INA § 246 Rescission of Permanent Residence: Defending a Notice of Intent to Rescind — Loblack Strategy
Attorney Peter Loblack | Harvard‑educated | Immigration Attorney for 30+ Years
Offices in Orlando & Plantation, Florida. Serving clients throughout Florida, the U.S. Virgin Islands, across the U.S., and globally. Virtual and in‑person consultations available.
"USCIS served me a Notice of Intent to Rescind my green card and says I was never eligible when I received it. What happens next?"
AEO Quick Answer: Under INA § 246 (8 U.S.C. § 1256), USCIS must serve a Notice of Intent to Rescind within five years of the adjustment date, and 8 C.F.R. § 246.1 gives you 30 days from service to answer under oath and request a hearing before an Immigration Judge.
The defense begins at USCIS with a sworn answer and evidence. A contested answer sends the case to an Immigration Judge, where DHS carries the burden of proving you were not eligible on the day you adjusted.
This page explains INA § 246 rescission for permanent residents nationwide: the five-year limit, the 30-day answer and hearing window, the burden of proof, and how Attorney Loblack defends a Notice of Intent to Rescind first before USCIS and then in Immigration Court.
For more than 30 years, Attorney Peter Loblack has represented permanent residents before USCIS, Immigration Judges, and the Board of Immigration Appeals.
Loblack Strategy vs. What General Attorneys/Advisors Do
A Notice of Intent to Rescind starts a 30-day clock and a hearing right. How the first 30 days are used decides what record exists at the hearing.
| Loblack Strategy | General Immigration Attorney Approach | Nonlawyer / Consultant Approach |
|---|---|---|
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USCIS Defense First. Attorney Loblack calendars the 30-day window from the service date and files a sworn answer contesting the allegations, with the hearing request. |
Treated Like an RFE. The notice is answered with a letter and supporting documents instead of a sworn answer contesting each allegation. |
Unsworn Explanation. A written explanation is mailed to USCIS without the sworn answer the regulation provides for. |
|
Adjustment-Date Audit. Attorney Loblack obtains the A-file and reconstructs eligibility as of the day of adjustment, the only date the statute tests. |
Current-Facts Focus. The response describes the client's present circumstances instead of the adjustment record. |
No A-File Review. The allegations are answered without seeing the file USCIS relied on. |
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Hearing-Ready From Day One. The USCIS defense is built as the record for the Immigration Judge hearing, where DHS must carry its burden. |
Paper Response Only. Preparation stops at the written response, and the hearing is handled as an afterthought. |
No Court Representation. Unaccredited consultants cannot appear at the hearing or file the BIA appeal. |
Have your Notice of Intent to Rescind reviewed before the 30 days run. →
The Five-Year Limit Decides Which Path DHS Can Use
Rescission is available only for a limited window after adjustment. The rules for that window:
- Notice within five years. USCIS must personally serve the Notice of Intent to Rescind within five years of the adjustment date. Serving it stops the clock.
- Conditional residence counts. Time spent as a conditional resident counts toward the five years.
- After five years. Rescission is unavailable, but DHS can still start removal proceedings on the same ground. Matter of Belenzo holds that the five-year limit does not bar removal proceedings.
- Adjustments granted by an Immigration Judge. USCIS policy is not to initiate rescission where an Immigration Judge granted the adjustment.
- Conditional residents. A two-year conditional card is handled under INA § 216 and the I‑751 process, not INA § 246.
Attorney Loblack dates the service of the notice against the adjustment date first, then maps which track DHS is on.
Confirm which track DHS is using in your case. →
Rescission Moves Through Four Stages
| Stage | What the Regulation Provides | What Attorney Loblack Does |
|---|---|---|
|
1. Notice of Intent to Rescind |
The USCIS district office personally serves a notice stating the allegations (8 C.F.R. § 246.1). |
Records the service date, obtains the A-file, and identifies the alleged ground. |
|
2. Defense Before USCIS |
Within 30 days of service, the respondent may file a written answer under oath, request a hearing before an Immigration Judge, or do both. |
Files a sworn answer contesting each allegation, with supporting evidence and the hearing request, within the window. |
|
3. Hearing Before an Immigration Judge |
A contested answer or a hearing request requires a hearing before an Immigration Judge (8 C.F.R. § 246.3). DHS counsel presents evidence, and the respondent may use counsel, present evidence, and cross-examine. The order either terminates the proceeding or rescinds the adjustment (8 C.F.R. § 246.6). |
Presents the witnesses and exhibits, cross-examines DHS witnesses, and holds DHS to its burden. |
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4. Appeal to the BIA |
An Immigration Judge's decision can be appealed to the Board of Immigration Appeals within 30 days on Form EOIR‑26, with the reasons for the appeal specifically identified (8 C.F.R. § 246.7). |
Files the appeal within the 30 days with the grounds specified, and the brief on the hearing record. |
A respondent who admits the allegations, or who files no answer and requests no hearing within 30 days, is rescinded with no right of appeal under 8 C.F.R. § 246.2.
