Rescission of Permanent Residence and Naturalization
Rescission is a procedure for undoing an adjustment to lawful permanent residence when the person was not actually eligible for the adjustment when USCIS granted it. A rescission problem can stop naturalization because INA §318 requires lawful permanent residence. The key questions include why the adjustment was allegedly unlawful, when it was approved, whether USCIS timely initiated formal rescission, and whether removal proceedings provide a separate path for DHS to challenge the status.
What Is Rescission of Permanent Residence?
INA §246 permits USCIS to rescind an adjustment of status where the person was not in fact eligible for adjustment when permanent residence was granted.
Rescission generally applies to a person who became an LPR through adjustment of status rather than someone whose first LPR admission occurred through an immigrant visa at a port of entry.
If adjustment is rescinded, the person is placed in the legal position that would exist had the adjustment not been granted, subject to the governing statutory framework.
Naturalization cannot ordinarily be approved after rescission because the applicant cannot establish qualifying lawful permanent residence.
The Question Is Whether the Applicant Was Eligible When Adjustment Was Granted
No Immigrant Visa Was Available
An adjustment granted when the applicant did not actually have an available immigrant visa can raise a fundamental eligibility problem.
Unresolved Ground of Inadmissibility
A criminal, fraud, immigration, medical, or other applicable inadmissibility ground may have made the applicant ineligible unless properly waived.
No Qualifying Adjustment Basis
A defective underlying petition, family relationship, employment classification, or other statutory requirement can undermine the adjustment.
USCIS Must Timely Serve the Notice of Intent to Rescind
For formal rescission proceedings, USCIS policy and 8 C.F.R. §246.1 require personal service of a Notice of Intent to Rescind within five years of the adjustment.
Once the NOIR is timely served, USCIS states that service stops the five-year clock. The rescission proceeding itself may therefore continue beyond the fifth anniversary.
The service date—not merely the date USCIS internally created or mailed some document—can therefore be critical.
The Five Years Generally Runs From the Actual Adjustment Date
Actual Adjustment Date
USCIS policy calculates the INA §246 rescission period from the date USCIS actually granted adjustment.
Statutory Rollback Date
Where the immigration law assigns an earlier effective LPR date, such as certain adjustment provisions containing rollback rules, USCIS does not use that earlier date to start the five-year rescission clock.
The NOIR Must Tell the Respondent What USCIS Is Alleging
Under 8 C.F.R. §246.1, the NOIR commences the formal rescission proceeding through personal service.
The notice must identify the allegations upon which USCIS intends to rescind the adjustment.
The respondent must also be told of the right to submit a sworn written answer, request an immigration judge hearing, obtain counsel at no government expense, and present relevant evidence.
The Respondent Can Contest the Rescission and Request a Hearing
The current regulation gives the respondent thirty days from service of the NOIR to submit a written answer under oath explaining why the adjustment should not be rescinded.
The respondent may also request a hearing before an immigration judge within that period, either in support of or instead of the written answer.
Missing the response and hearing deadline can have severe consequences.
Failure to Contest the NOIR Can Result in Rescission Without a Hearing
Allegations Admitted
If the respondent admits the allegations, the regulation authorizes USCIS to rescind the previously granted adjustment.
No Timely Answer or Hearing Request
8 C.F.R. §246.2 likewise directs rescission where no answer or hearing request is timely filed.
The regulation states that no administrative appeal lies from that decision.
A Timely Denial or Hearing Request Sends the Case to an Immigration Judge
Under 8 C.F.R. §246.3, where the respondent timely contests an allegation or requests a hearing, an immigration judge conducts the rescission hearing.
The immigration judge may receive evidence, examine witnesses, decide whether adjustment should be rescinded, and issue an appropriate order.
The respondent has the opportunity to examine and object to evidence, present evidence, and cross-examine government witnesses.
Expiration of the Formal Rescission Period Does Not Automatically Make the Original Adjustment Lawful
INA §246's five-year rule governs formal rescission proceedings.
INA §318 separately requires every naturalization applicant to establish that permanent residence was lawfully obtained under the law applicable when adjustment occurred.
USCIS policy states that an applicant whose LPR status was not lawfully obtained is ineligible for naturalization regardless of whether the original defect involved fraud.
DHS Does Not Always Have to Use Formal INA §246 Rescission
INA §246 expressly provides that DHS is not required to rescind LPR status before beginning removal proceedings. The statute also provides that an immigration judge's removal order can be sufficient to rescind the person's status.
