ellis-island
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Posts posted by ellis-island
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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.
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Hi Mark;
Why having still contacts with the ex is deemed to be a non bonafide marriage ??? A lot of couples who have non nasty divorce still be congenial toward each other. Especially ,if the previous marriage was lasted a long time or there are children involved ,etc....
Unless there's a reason to indicate that the current marriage is " arranged " somehow for immigration benefit, be otherwise , why would that be a non bonafide marriage?
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.
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UPDATE:August 7,2010
she had the interview on August 4th,2010 .all was going well and consular starting doing a pink,then stopped and gave her a blue paper,strange.Now they want my EX spouses name(which they already have),SSN,current address,and phone #. Also want a statement about how I met my Ex,why we divorced,how long we lived together before separation or divorce.why they want her SSN is beyond me and should be something my Ex should furnish due to privacy.They also want a notarized copy of my passport(which they charge $50.00 for).It is back to USA to start gatering info again.
Sounds like they are being very nit-picky.
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.
9 FAM 42.43 note 2.19 FAM 42.43 N2.1 "Reason to Believe"
(CT:VISA-872; 03-23-2007)
In general, knowledge and reason to believe must be based upon evidence that USCIS did not have available at the time of adjudication and that such evidence, if available, would have resulted in the petition being denied. This evidence often arises as a result of or during the interview of the beneficiary. Reason to believe must be more than mere conjecture or speculation—there must exist the probability, supported by evidence, that the alien is not entitled to status."
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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.
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Any CR-1 suits being filed against the Hong Kong Consulate in the near future? I'm down with that...hehe...kidding, but that does sound like potentially good news for K-1 filers. In my humble opinion there is far to great of leeway for the consulates to operate and make decisions that effect the citizens lives with no accountability, oversight or even a requirement to justify and make known to the petitioners, their (the CO's) decisions with a clear explanation or reason for the questions or concerns the CO's may have, whether valid or not, in denying a visa to our wives and fiances (or husbands as the case may be). They should at a minmum be required to state their specific objection in a specified period of time, say 60 days max with some clear guidelines for appeal of denials for the petitioners.
Like that will ever happen...
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.
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.
9 FAM 40.63 note 10.1 Misrepresentation in Family Relationship Petitions
Pursuant to 8 CFR 205, invalidation of a labor certification for
fraud in accordance with the instructions of USCIS or the
Department of State automatically revokes an employmentbased
immigrant visa (IV) petition. On the other hand,
USCIS retains exclusive authority to disapprove or revoke
family-relationship IV petitions. Thus, a misrepresentation
with respect to entitlement to status under a familyrelationship
petition, e.g., document fraud, sham marriage or
divorce, etc., cannot be deemed material as long as the
petition is valid. Upon discovery of a misrepresentation, you
must return the petition to the appropriate USCIS office. If
the petition is revoked, the materiality of the
misrepresentation is established.
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Wow! that is a bombshell. Too bad he didn't include GZ in his suit. Please keep us posted Marc.
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.
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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.
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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.
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Here is an interesting contradiction to the K-4 dilemma.
http://candleforlove.com/forums/index.php?...c=34560&hl= (K-4 adjusted even though marriage was after step-child turned 18)
But yes, if future step-child is 18 or older at the time of marriage, then a K-1/K-2 is the better option. Age of children is a serious consideration as to where to get married (Over there or in the states)
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.
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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.
How does a K-4 child adjust status in the U.S.?The K-4 child will not be able to file for adjustment of status in the U.S.
until the U.S. citizen parent/step-parent files a I-130 on behalf of the
child. If the U.S. citizen parent/step-parent never files the I-130
petition, the immigrating parent may do so once he/she has obtained
legal permanent resident (LPR) status, but the child would have to wait
for an available visa number. Finally, the immigrant parent, upon
adjusting status will no longer be in K-3 status, therefore, the child will
no longer be in lawful K-4 status, since this is merely a derivative
classification, and that child would begin to accrue unlawful presence.
Can those with K-3 and K-4 visas change to another non-immigrant visa
category in the U.S.?
K-3/K-4 visa holders cannot change status in the U.S. to another non-
immigrant visa category.
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:
"...a stepchild, whether or not born out of wedlock, providedthe child had not reached the age of eighteen years at the time the
marriage creating the status of stepchild occurred;"
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?
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There's a trap for the unwary here.
9 FAM 40.63 N10 MISCELLANEOUS9 FAM 40.63 N10.1 Misrepresentation in
Family Relationship Petitions
(CT:VISA-1030; 09-22-2008)
U.S. Department of State Foreign Affairs Manual Volume 9¨DVisas
9 FAM 40.63 Notes Page 25 of 29
Pursuant to 8 CFR 205, invalidation of a labor certification for
fraud in accordance with the instructions of USCIS or the
Department of State automatically revokes an employment-based
immigrant visa (IV) petition. On the other hand,
USCIS retains exclusive authority to disapprove or revoke
family-relationship IV petitions. Thus, a misrepresentation
with respect to entitlement to status under a family relationship
petition, e.g., document fraud, sham marriage or
divorce, etc., cannot be deemed material as long as the
petition is valid. Upon discovery of a misrepresentation, you
must return the petition to the appropriate USCIS office. If
the petition is revoked, the materiality of the
misrepresentation is established.