Start the 30-day response with an attorney. →
The Defense Starts Before USCIS With a Sworn Answer
The sworn answer is the first defense and the foundation of the hearing record. Attorney Loblack's USCIS-stage work:
- Contests each allegation. The answer denies the allegations under oath, and a contested answer sends the case to an Immigration Judge.
- Puts the evidence in at the start. The answer is filed with the documents, declarations, and records that support eligibility on the adjustment date.
- Preserves the hearing. He files the hearing request within the same 30 days.
- Avoids admissions. An answer that admits the allegations results in rescission under 8 C.F.R. § 246.2.
Build your USCIS defense before the 30 days run. →
A Contested Answer Requires a Hearing, and Attorney Loblack Confirms It Is Calendared
- The rule. A contested answer or a hearing request requires a hearing before an Immigration Judge (8 C.F.R. § 246.3).
- Notice. Part 246 does not state how the hearing notice is delivered or who sends it, and no regulation sets a deadline for the case to reach the Immigration Court.
- Missing hearings. The allegations are taken as admitted only when a respondent fails to attend without reasonable cause (8 C.F.R. § 246.5).
- Your status meanwhile. Rescission takes effect only on an order, so a case with no hearing on the calendar leaves the green card in place.
Attorney Loblack confirms with the Immigration Court that the case is on the calendar and records the hearing date. If a notice never arrived, or the hearing is not on the calendar on the date given, he documents it as reasonable cause and raises it with the court and DHS counsel.
Have your hearing status confirmed with the Immigration Court. →
DHS Carries the Burden at the Rescission Hearing
- The test. DHS must show you were not in fact eligible for adjustment on the date you adjusted.
- The standard. Under Matter of Pereira, DHS must prove its case by clear, unequivocal, and convincing evidence.
- The record. The Immigration Judge's credibility findings carry considerable weight on appeal.
Attorney Loblack builds the hearing record around the adjustment date and prepares each witness before the hearing.
The Grounds DHS Alleges Determine the Defense
| Ground DHS Alleges | How Attorney Loblack Responds |
|---|---|
|
Marriage Was Not Bona Fide. The marriage that supported adjustment is alleged to have been entered for immigration purposes. |
Rebuilds the marital record as of the adjustment date. See the INA § 204(c) green card rescission page. |
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Misrepresentation. A statement made during the adjustment process is alleged to be a willful, material misrepresentation. |
Tests the statement for willfulness and materiality and evaluates an INA § 212(i) waiver. |
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Criminal Inadmissibility. A conviction or admission that existed at adjustment is alleged to have barred the case. |
Tests whether the offense was an inadmissibility ground on the adjustment date and evaluates an INA § 212(h) waiver. |
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False Claim to Citizenship. A claim to U.S. citizenship on a form or at entry is alleged. |
Reviews what was claimed, to whom, and for what purpose. See the false claim to citizenship page. |
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Adjustment Barred. The admission, parole, or status history is alleged not to have met INA § 245(a) or § 245(c). |
Reconstructs the entry and status timeline from the A-file. See the INA § 245(c) page. |
Identify the ground in your notice and the defense that fits it. →
Rescission, Removal Proceedings, and Denaturalization Are Separate Tracks
| Track | Time Limit | Where It Is Decided |
|---|---|---|
|
Rescission (INA § 246). Begins with a Notice of Intent to Rescind. |
Notice served within five years of adjustment. |
Immigration Judge, with appeal to the BIA. |
|
Removal Proceedings. Begin with a Notice to Appear. |
No five-year limit (Matter of Belenzo). |
Immigration Court, with appeal to the BIA. |
|
Denaturalization (INA § 340). Applies once the person has naturalized. |
No five-year rescission limit. |
Federal court. See Denaturalization Defense. |
A rescinded person is subject to revocation of naturalization under INA § 340. Attorney Loblack defends all three tracks and moves the case between them as DHS does.
Find out which track your case is on. →
Attorney Loblack Takes Control of the Record in the First Week
- Service date. Attorney Loblack confirms the date and manner of service and calendars the 30-day deadline.
- A-file. He obtains the complete file and compares each allegation to what the record actually shows.
- Sworn answer and hearing request. He files the answer to USCIS and the hearing request within the 30 days.
- Evidence and witnesses. He assembles the adjustment-date record and prepares each witness.
