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.

It wouldn't be expired. It would have been revalidated by USCIS - for another 4 months. It will be expired by the time she gets to the interview. Which is better? That depends on who's looking at it. CSC was giving us the worst of both world's before. It said it would review them - but nothing ever happened. Going back to the old policy of sending out an expiration letter is preferable to that. Naturally, a reaffirmance without comment might be preferable to a petitioner/beneficiary, if it comes quickly enough. It's what the consulate wants too. It wants the memorandum it wrote to be read by someone in USCIS. But why should a petitioner have to sit around and wait 23 months for that to happen? The law is clear. They're expired. They can't be revalidated except for the purpose of approval. That's what the reg says. How does VSC justify the review of expired petitions? I have an idea. But it's not something I'm going to second-guess. I'm fine with VSC reviewing expired petitions as long as they're reaffirming the approvals. I think the whole NOID process for expired K-1's is a waste of time and is outside the law. This became important in July 2007, when VSC & CSC became the only service centers processing K-1's. Only a couple of years ago, all 4 service centers were processing them. BTW, I knew it would become a problem. I wrote an article about it in 2007 I warned a Chief of Section it would be a huge problem. And it was. DOS proceeded to make it worse when some consulates refused to approve visa apps based on re-filed petitions until the old petition was reviewed. CSC compounded that problem by saying it would review them - and never getting around to it. Now it's back to normal, I hope. At least, I hope it's better than it was a few months ago when CSC said it was reviewing expired K-1's from 2002. BTW, I don't don't know if it's coincidental that this is happening at the same time that five or six good lawyers were preparing to file a class action in the Central District of California. Our lead counsel doesn't think it's a coincidence. The K-1 review issue was the key. It was the one substantive law issue we knew we would win. Either there is review or there is not. If there is - it's USCIS error. If there is not review - it's USCIS error. On that one issue of substantive law, we were going to win. We might have gotten de-railed on procedural issues. But that is the one issue of substantive law issue we knew we would earn our fees back.

I'm the wrong person to ask about that. At any rate, if that's the reason - I'm not sure it's working.

I know Guz doesn't give reasons for refusals. Some consulates do. Disclosure is definitely the best way to go. If there were disclosure, then a petitioner wouldn't be re-filing blindly. There is the appearance of abuse in not informing a petitioner why a visa application by his or her loved one has been refused. Where the process is not transparent - it looks suspicious. And it's all so unnecessary. All they have to do is state the reasons on the DS-194. It would defuse a lot of the problems. But the lack of transparency causes huge problems of perception. I've done so many of these cases that I will already know reasons why a visa has been denied with 80-90% certainty just by interviewing P&B. Now & then, there will be a case that just baffles me. But I don't see them very often. But I think CSC is doing the right thing here. The revocation process can drag on for years. And in the case of K-1's, there is no law or regulation justifying it.

1. How long are you willing to wait? LINK Page 2 Sec.2 OTOH, VSC seems to be doing it the way you describe. I've seen a few petition approvals reaffirmed without comment out of VSC the past two weeks. I'm of the opinion that it's pointless for petitioners and consulates to wait for service centers to review petitions that have already expired and cannot be revalidated except for the specific purpose of approval. If this is CSC's new policy (once again), I hope its legislative liaison section has been informed. They need to get the word out..

So that return process will remain. It's just that once it gets to CSC, there will be no review of expired K-1's. And there shouldn't be. So can the Refuse & Refile cycle continue on & on? (emphasis added) P&B still have to address the issues of why the petition was denied in the first place. In my opinion, that includes re-files too.

That is sooooooo much better than being stuck in limbo. Lee, After having stuck in limbo for a 10 month blue slip I can only say AMEN Now, I am very thankful that the USCIS re-approved our case without ever revealing what the DOS denied us over, thus no rebbutal letter from me. It must have been "real" legal. tsap seui The p6c marker is still in the file, because the consulates place it there. But it doesn't become a "hard" 212(a)(6)(c )(i) finding, because the petition was not revoked (expired K-1's can't be revoked anyway). The marker should be removed at the next interview. Sometimes, it takes a day or two to remove it if the beneficiary is approved. This was CSC's policy before. Then in 2008, it mysteriously changed it. I have a paper trail dating back to April 2007. I saw the change about December 2008. Now, Spring, 2009, CSC has apparently come to its senses and understood that expired K-1's cannot be reviewed or revoked. Why do I think it's good news? At least the procedural issue is resolved. There is no authority to review or revoke expired K-1 petitions. Acting Director Scharfen was correct in his May 23, 2008 memo. But what is DOS going to do? That remains to be seen. A lot of consulates have traditionally approved refiles, if they're satisfied with the merits. GUZ & HCMC had the policy of sitting on them waiting for review to happen. Has the consular side of the issue been resolved? We'll see. VSC is reaffirming old K-1 petition approvals without sending NOID letters. So there is still review of expired K-1's at VSC. So there is still a split in the way the Service Centers are handling these cases. Stay tuned.

