ellis-island

where "you" refers to consular officials. Do you have any idea of what percentage of returned petitions are actually acted upon (i.e., revocation hearing), vs. how many are re-affirmed with the revocation hearing, and how many simply fall into this crack (that "the evidence of record may not be sufficient to meet the higher standard of proof required in these proceedings") with no hearing? Also, what percentage of revocation hearings which the petitioner attended actually end in a revoked petition? Keep in mind, the part of the FAM you quoted refers to post- reaffirmance cases. That is, cases that have been returned to USCIS had their approval reaffirmed & sent back to consulates, but the consulate still does not want to approve the visa petition. To answer your question, I've only been told a number by a consular officer. I'm skeptical of what I hear. I've been told 70% are ultimately revoked. I don't know where that number comes from. But the officer may have been right, or may have been pulling the number out of a hat. I don't know.There may be a table posted somewhere. I've never seen it. But you've hit the nail upon the head about the conflict between the "reasonable person" standard, and the standard for revocation. Tawfik says reasonable inferences are not enough, the evidence must be substantial and probative. Yet consulates say reasonable inferences are enough - that's the "Reasonable Person" standard. Estime & Arias specify the kind of evidence necessary to even issue an NOIR letter.. But sorry. I don't have any hard numbers about how many are reaffirmed and how many I-130's are ultimately revoked or how many expired K-1 petitions are denied post hoc. It doesn't much matter. USCIS seems to be simply taking the consular allegations a face value and allowing the petitioner to respond that's the approach I see. And that's where arguing the case law becomes important. And those aren't the only cases out there. But they're important cases. I think the better approach would be to measure the conclusions in the consulate's memorandum against Arias, Estime and the other cases I mention. If it doesn't measure up - reaffirm without an NOIR. I've seen Vermont do that -- but not lately. I've never seen CSC do it. I honestly don't recommend that a petitioner start arguing case law by himself or herself. Every case is different and ever set of facts is different. But this list gives a brief summary of some important cases petitioners need to know about. If I get time, I'll post some more. I've been researching the issue lately. Interestingly one case that popped up was the BIA case where John Lennon lost. It's not on-point, so I didn't save it or post it here. But it was a fascinating bit of history.

Hi. This applies to petitioners and beneficiaries whose petitions have been returned to USCIS. It doesn't apply to those petitions still at the consulate. I don't recommend you handle your own revocation. I don't recommend you start slinging cites from these cases at experienced USCIS adjudicators. But these are important cases. I post them NOT as legal advice - but to educate petitioners on their rights. -- I haven't have a lot of time these days. Sorry I haven't posted lately. But as a public service though. I'm going to post some cases on revocation & quotes from those cases. Most NOIR letters will cite both Estime & Ho. Estime stands for the legal standard of "good and sufficient cause", which must be met before a petition's approval can be revoked. However, a lot of people don't know that the Estime case also mentions what fails to meet that legal standard. A. “Good and Sufficient Cause”, Matter of Estime. 19 I&N Dec. 450 (BIA 1987) I've added emphasis. i. “…with respect to a decision to revoke, we ask whether the evidence of record at the time the decision was issued (including any explanation, rebuttal, or evidence submitted by the petitioner pursuant to 8 C.F.R. §§ 103.2(B)(2) or 205.2(B) (1987)) warranted such a denial. Where a notice of intention to revoke is based on an unsupported statement or an unstated presumption, or where the petitioner is unaware and has not been advised of derogatory evidence, revocation of the visa petition cannot be sustained even if the petitioner did not respond to the notice of intention to revoke.” ii. “Pursuant to section 205 of the Immigration and Nationality Act, 8 U.S.C. § 1155 (1982), a notice of intention to revoke approval of a visa petition not properly issued unless there is "good and sufficient cause" and the notice includes a specific statement not only of the facts underlying the proposed action, but also of the supporting evidence.” (Estime) Matter of Arias is a fantastic case. It's the best case of all for Petitioners fighting revocation proceedings. B. Matter of ARIAS 19 I & N Dec. 568 (1) A decision to revoke approval of a visa petition can only be grounded upon, and the petitioner is only obliged to respond to, the factual allegations specified in the notice of intention to revoke. (2). “Specific, concrete facts are meaningful, not unsupported speculation and conjecture.” (3) Observations of the consular officer that are conclusory, speculative, equivocal, or irrelevant to the bona fides of the claimed relationship between the petitioner and the beneficiary do not provide "good and sufficient cause" for the issuance of a notice of intention to revoke approval of a visa petition and cannot serve as the basis for revocation,notwithstanding the petitioner's failure to timely respond to the notice of ntention to revoke Matter of Tawfik really in its facts, was applied to subsequent petitions for the same beneficiary filed within the US. But the legal standard here very much resembles Arias. A District Director (not a consulate) denied an I-130). But the language and holding of Tawfik are important. Tawfik stands for the proposition that reasonable inferences from the record do not constitute "good and sufficient cause" for petition revocation. C. Matter of Tawfik 20 I&N Dec. 166 (BIA 1990) (Reasonable inferences do not constitute “good and sufficient cause) “where the district director concluded that there was evidence in the record from which it could "reasonably be inferred" that a marriage had been entered into for the primary purpose of obtaining immigration benefits, the substantial and probative evidence, requisite to the revocation of a subsequently approved visa petition was not presented.” Matter of Ho is cited in all NOIR letters. It stands for the proposition that the burden of proof in revocation proceedings is NOT on the consulate or USCIS -- it is on petitioner. That means not only must you rebut or give reasonable explanations to the allegations in the consular memorandum (quoted in the NOIR), you must also prove your relationship all over again. D. Matter of HO, Vol. 19: Int. Dec. 2951-3100/#3051 (p. 582) (Ho) The petitioner bears the burden in visa petition revocation proceedings of establishing that the beneficiary qualifies for the benefit sought under the immigration laws.Matter of Cheung, 12 I&N Dec. 715 (BIA 1968), reaffirmed. ---- This next cite is in the FAM. Almost all NOIR letters arise out of #3. So the question is: (1) Is the evidence developed by the consular officer "factual"? Or did the officer get the facts wrong? (2). Is the evidence developed by the consular officer "extensive"? Or is it outweighed by evidence proving the relationship? (3). And even assuming the evidence is factual & extensive, is a sham marriage the most reasonable conclusion one can reach from that factual and extensive evidence developed by the consulate? That is generally the battlefield. E. USCIS Minimum Standards for Instituting Revocation Proceedings on an Approved Petition (1) A written statement from one or both of the parties to the marriage that the marriage was entered into primarily for immigration purposes; (2) Documentary evidence that money changed hands under circumstances such that a reasonable person would conclude the marriage was a paid arrangement for immigration purposes; or (3) Extensive factual evidence developed by the consular officer that would convince a reasonable person that the marriage was a sham marriage entered into to evade immigration laws. (Restated at 9 FAM 42.43 N 2.2) F. 8 C.F.R. §§ 103.2(B) et seq., (A Petitioner’s Right to Inspect the Record) There are two types of revocation: Automatic revocation and: G. 8 CFR 205.2 (Revocation on Notice). Notice of Intent to Revoke letters obviously follow the revocation on notice procedures.

