudicating any future petitions on behalf of the beneficiary. Revocation may also call into question whether the beneficiary was ever in valid status. Furthermore, it requires the beneficiary to disclose if they have ever received revocation on any future filings, both with the USCIS or U.S. Consulate abroad.
Why Would a NOIR be Issued?
There are several reasons a NOIR may be issued. It is possible it is an error, where the Department of Homeland Security (DHS) has an incorrect address for an employer and is unable to do a site visit. If DHS feels that they incorrectly approved a petition, a NOIR will be issued. This could also happen if there is a larger investigation surrounding the employer.
DHS has the authority to conduct worksite visits. These visits are to verify that a beneficiary of a nonimmigrant visa is working within the agreed upon terms, including their employment location, salary and job duties. Since January 2018 there has been increasing worksite visits by DHS for H-1B and L-1 nonimmigrant visa holders. Typically during a worksite visit a DHS officer will check the location, if the beneficiary is present and if the employment appears as the facts stated on the petition. If they find any inaccuracies a NOIR may be issued. However, just because a NOIR has been issued, does not necessarily mean any misconduct took place.
Grounds for Revocation
A mandatory revocation with an H or l petition occurs when the petitioner decides to withdraw the petition, or if the company goes out of business or closes. It can also occur if the Department of Labor revokes the labor condition application. However, in some situations if a labor condition application is revoked, a NOID may first be issued.
A non-mandatory revocation may happen if the following occur:
- Facts contained in the petition are not true. Incorrect facts do not necessarily need to be fraudulent or have intent to misrepresent oneself to cause revocation. One example of this would be providing an incorrect worksite location.
- Gross error. Grounds for revocation due to an error from DHS. DHS can revoke and correct its mistake on a previously approved petition if it finds that the petition should not have been approved.
- Change in terms of employment or eligibility. For both L and H petitions, revocation can occur if there is a change in the terms of employment or other factor that would determine the beneficiary’s eligibility. This could be from change in worksite location, job duties and responsibilities, or relationship between U.S. and foreign entity and no amendment to the petition has been made. For H-1B’s, a revocation could result from the petitioner violating the terms of the certified labor certification application, such as change in salary requirements.
How to Respond to a NOIR
- Carefully review the NOIR. Check to make sure this has not been issued by error from DHS. Every detail is significant in these notices.
- Communicate with the employee as well as any other employees who interacted with DHS during any site visits. Get all the facts.
- Identify the issue that needs to be addressed.
- The employer should try to negate any accusations that it intentionally lied or misled DHS.
- File an amendment petition to correct any mistakes. These petitions can be filed with a request for “nunc pro tunc” approval, which asks DHS to apply to changes to the initial filing.
How to Reduce Risks of Receiving a NOIR
- Confirm that all information in the filing are correct, especially the worksite location, job duties, job duties, and title. Confirm this with the employer and employee.
- Minimize any risks during a worksite visit from DHS. Prepare the beneficiary and other employees on how to respond during a visit and make sure all public access files for the H-1B employee are available and intact.
- If a beneficiary plans to travel, make sure they first review the most recent filing so they are prepared to answer any questions upon arrival.
- Make sure employers first review any complications that may arise to the beneficiary’s nonimmigrant status due to employment or worksite location changes.
- Implement a culture of immigration compliance within the company.