ellis-island

The bad news is Tran v. Napolitano was dismissed on March 29, 2011. Good news? I exchanged emails w/Brent. He said he'd always planned to have to win this on appeal. What does this mean? It means the current system will continue for the future. K1's will expire. Petitioners will have to marry or re-file a K-1 with an IMBRA Multiple Petition Limit waiver. To me, the worst part of this dismissal is the Judge did not directly address the p6c1 issue. The court simply ruled that plaintiffs had not shown they were damaged by this weird procedure of creating misrepresentation findings out of thin air. I think the p6c issue is still to be resolved. And I remain convinced that p6c1 markers and 'alien smuggling' findings, will be the subject of the next class action. As soon as I get a link to the decision that is outside AILA Info-Net, I'll post it. For those who do not know about p6c's. http://www.ilw.com/a...0713-ellis.shtm *** Brent is suing to get 30 day review of denied K1 visas. He's also suing on the P6c1 issue. Some Guangzhou people will remember how the system was two years ago, when Petitioners were being told they'd have to wait years to have an expired K1 reviewed. Whatever the drawbacks of the present system of re-filing & re-interviewing are, it's better now than it was two years ago.

Hi. I'm very sorry. Someone hacked into my Google Mail account. I have fixed it. But I'm moving to marcellislaw "AT" yahoo.com -- contact me there in the future. I apologize to everyone. I'm sick about this. m.e.

Consulates don't take a lot of time to investigate things that pop up on their background checks. They use it as a pretext to refuse a visa and send a case back. That is basically what their bosses demand of them. Yeah, ideally, they'd ask about it. But they rarely do. Yeah, it's none of their business. But that won't get your spouse to America. Petitioners still sharing assets or debts with their ex-spouses -- need to explain it up front. That's all. Petitioners shouldn't expect the consulate to dig around to learn what he or she already knows. The petitioner should explain it to them - and preferably to USCIS - in advance.

This is pretty normal, even on reaffirmed cases. Consulates always play "where's the ex" games. I always address that issue up front. Consulates do background checks on petitioners -- just like credit agencies. They check addresses, accounts, vehicles, drivers' licenses, etc. Somewhere, there may be something showing P & his ex-wife still sharing something. To return the petition consulates have to find something USCIS did not know about & that something must have been important enough for USCIS to deny the petition. Honestly, the where's the ex issue should have been taken care of on the first filing. Any petitioner who doesn't address it is a sitting duck. But you can probably still get this visa approved if you just give 'em the information they want.

My last trip to Guangzhou got me to thinking about this. I saw beneficiaries being handed I-601 waivers for having made a material misrepresentation in a previous petition. I saw their baffled husbands go in and ask what exactly was the misrepresentation. Guangzhou didn't know. It was telling people that USCIS made the findings. USCIS did not make the findings - DOS did, via the process I describe in this article. So I decided to explain the p6c1/misrepresentation issue again in an article - but in more detail. P6c's - Department of State's War on Love, Logic and Law. This happens in every busy consulate in the world. I'm not singling Guangzhou out. In fact, it's become more fair over the last year. But I am singling DOS managers in the Visa Office - DC - out here. This procedure is causing a lot of damage to American families. Material misrepresentation findings are being spun out of thin air and in the vast majority of cases, nobody has misrepresented anything.

This case can affect CR-1 petitions in at least one way. I think the most laudable part of this lawsuit is the part where he asks that the practice of consulates placing p6c1 markers in beneficiaries' computer files be halted. These are essentially automated misrepresentation findings. They are based on a legal fiction, that if a consulate refused a visa, then somebody must have misrepresented something. When I was in Guz last week, I saw two of these handed down to CR-1/IR-1 beneficiaries. Their K1's had been refused previously. The consulate probably handed out a lot more than two. In both the cases I saw, the beneficiary did not know what had been misrepresented. The petitioner did not know what had been misrepresented. And the consulate is telling them that USCIS made these findings. It did not. These are purely a DOS phenomenon. They are based on an obscure part of the FAM that very few people -- including the vast majority of USCIS adjudicators & immigration lawyers, even know about. It's dumb. It's unnecessary. And it has damaged countless numbers of US citizen families. 9 FAM 40.63 note 10.1 That part of CR1/IR1 visa processing will change if Brent wins this thing. And then there will be the interesting question about what to do about all those earlier misrepresentation findings where nobody actually misrepresented anything. If someone has made a material misrepresentation, it ought to be specifically incorporated into the record. But it's not. DOS is essentially making automated misrepresentation by default findings. These findings are also being made, BTW, where USCIS revokes an IR1/CR1 petition in a revocation proceeding. So the class suit can affect IR1's/CR1's in that respect.