---- Secretary Clinton is a smart lawyer. She was also a Senator whose staff received a lot of complaints from aggrieved US Citizen petitioners about consulates. I hope those experiences will have a positive effect on how consulates process visa applications under her tenure. I have no idea what the press would be interested in. A colleague of mine suggests bringing bad cases to the attention of the local media where the consulate is located. He's had success doing that. I don't do that. At least I haven't seen a situation that merits it yet. -- Class actions have to involve similarly situated plaintiffs who are too numerous to join. That means the issues of law and facts must be common to all of them. That's certainly true of K-1 petitioners whose petitions have expired, been returned by consulates and who have been waiting years for review by USCIS. Class actions are difficult. But they have the advantage of being cheaper for the individual plaintiff. Most plaintiffs cannot afford to pay for extensive litigation in Federal District Courts. In a class, they can often pay a little or even get a free ride sometimes. Toshiba, Sun Microsystems, Microsoft, Google can afford to sue and appeal. Most family petitioners cannot. And consular section chiefs are well aware of that too. Class actions have another advantage. They can be filed in a favorable judicial circuit, if that circuit has class-members as plaintiffs. So plaintiffs from Atlanta or Dallas, can actually have a Federal District Judge in California hear their cases. I have a lot of respect for USCIS adudicators and for the Service. I have many fond memories of practicing before USCIS at District offices all over the US. (I even have a few fond memories of practicing before immigration judges in deportation & asylum proceedings-but not nearly as many). With USCIS or Immigration Court (EOIR), you always know you were up against people who were well-trained in the law and who were accountable for their decisions. They are immigration law professionals. They will likely work their entire careers in the field of immigration law, unlike consular officers who often view the visa lines as a career stepping stone into an area that interests them more. I'd hate to see it come to mass litigation. But I'm just a lawyer. And I think that is what will have to happen to solve the problem of so many meritorious petitions being returned by so many consulates. It might even result in the "good and sufficient cause" standard of USCIS becoming the standard DOS uses for returning petitions. That would make sense, wouldn't it, two agencies working off the same page? In fact, reading Colin Powell's cable above, he implied that it was pointless to return a petition that would not be revoked. I agree. Ironically, I'm arguing against my own financial interest. My clients come to me after their visas are denied. If the denials stopped - I may have to look for a new line of work. But it's the right thing to do. Other lawyers who practice in this area are doing exactly the same thing, even if it results in lower incomes.