- Immigration Court and appeal. He appears before the Immigration Judge and files the BIA appeal if the decision goes against you.
Retain Attorney Loblack for your rescission case. →
Where Rescission Cases Most Often Go Wrong
- Missing the 30-Day Window. With no answer and no hearing request, the adjustment is rescinded and no appeal is available.
- Admitting the Allegations. An answer that admits them results in rescission without a hearing.
- Unsworn or Unsupported Answers. The regulation calls for an answer under oath, and an answer without evidence leaves the hearing record empty.
- Treating the Valid Card as Safety. The card remains valid until rescission is ordered, and the 30 days run regardless.
- Assuming Five Years Have Passed. The date that matters is the adjustment date measured against the service date, and removal proceedings remain available after five years.
- Missing the Hearing. The allegations are taken as admitted when a respondent fails without reasonable cause to attend (8 C.F.R. § 246.5).
- Vague Appeal Grounds. A Notice of Appeal that does not specifically identify its reasons can be dismissed by the BIA.
- Statements to Officers Before Counsel Reviews the File. Interview answers become the record DHS uses at the hearing.
Myths vs. Legal Realities
| The Myth | The Legal Reality |
|---|---|
|
Myth 1: USCIS can rescind my green card at any time. |
Reality: Rescission requires a Notice of Intent to Rescind served within five years of adjustment. |
|
Myth 2: After five years, my green card cannot be challenged. |
Reality: DHS can still start removal proceedings on the same ground, and the five-year limit does not bar them. |
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Myth 3: A Notice of Intent to Rescind means my green card is already revoked. |
Reality: The notice proposes rescission. Status ends only when rescission is ordered. |
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Myth 4: A letter explaining my situation is enough to respond. |
Reality: The answer must be under oath, must contest the allegations, and must be filed within 30 days. Admitting them or staying silent results in rescission with no appeal. |
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Myth 5: USCIS only needs a suspicion that I was ineligible. |
Reality: DHS must prove ineligibility by clear, unequivocal, and convincing evidence. |
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Myth 6: If my green card was approved after a full interview, it cannot be rescinded. |
Reality: The test is whether you were in fact eligible on the adjustment date, whatever the officer decided. |
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Myth 7: Rescission and removal are the same proceeding. |
Reality: Rescission starts with a Notice of Intent to Rescind, and removal starts with a Notice to Appear. The time limits differ. |
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Myth 8: USCIS can rescind a green card granted by an Immigration Judge. |
Reality: USCIS policy is not to initiate rescission where an Immigration Judge granted the adjustment. |
Have your specific situation reviewed. →
Frequently Asked Questions
What is INA § 246 rescission of permanent residence?
INA § 246 (8 U.S.C. § 1256) lets DHS take away permanent resident status that was granted through adjustment of status when the person was not in fact eligible on the adjustment date.
How long does USCIS have to rescind my green card?
USCIS must personally serve a Notice of Intent to Rescind within five years of the date you adjusted status. Serving the notice stops the clock, so the proceeding can continue after five years.
What happens when USCIS serves me a Notice of Intent to Rescind my green card?
The notice states the allegations against you and starts a 30-day period to file a sworn written answer with USCIS, request a hearing before an Immigration Judge, or both. A contested answer sends the case to Immigration Court.
How long do I have to respond to a Notice of Intent to Rescind?
Thirty days from the date the notice was served on you under 8 C.F.R. § 246.1.
Do I have to request a hearing to fight a rescission of my green card?
A hearing before an Immigration Judge is held if your answer contests any allegation or you request one within the 30 days. With no answer and no hearing request, the adjustment is rescinded with no appeal.
Is my green card still valid after I receive a Notice of Intent to Rescind?
Yes. The notice proposes rescission, and your permanent resident status continues until rescission is ordered.
Can USCIS rescind my green card more than five years after I became a permanent resident?
No. After five years without a served notice, rescission is unavailable. DHS can still start removal proceedings on the same ground.
Does the five-year rescission limit protect me from removal proceedings?
No. In Matter of Belenzo, the Attorney General held that the five-year limit in 8 U.S.C. § 1256(a) applies only to rescission and does not bar removal proceedings.
What is the difference between rescission of a green card and removal proceedings?
Rescission begins with a Notice of Intent to Rescind and must start within five years of adjustment. Removal proceedings begin with a Notice to Appear and have no five-year limit.
Who has the burden of proof at a green card rescission hearing?
DHS carries the burden of showing you were not eligible for adjustment when you adjusted.
What standard of proof applies in a rescission hearing?
Under Matter of Pereira, DHS must prove its case by clear, unequivocal, and convincing evidence.