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.
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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.
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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.
Office of Communications
Fact Sheet April 9, 2009
Immigrant Visa Petitions Returned by the State Department Consular Offices
An approved immigrant visa petition may be revoked by a U. S. Citizenship and Immigration Services
(USCIS) officer authorized to approve such petitions.
Reasons for Revocation
When USCIS has previously approved an immigrant visa petition, the U.S. Department of State (DOS) may grant a family-based or employment-based immigrant visa to the petition¡¯s beneficiary and qualified derivatives. A petitioner is defined as the family member or employer (or the employer¡¯s agent) who submitted the petition to USCIS. A beneficiary is an alien family member or employee who will seek admission to the United States upon approval of the petition and issuance of the appropriate visa from DOS.
The most common types of immigrant visa petitions are the Form I-130 (Petition for Alien Relative) and the Form I-140 (Immigrant Petition for Alien Worker). Either of these petitions may be revoked at the
discretion of USCIS upon notice or, under certain prescribed circumstances, automatically. See 8 CFR 205.1 (listing appropriate grounds for automatic revocation), 8 CFR 205.2 (revocation on notice); see generally INA section 205 (specifying that revocation of immigrant visa petitions is discretionary). If a DOS consular officer discovers during the course of a visa interview that the underlying petition should not have been approved, or is no longer approvable, the petition may be referred back to USCIS. In such cases, the returned petition should be accompanied by a memorandum explaining the reasons the approved petition should be revoked. Once returned, a USCIS officer will review the petition and DOS¡¯s
findings, and may either:
• Find that the petition is not revocable and return the petition to DOS with an explanation
of the decision not to revoke the petition;
• Issue a Notice of Intent to Revoke to the petitioner; or, if warranted,
• Issue a Notice of Automatic Revocation to the petitioner.
Revocation
In certain instances, such as the death of the beneficiary or the petitioner, or termination of registration under INA section 203(g) (failure of the alien to timely file an application for an immigrant visa petition), an approved petition or self-petition is automatically revoked as of the date of approval. See 8 CFR 205.1. If USCIS is aware of such circumstances, USCIS will send a notice of the automatic revocation to the consular office having jurisdiction over the visa application, with a copy to the petitioner¡¯s last known
address. In other instances, the approval of an immigrant visa petition may be revoked upon notice (¡°revocation on notice¡±) by issuing a Notice of Intent to Revoke (NOIR) to the petitioner. See 8 CFR 205.2. The NOIR will explain the reasons the approved petition should be revoked and will give the petitioner a reasonable period of time to submit evidence to show why the petition should not be revoked. The petitioner must respond within the time allotted. An extension may be granted at the discretion of USCIS if the petitioner needs additional time to obtain documentation from abroad or for other meritorious reasons; however, the petitioner must timely respond to the NOIR by the stated deadline, and provide a reason for requesting the
extra time.
Decision on Revocation If, based on the evidence received, the USCIS officer determines that the approval should not be revoked,
the petitioner will receive a notice advising of the decision to reaffirm the petition. The petition will be returned to DOS¡¯s National Visa Center (NVC) for shipment to the appropriate consulate with the USCIS
letter of reaffirmation, a copy of the letter of intent to revoke and the petitioner¡¯s response. The NVC will then forward the petition to the consular office. The consular officer may accept the petition as valid and adjudicate the visa application to completion, or present to USCIS new evidence that was not previously considered. In the latter case, USCIS will determine whether such evidence supports revocation of the
petition.
If the petitioner does not overcome the basis for the revocation, or fails to timely respond, a decision of revocation will be issued to the petitioner on Form I-292. The petitioner may file an appeal on a decision to revoke a petition just as if the petition had been denied originally, except that the authorized period for filing the appeal is only 15 days regardless of the type of petition. See 8 CFR 205.2(d). Most courts have determined that a final decision by USCIS to revoke an immigrant visa petition is not reviewable. What the beneficiary should expect When a consular officer returns an immigrant visa petition to USCIS for reconsideration and possible revocation, he or she will typically deny the visa application on the basis of INA section 221(g) (temporary refusal of immigrant visa), pending USCIS review of the returned petition. The consular officer may also deny the visa application on another basis, if appropriate. If USCIS later reaffirms the approval of the petition, USCIS will send the petition back to DOS, at which point the consular officer will either accept the petition as valid and adjudicate the visa application to completion, or present USCIS with new evidence that was not previously considered. When a DOS consular officer denies an immigrant visa application, he or she will provide the beneficiary with a refusal letter listing the section of law under which the visa was refused.
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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.
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different point, a member here got denail /revocation/return by GUZ turned/reapprovad after 23 months (must be expired?) but was reapproved by USCIS VSC why is it better that CSC just let them die?
better for who and why ?