Actually it does apply to Guangzhou. All consulates are included in the suit. And the K1 return procedure he is suing on is the same world-wide. Guangzhou doesn't return as many K1's as it used to. But it will be affected by this suit. When I was in Guangzhou, I saw I-601 waiver applications being handed out to beneficiaries. These are very bad news. You don't ever want this to happen to your loved ones. It means your loved one is inadmissible for life without a waiver of extreme hardship. DOS is telling people the inadmissibility finding against the beneficiaries was made by USCIS. No. it wasn't. It was made by DOS. And it's made without anybody ever knowing exactly what was misrepresented. Petitioner's don't know. Beneficiaries don't know. And consulates don't even know what agency made the finding. It's very dumb and a lot of American families are being damaged by this. Brent covered that phenomenon too. If he wins on any single issue, I hope it's that one. A lot of US families are damaged by DOS's mis-interpretation of the legal term "Misrepresentation". Here's the suit. http://www.entrylaw.com/images/Tran_Complaint_signed_.pdf

Tran versus Napolitano I was in Guangzhou last week, I got a call from Brent Renison. My cell phone said 4 a.m. It was actually 5 a.m. He said, "Marc, I'm filing a class-action on K1's", I said, "It's 4 in the morning,". Then I asked, "Which consulate?" He said, "Ho Chi Minh City," After we talked a bit, I went back to sleep thinking, "That's a really nice way to start out any morning." The last class action Brent Renison filed - he won. It got rid of the Widow Penalty for widowed spouses of US Citizens. I've written a lot about the problem of K1 returns by consulates, expirations & reviews. Brent told me he'd read what I wrote on INFONET. Brent is seeking review rather than expiration, but he wants it within 30 days. There is another serious problem I hope can be raised in the litigation. That's the issue of automated misrepresentation findings. I saw Guangzhou handing out I-601's to mystified beneficiaries every day on that issue. It's erroneously telling petitioners that the misrepresentation findings were made by USCIS, during K1 NOID's. No they weren't. They were made by DOS. Petitioners don't know exactly what was misrepresented. Beneficiaries don't know what was misrepresented. Conoffs don't even know what agency made the findings. Yet, US Citizen petitioners are being told their spouses are inadmissible for life every day. And nobody can say exactly why. I know why. And it's DOS that needs to clean up its act on this issue. It is causing serious damage to US Citizens. But Brent's lawsuit EXTREMELY IMPORTANT NEWS for any US Citizen petitioners who have had K1's refused at any consulate. Stay tuned.

Here is AILA's amicus brief in the Qiyu ZHANG matter before the Board of Immigration Appeals. http://www.aila.org/content/default.aspx?docid=30587 Like the issue of K4's, I think it's reasonable for a court to construe the intent of Congress as allowing age-outs to adjust status.

It looks to me like Congress intended for K4's to adjust. Otherwise, I have to ask, "K4? For what?" In my opinion, the agencies should interpret the law that way in their regulatory guidance. Congress must have intended for K4's to be eligible for adjustment. On that link, the welcome letter is not an adjudication. Many times, applicants who are ultimately denied, receive that I-181 notice.

It looks like Congress screwed up big time, in the case of K4's who were eighteen or over at the time the K3 beneficiary married the USC petitioner. If the K4 was 18 or over at the time of the marriage between the K3 beneficiary and the US Citizen petitioner, he or she will not be eligible to adjust status to permanent residence after being admitted to the United States. This comes from the Department of State Website. A US Citizen petitioner cannot have an step-child I-30 petition approved if the marriage that created the relationship occurred after the child reached 18 years of age. The Immigration & Nationality Act defines a stepchild as: So think about the K4 stepchild beneficiary who is eighteen or over at the time the marriage occurs. After the stepchild enters the US as a K4, he or she is not qualified to be sponsored as a step-child. Not only that, a K4 can't change to another status. And the K3 parent, eventually has to change status to permanent residence. Once that happens, the K4 derivative status dies. And the K4, who has done nothing wrong at all, is suddenly out of status. Congress could not have intended this when it enacted the LIFE Act in 2000. What is the point of allowing K4's in these circumstances to enter the US, if ultimately they cannot change to permanent resident status?

There's a trap for the unwary here. http://www.state.gov/documents/organization/87011.pdf *** Every time a K1 or family visa is refused at a consulate, a fraud marker is placed in beneficiary's file. It doesn't matter if the officer's reasons are half-baked or factually incorrect. That fraud marker is still hanging there over your beneficiary's future. It's called a P6C marker. And it will continue to hang there until you either win a revocation, or the officer removes it. When the petition is returned to USCIS, there is a revocation proceeding for family petitions. Petitioner is sent an NOIR. Most of the time with CSC, the reasons in the NOIR mirror those written by the consulate. It's unfortunate that CSC doesn't seem to stop and measure the legal sufficiency of consular conclusions. But I'll take whatever I can get. CSC's failure to measure legal or factual insufficiency makes these things easier for lawyers to win. But if the petitioner does not succeed in defeating that NOIR and proving the consulate wrong, those half-baked conclusions the consular officer may have written in the memorandum become findings of facts by USCIS. That means your loved one has become inadmissible for life, under INA 212(a)(6)(c )(i), (Misrepresentation). You can apply for a waiver. But waivers are discretionary. And they are damned difficult. This fraud trap set by DOS made no sense with K1's. For instance, how can an expired petition be revoked? It's like beating a dead horse. The thing is dead. Why are they still flaying away at it? But DOS kept flaying away until last summer. It pretended the 120 day life period of K1 approvals did not exist. Now -- that is no longer a problem. If an NOID is sent prior to a new K1 being approved, DOS doesn't even know about it. It hasn't received the petition yet. But the issues raised by the consulate in the previous petition are addressed, because CSC now pulls the file and recites them in an NOID to the petitioner. So once CSC approves the new petition, after the petitioner wins the NOID or NOIR, that hanging fraud marker in the beneficiary's file has to be taken out. I'd hope that DOS is no longer putting the damned things into K1 beneficiary's files anyway. It's pointless. An expired K1 is a dead horse. It cannot be revoked. There is no legal or logical reason 'for that fraud marker to ever take hold in a K1 case now.