Formal Rescission
USCIS serves a NOIR under the §246 procedure and the respondent may contest rescission through the regulatory hearing process.
Removal Proceedings
DHS may instead charge removability through an NTA where authorized by law and current agency guidance.
Naturalization is then separately affected by INA §318.
Rescission Addresses Ineligibility That Existed When Adjustment Was Granted
USCIS's rescission policy distinguishes defects in the original adjustment from events occurring only after permanent residence was granted.
If a person becomes removable because of conduct occurring after adjustment, that later event is not itself a basis to rescind the original adjustment under INA §246.
DHS may instead consider removal proceedings based on the applicable post-adjustment ground.
Current USCIS Policy Does Not Initiate Rescission Where the Immigration Judge Granted Adjustment
USCIS's current rescission policy states that, as a matter of agency policy, USCIS does not initiate rescission proceedings where adjustment was granted by an immigration judge.
That does not mean an immigration-judge adjustment can never face any later immigration challenge.
The procedural vehicle and jurisdiction must be analyzed separately.
Conditional Residence Has Its Own Termination Framework
Ordinary I-751 Problems
Marriage-based conditional residents generally face the specialized INA §216 procedures for failure to remove conditions, I-751 denial, and termination of conditional residence.
INA §246 May Still Arise
USCIS policy states that the period spent in conditional residence counts toward the five-year rescission period, although USCIS generally does not use INA §246 where the specialized conditional residence termination provisions apply.
Rescission of the Principal's Status Can Affect Derivatives
USCIS naturalization policy states that if a principal applicant's LPR status is rescinded because the principal was never lawfully admitted or adjusted, a derivative who depended on that principal may also have lacked a lawful basis for permanent residence.
This can arise even if the derivative committed no fraud and personally did nothing wrong.
INA §318 focuses on whether the derivative's LPR status was legally available under the applicable immigration law.
Rescission Defeats the Lawful-Permanent-Residence Requirement
Current USCIS naturalization policy provides that once adjustment is rescinded, the naturalization officer must deny Form N-400 under INA §318 and INA §316(a)(1).
The issue is not merely whether the applicant has good moral character.
Naturalization requires a qualifying lawful admission or adjustment to permanent residence, and rescission directly attacks that foundation.
Naturalization Does Not Prevent USCIS From Investigating the Original Adjustment
If an N-400 review reveals that the applicant may have been ineligible for the original adjustment, USCIS may consider rescission where legally available or removal proceedings under current policy. Once qualifying removal proceedings are pending, INA §318 creates a separate barrier to ordinary naturalization.
A Green Card Can Be Legally Defective Even Without Applicant Misconduct
INA §318 lawful-admission review is not limited to fraudulent green cards.
A person may have received adjustment through government error, incorrect visa-number allocation, an unavailable classification, or another defect without intentionally deceiving USCIS.
That absence of fraud can be highly important for other legal issues, but it does not automatically establish that the adjustment itself was lawful.
INA §246 Contains a Separate Rule for a Person Who Has Already Naturalized
INA §246(b) addresses a naturalized citizen whose citizenship rested on an adjustment of status for which the person was not actually eligible and which is subsequently rescinded.
USCIS policy states that, in general, naturalization is revoked before rescission of adjustment after naturalization.
INA §246(b) links such cases to the denaturalization provisions of INA §340.
How to Analyze a Proposed Rescission
Calculate the Five-Year Period
Use the actual adjustment approval date and determine precisely when the NOIR was personally served.
Identify Every Allegation
Determine exactly why USCIS claims the applicant was not eligible when adjustment was granted.
Reconstruct the Law at Adjustment
Apply the statute, regulation, visa availability, waivers, petition status, and other requirements that existed when the I-485 was approved.
Preserve the Hearing Right
If the allegations are contested, determine whether to request the immigration judge hearing within the regulatory thirty-day period.
Address Evidence and Legal Errors
Correct factual mistakes, explain allegedly missing eligibility requirements, and submit documentary evidence supporting the original adjustment.
Assess N-400 and Removal Consequences
Determine how rescission, a possible NTA, pending removal proceedings, and INA §318 affect any naturalization strategy.
The Entire I-485 Record May Be Necessary to Defend the Green Card
A rescission response should normally be grounded in the exact evidence USCIS had when adjustment was approved.