A gent called me from the US today. He's not a client yet. His lawyer had referred him to me. He said, "Mr. Ellis, I just got an approval notice for my K-1 from Vermont Service Center. The consulate had sent it back. Now what do I do? Do I send in a rebuttal?" Nope. Don't send in rebuttals to approval notices. "Congratulations," I said. "You won. Now get her prepared for next interview that's coming down the road." VSC had - like I mentioned in my post above, reaffirmed his petition approval without sending out an NOID. It found the consulate's memorandum legally insufficient, and it reaffirmed. Service Centers have the authority to do that. I wish CSC would start doing it more often with I-130's.

A new client walked into the office today with a letter from CSC. The letter read: NOTICE OF DECISION When I read those two words, I thought "Oh no...don't tell me you didn't respond to an request from USCIS," The subject was a K-1 petition filed in the Spring of 2008. The letter went on in pertinent part: [insert Rebel Yell here.] Does this mean CSC has finally regained its sanity and the same letter will go out to thousands of petitioners who are waiting for something to happen on expired K-1's returned by consulates? It's too early to tell - But this is a GREAT SIGN! Now all we have to do is make sure the DOS gets the message. It can no longer sit on subsequently-approved (re-filed) K-1's waiting for CSC to review it. Because the way it looks --- that ain't gonna happen! I'd like to think someone got wind of some Federal litigation that was coming down the pike on that very issue. We already had five attorneys on board in the 9th Circuit. One of them, a very experienced Federal litigator. But if CSC has resolved the issue, I guess I won't get rich off winning that case. And on the issue of reviewing expired K-1's returned by consulates we were going to win. If AD Scharfen was wrong in his May 23, 2008 memo and there is authority to review them - we win. If he was right and there was no authority to review them - we win. Consulates should stop sitting on re-files and waiting for CSC to do something, someday. Because someday never comes. At least, if this letter indicates yet another change in CSC's policy on reviewing expired K-1's returned by consulates, that someday ain't coming. CSC has returned to its former (correct) position. Expired K-1's cannot be reviewed. That leaves VSC. But VSC is reaffirming the petitions without sending out NOID's. A round of applause for the California Service Center.

I've been retained on at least a half-dozen new NOIR cases from CSC in the past two weeks. They're from Vietnam, Mid-East and China. CSC is moving these out. Rather than examining the consular memorandum's assertions, as I mentioned VSC was doing, most CSC adjudicators seem to be just quoting the consular memorandum. I saw one NOIR today though, where the adjudicator had reduced the case to a single issue. Thumbs up to him or her! But if you're an I-130 petitioner in the US who has had your petition returned to CSC - get your evidence ready. Remember "Matter of Ho"- quoted in my case law thread. You're going to have to prove your case all over again. So get your evidence of trips abroad, of frequent and lengthy communication, phone bills, emails, chats, photographs. Get them all together. Two hole punch them at the top and index them by tabs. The most bothersome thing to get together are the translations. It's more of a problem in Vietnam than in my Chinese or cases in other consulates. But if you have hundreds of emails & chat pages that need translating from Mandarin - get to work. Or else hire someone. Because these things are flying out of CSC right now!

I've had a few people report to me that VSC has reaffirmed their petitions without any NOIR/NOID letters being sent. That speaks highly of the VSC adjudications staff. They are reviewing consular refusals and finding some are legally insufficient to justify revocation proceedings. So they reaffirm the approvals and send the petitions back to the various consulates that should have never refused the visas in the first place. Thumbs up to VSC adjudicators! They know what they are doing. This is nothing new with Vermont. But I hadn't seen it in awhile. Suddenly, I've seen several pop up. Let's hope CSC takes note. That is a sure-fire way to clear up the backlog of expired K-1's at CSC.