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.
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I have always thought that the non-transparency was essential to keep the scammers off balance. Any truth to this?
I'm the wrong person to ask about that.
At any rate, if that's the reason - I'm not sure it's working.
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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.
HKG:If a petition is returned for the non-bonafide reasons and one is not given a chance to review but only the option to refile, now add the cost of this refile from both the petitioner and beneficiary, the original petition expires not through the fault of the petitioner but the process of the system, why should the petition not be given a chance to be reaffirmed and sent back. What bothers me, is the added cost of a refile, a penalty, even though quite possible no fault of the petitioner or beneficiary.
Jeff & Qingyun:I have got to agree with HKG on this one, not only is it an added expense, that in most cases was not the fault of the petitioner and beneficiary, but what about not knowing what the reason for the denial was in the first place. I felt very confident when my fiancee went for her interview, heck, I front loaded a lot things in our petition, including many emails. In our case the VO told my fiancee that the emails we submitted were not legitimate, which is BS, but all she received is a standard form letter that says we have a non-bonafide relationship. When we go to refile, our evidence remains the same as it was the first time, including our emails, so how can I have any faith that she won't be denied a second time? They should have to disclose the reason or reasons why a denial was given. I personally think they deny some visas to accumulate cash for the consulate. Now if they allowed you to refile without having to pay the fees a second time, I don't think they would deny so many, because they would have to do twice the work for the same fees. This is why I think the Service Centers should review the denials in a reasonable time frame and either tell you why you were denied or resubmit your petition to the consulate with recommendation to award a visa. Jeff
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If a petition is returned for the non-bonafide reasons and one is not given a chance to review but only the option to refile, now add the cost of this refile from both the petitioner and beneficiary, the original petition expires not through the fault of the petitioner but the process of the system, why should the petition not be given a chance to be reaffirmed and sent back. What bothers me, is the added cost of a refile, a penalty, even though quite possible no fault of the petitioner or beneficiary.
1. How long are you willing to wait?
LINK Page 2 Sec.22. "Once a petition has expired, it may not be reviewed by USCIS. Furthermore, Petitions for Alien Fiance(e) (Form I-129 F) returned from a Consulate, Embassy, or NVC after approval may not be revoked, as there are no provisions in the law or regulation for revoking the approval of an I-129F."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..
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so what does mean to GUZ in denying petitions and returning them ?
9 FAM 41.81 N6.2 Validity of a K-1 Petition(TL:VISA-581; 09-03-2003)
An approved K-1 visa petition is valid for a period of four months from
the date of Department of Homeland Security (DHS) action and may be
revalidated by the consular officer any number of times for additional
periods of four months from the date of revalidation, provided the
officer concludes that the petitioner and the beneficiary remain legally
free to marry and continue to intend to marry each other within 90 days
after the beneficiary's admission into the United States. However, the
longer the period of time since the filing of the petition, the more the
consular officer must be concerned about the intentions of the couple,
particularly the intentions of the petitioner in the United States. If the
officer is notconvinced that the U.S. citizen petitioner continues to
intend to marry tbeneficiary, the petition should be returned to the
approving office of DHS with an explanatory memorandum. (See 9 FAM
41.81 PN7 for revalidation procedure.)
9 FAM 41.81 N6.5 Marriage Bona Fides
(CT:VISA-756; 07-27-2005)
a. If a consular officer finds that the fianc¨¦(e) or marital relationship is
not bona fide but is a sham entered into solely for immigration benefits,
post should return the K-1 or K-3 petition with a recommendation for
revocation to the national visa center (NVC) under cover of a
memorandum detailing the specific, objective facts giving rise to the
post¡¯s conclusion. b. All immigrant and K-1/K-3 visa revocation cases are to be returned to the following address:
National Visa Center
32 Rochester Avenue
Portsmouth, NH 03801
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)
9 FAM 42.43 N2.1 "Reason to Believe"U.S. Department of State Foreign Affairs Manual Volume 9 - Visas
9 FAM 42.43 Notes Page 2 of 7
(CT:VISA-872; 03-23-2007)
In general, knowledge and reason to believe must be based upon evidence that USCIS did not have available at the time of adjudication and that such evidence, if available, would have resulted in the petition being denied. This evidence often arises as a result of or during the interview of the beneficiary.Reason to believe must be more than mere conjecture or speculation¡ªtherevmust exist the probability, supported by evidence, that the alien is not entitled to status.
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.
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The good news is that the petitioner is notified that the file is officially closed
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.
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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.
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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:
"..."Since the period of validity has now expired the petition will not
be revalidated. Therefore in accordance with 8 CFR 214.2(k)(5), all
USCIS action on this petition is concluded as of this date. However,
Petitioner may choose to file another I-129F, Petition for
an Alien Fiance(e)' for the beneficiary with fee."
[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.
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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!
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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.
Tran v. Napolitano dismissed
in Ellis' Island
Posted · Edited by ellis-island (see edit history)
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.