Hi. I have some news for you. Recently, I was retained on a K1 NOID from a consulate in another part of the world, (not GUZ or HCMC). There were some new features to the NOID that some of you might want to know about. *** For background: I've written on this topic before, here: http://candleforlove.com/forums/index.php?showtopic=37301 And here http://candleforlove.com/forums/index.php?showtopic=37279 *** This new case was one where the petitioner had filed a 2009 K1 petition and the beneficiary was refused at the consular interview. California sent petitioner a notice of decision that the petition had expired, but that she could refile and pay a fee. So she refiled and paid the fee. (And she asked for the IMBRA waiver, which by statute is not necessary for the same beneficiary.) Anyway, before approving her new K1 petition, CSC sent her an NOID, (Notice of Intent to Deny). And she was required to respond to it within 30 days. Here is the interesting part, the allegations in the NOID came from the previous consular interview. So, CSC had pulled the previous K1 petition file and quoted the consular officer's reasons for denying the previous K1 visa application. (Those reasons were written in the return memorandum.) But CSC had done this in the context of a new petition. Remember, the new petition has not been approved yet. It has a 2010 case number. The old petition was approved & expired. It had a 2009 case number. So CSC would be using the 2009 reasons to justify denying the 2010 petition. The old 2009 K1 petition and the consular memorandum were never reviewed UNTIL petitioner filed a new K1 petition for the same beneficiary. At that point, CSC promptly reviewed them and sent out an NOID. This is a better & fairer system for US citizen petitioners than what CSC & the consulates were doing last year. Some of you might recall, there was almost a class-action lawsuit against CSC over the issue of reviewing expired K1's returned by consulates. Consulates were sitting on re-filed petitions waiting for CSC to review them -- and that was taking years. This is not a problem now. There is no danger of a consulate sitting on the case waiting for CSC to move -- because the consulate does not have the new case yet. It hasn't even been approved. There is no danger of waiting years for CSC to review an expired K1 petition that has been returned by a consulate -- because that old petition is dead. It has expired. And the consular reasons for refusing it have died with it, UNLESS the petitioner files a new K1 petition. At that point, the consulate's reasons are revived and addressed in the NOID procedure. Personally, I think this is a better system all around. What should you do? If you're filing a second K1, make sure you respond in advance to the reasons the consulate refused the first visa application. For instance, if one of the problems was photographic evidence, include a lot of photos. If the consulate concludes that one party is still living with an ex-spouse, include evidence that it ain't so. If you don't know why it was refused, you need to find out. The vast majority of the time, I already know why a consulate refused a case just by interviewing the parties. Even if the consulate doesn't list them on the OF-194 refusal sheets, I can usually figure it out. Anyway, you should do that as a matter of practice anyway. If you file an I-130 after a K1 was refused, address the reasons it was refused when when you file. That may save CSC the necessity of sending you an NOID (K1's) or an NOIR (CR/IR-1's). Finally, another reason I like this system is that it removes the old inadmissibility trap found in 9 FAM 40.63 n8.1 that ruins so many cases. I'll get to that in the next post.

Here is a link: http://www.uscis.gov/files/article/FactShe...ns__9Apr09_.pdf Here is the language: It doesn't say much. I'll comment on what it says and what it doesn't say later on when I have some more time.

I spoke to the Chief of the IV Section today. Anyway, she's aware that there will be no review of expired K-1 petitions by USCIS/CSC. She confirmed, at least verbally, that new K-1 visa applications, based on new K-1 petitions filed after the case was previously refused, will be "adjudicated on the merits", by the consulate. The consulate will not sit on them awaiting a review that will apparently won't be happening in CSC. I'm still not sure why VSC is reaffirming these petitions en masse. But that seems to be what's happening. CSC lets them expire & allows Petitioner to re-file. There is still a split. But this at least is a step forward. This consulate won't sit on subsequently filed K-1's by the same petitioner for the same beneficiary. It joins most US Consulates in the world in that policy. Now I'll be interested to see if Ho Chi Minh City has gotten the message. That's the consulate that started the whole nutty policy in the late summer, early Fall of 2007. It seemed like a good idea at the time, I guess. And it damned near resulted in mass litigation against DHS. BTW, I've heard just gossip that her tour of duty here is almost over. I can't confirm if that's true or not. It's none of my business. I got the answer I wanted. I wish her great success in whatever faraway place they dispatch her to.