The original petition, I-485, visa-allocation records, waiver history, interview notes, RFE responses, and approval information can show that USCIS's new theory rests on a factual or legal error.
An N-336 Can Challenge the Naturalization Decision—but Not Substitute for the Rescission Defense
If USCIS denies naturalization because the applicant's adjustment was rescinded or because removal proceedings are pending, a timely N-336 may challenge errors in the naturalization decision.
But an N-336 does not itself vacate a rescission order entered through the separate INA §246 process.
The underlying rescission or removal matter must be challenged through the procedure applicable to that proceeding.
Green Card Rescission & Naturalization FAQs
What is rescission of permanent residence?
It is a statutory process for undoing an adjustment to permanent residence where the person was not actually eligible for adjustment when it was granted.
Does rescission apply to every green card?
INA §246 concerns adjustment to permanent residence. Immigrant visa admissions can raise lawful-admission and removal issues but are not the same formal adjustment rescission process.
How long does USCIS have to start formal rescission?
USCIS must personally serve the NOIR within five years of the actual adjustment approval date.
Does USCIS have to finish the case within five years?
No. USCIS policy states that timely service of the NOIR stops the clock and the proceeding may continue after the five-year anniversary.
What if my green card has an earlier rollback date?
USCIS calculates the five-year rescission period from the actual adjustment grant date, not the earlier rollback date.
What is a Notice of Intent to Rescind?
It is the notice that begins the formal rescission proceeding and sets out USCIS's allegations that the person was not eligible for the adjustment.
How long do I have to respond?
The regulation provides thirty days from service to submit a sworn written answer and/or timely request an immigration judge hearing.
Can I have an attorney?
Yes. The regulation provides for representation by qualified counsel or representative at no expense to the government.
What if I do not respond?
Under 8 C.F.R. §246.2, USCIS can rescind the adjustment if no timely answer or hearing request is filed.
Can I request a hearing?
Yes. A timely hearing request or timely answer contesting the allegations results in a rescission hearing before an immigration judge under the regulations.
Does USCIS need to prove fraud?
No. Rescission may be based on ineligibility for adjustment even where the applicant did not intentionally commit fraud.
Can USCIS rescind my green card because of something I did years after adjustment?
A later event is not itself a basis for rescinding the original adjustment under USCIS's INA §246 policy. It may create a separate removability issue.
What happens after five years?
The five-year formal rescission window may expire if USCIS did not timely serve a NOIR, but that does not necessarily establish lawful admission for naturalization or prevent DHS from considering other legally available proceedings.
Can DHS use removal proceedings instead of rescission?
INA §246 expressly states that prior rescission is not required before commencement of removal proceedings.
Can an immigration judge's removal order rescind LPR status?
INA §246 states that a removal order issued by an immigration judge can be sufficient to rescind the status.
Does USCIS formally rescind adjustments granted by immigration judges?
Current USCIS policy states that USCIS does not initiate rescission proceedings where adjustment was granted by an immigration judge.
Can rescission affect my spouse or children?
Potentially. If a derivative's LPR classification depended on a principal who was never lawfully adjusted, the derivative's status may also require review.
Can USCIS approve my N-400 after my green card is rescinded?
Ordinarily no. Current USCIS policy requires denial under INA §318 and INA §316(a)(1) after rescission.
Can a naturalization applicant receive a NOIR?
Yes, where USCIS discovers within the statutory period that the applicant may have been ineligible when adjustment was granted.
Does the N-336 overturn rescission?
No. N-336 reviews the naturalization denial. The underlying rescission must be challenged in the proceeding governing rescission.
Continue Reviewing Permanent Residence
Rescission, Permanent Residence & Naturalization
Received a NOIR or Concerned USCIS May Challenge the Original Green Card?
The Messersmith Law Firm, P.A. represents clients in complex naturalization and permanent-residence matters involving INA §246 rescission, Notices of Intent to Rescind, adjustment eligibility, visa availability, fraud allegations, INA §318, removal proceedings, N-400 denials, and N-336 hearings.
Request a Rescission ReviewThis website provides general information and does not create an attorney-client relationship. Rescission analysis depends on the actual adjustment date, basis for permanent residence, eligibility at approval, NOIR allegations, personal service, regulatory deadlines, immigration judge proceedings, derivative status, removal issues, jurisdiction, historical law, and current controlling law.