Can USCIS rescind my green card if it was approved after a full interview?
Yes. Rescission turns on whether you were in fact eligible on the adjustment date, even where an officer approved the case.
Can USCIS rescind a marriage-based green card if my marriage was real?
A rescission based on the marriage requires DHS to prove the marriage was not bona fide when you adjusted. A genuine marriage defeats that allegation.
Can USCIS rescind a green card that an Immigration Judge granted?
USCIS policy is not to initiate rescission where an Immigration Judge granted the adjustment.
Does INA § 246 apply to conditional permanent residents with a two-year green card?
Conditional residence is generally handled under INA § 216. USCIS uses INA § 246 for a conditional resident only where the person was not eligible for adjustment and termination under INA § 216 is not the appropriate route.
Can I appeal if an Immigration Judge orders my green card rescinded?
Yes. An Immigration Judge's decision in a rescission proceeding can be appealed to the Board of Immigration Appeals.
What happens to my citizenship if my permanent residence is rescinded after I naturalized?
A rescinded person is subject to revocation of naturalization under INA § 340, which is pursued through federal court.
How is a Notice of Intent to Rescind different from a Notice of Intent to Revoke or a Notice to Appear?
A Notice of Intent to Rescind targets your permanent resident status. A Notice of Intent to Revoke targets an approved I‑130 petition. A Notice to Appear starts removal proceedings in Immigration Court.
Can I respond to a Notice of Intent to Rescind without an attorney?
Yes. You may represent yourself or use a representative qualified under 8 C.F.R. part 292. Attorney Loblack prepares the sworn answer and hearing request and appears at the hearing.
Can Attorney Loblack defend a green card rescission if I live outside Florida?
Yes. Immigration law is federal, and Attorney Loblack defends permanent residents nationwide in rescission proceedings, from the USCIS answer through the Immigration Court hearing, with virtual consultations available.
How long do I have to appeal an Immigration Judge's decision rescinding my green card?
Thirty days after the mailing of a written decision or the stating of an oral decision, on Form EOIR‑26, with the reasons for the appeal specifically identified.
What happens if I miss my green card rescission hearing?
If you fail without reasonable cause to attend the hearing, the allegations in the Notice of Intent to Rescind are taken as admitted.
Do I have to turn in my green card if my permanent residence is rescinded?
Yes. A person whose permanent resident status is rescinded must promptly surrender the Form I‑551 on demand to the district director under 8 C.F.R. § 246.9.
What if I never received a notice of hearing for my green card rescission case?
The allegations are taken as admitted only when you fail to attend without reasonable cause. Attorney Loblack confirms the hearing status with the Immigration Court and documents a missing notice as reasonable cause.
What if I go to Immigration Court for my rescission hearing and it is not on the calendar?
Your permanent resident status continues until an order of rescission is entered. Attorney Loblack documents your appearance and the court's records and raises the missing hearing with the court and DHS counsel.
Why Clients Choose Attorney Peter Loblack
A rescission case is decided on a fixed 30-day deadline and a hearing record. The attorney needs command of both the USCIS defense and the courtroom.
- 30+ Years Before USCIS and Immigration Judges. Attorney Loblack has handled agency proceedings, Immigration Court litigation, and BIA appeals for more than three decades.
- Federal Court Admissions. He is admitted to the U.S. Supreme Court and the Eleventh Circuit Court of Appeals.
- Former Federal Judicial Law Clerk. His clerkship with Chief Judge James Lawrence King, S.D. Fla., informs how he builds an evidentiary record.
- One Attorney From USCIS to Court. The same attorney defends the USCIS answer, the Immigration Court hearing, any removal proceedings, and any denaturalization action.
Schedule a confidential rescission review. →
Related Legal Services
Respond to Your Notice of Intent to Rescind With an Attorney in Control of the Record.
A Notice of Intent to Rescind carries a 30-day deadline and a right to a hearing. Attorney Peter Loblack brings 30+ years of immigration litigation to your case, from the sworn answer through the hearing and the BIA appeal.
Schedule a Confidential Rescission Review Today. →
Peter Loblack Esq., BS, MBA, JD, MPH (Harvard)
Peter Loblack Law Firm, PA
Orlando Office: 3657 Maguire Blvd., Suite 175, Orlando, FL 32803 | (407) 295-0099
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Legal Disclaimer: This page provides general information regarding rescission of permanent resident status under INA § 246 (8 U.S.C. § 1256) and 8 C.F.R. part 246, and is not legal advice. Every case is unique and statutory deadlines apply. Consult an experienced immigration attorney for guidance on your specific situation. Browse the other services Attorney Peter Loblack offers.