I had a client (not from Vietnam or Guangzhou) receive an NOIR recently for a CR-1. We had sent in a rebuttal early. We were pretty surprised when CSC sent back an NOIR letter about a month later. Definitely -- fast-tracked because of our submission. But a word to the wise - don't try it at home. In this particular case, the consulate had some pretty strong evidence. And USCIS adjudicators are extremely well-trained and knowledgeable about immigration law. They are immigration law professionals. Revocations & Removal (deportations) are the big leagues of immigration law. I haven't lost one of these yet. But this one will be tough. The good news is -- CSC fast-tracked it after we submitted our rebuttal. The bad news is -- the adjudicator is tough* and the consulate has an arguable case against the beneficiary. *CSC BTW, has some very knowledgeable and tough adjudicators. I may be overstating the strength of the government's case a little. We'll see. I love this job!

Maybe I'm missing something. All I see is an email saying the consulate sent us your case. Don't call us - we'll call you. NOIR/NOID letters come with specific heavy paper-stock cover sheets, like RFE's. NOIR's are blue. The date posted in large fonts is the date by which petitioner must respond. The time period represents 30 days + 3 if the letter was sent by mail. Normally, that equals less than 30 days by which you have to respond. BTW, the processing times for K-1 review are NOT listed at the USCIS website. And they are NOT listed in the USCIS processing goals site. Finally - a few words to the wise - NEVER ignore anything sent to you by USCIS about a petition that has been returned by a consulate, unless the correspondence tells you to ignore it. NEVER WITHDRAW a petition that has been returned by a consulate because the consulate thought the relationship was a sham. Why? First off, the consulate places a p6c marker in the Beneficiary's data base. That is a fraud/misrepresentation finding. (see below) USCIS 8 CFR 205 states that withdrawing a petition is a form of revocation. It is auto-revocation. So what happens when a petition returned by a consulate on the merits is revoked? ---- 9 FAM 40.63 N10 MISCELLANEOUS 9 FAM 40.63 N10.1 Misrepresentation in Family Relationship Petitions (CT:VISA-1030; 09-22-2008) 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 materials 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. -- What happens is your beneficiary is likely to have a 212(a)(6)©(i) misrepresentation finding of inadmissibility waiting for her at her next interview. General rules with petitions that have been returned by consulates. 1. Withdraw nothing. 2. Respond to everything. (Unless the notice tells you not to respond).

I try not to speak in universals. Some conoffs are very good. Some section chiefs are very good. And I'd be surprised if they intentionally ignored Hillary Clinton. I think it's more a case of the FAM being confusing and badly organized. And specifically - they're not trained in immigration law by people who actually know the law -DHS. I personally don't think the rules are flouted at consulates. To flout a rule would require knowledge and understanding of the rule. I think it's a question of deficient training. Rookie officers are trained for about 6 weeks then they go out and they they wield unbelievable power over the lives of US Citizen petitioners. The training in immigration law nuts and bolts is deficient. That's a universal I will state And I stand by that. They should be trained in "good and sufficient cause". They should be trained in 8 CFR. And they're not. Not only that --- DHS is the agency that should be training them. They have the authority under the law. And they're not doing it. I stand by that too. I've seen over the years, an institutional bias against family visas. There is prestige in deciding a visa case for Sun Microsystems or Toshiba. Where is the prestige in deciding a case involving a low-middle-class divorced US Citizen Petitioner sponsoring a foreign spouse? Who cares if they get it wrong? The Petitioner doesn't have the clout of a big corporation. Nobody will breathing down the officer's neck if he or she gets a family case wrong. This same bias exists among immigration lawyers. For years, the prestige lawyers were the ones handling employment and business visas. Now that the world economy has tanked, a few of employment lawyers are emailing me and trying to learn about NOIR letters and consular refusals. They're clueless. An ex-conoff has remarked about this bias as well. Family visas are not viewed as important. And US Citizen Petitioners in particular who sponsor foreign spouses are often viewed with disdain by some officers & chiefs not the majority. I actually met the BCA's Chief of the Visa Section at a meeting about six weeks ago in Saigon. He did not know the validity period of a K-1 visa. I know. I asked him. That is how deficient the training is. If the top management doesn't know, how can you expect the line officers to know? If managers think 8 CFR or the Board of Immigration Appeals don't have any application over what they do. What can you expect? DHS has really dropped the ball here. It won't get better until conoffs and Chiefs receive better training. And that won't happen until DHS decides its wasting too much time reviewing petitions that should have never been returned in the first place. Colin Powell really got it right in his cable. But note - he was responding to complaints from INS that too many meritorious cases were being returned. Read his cable. That needs to happen again. It will once DHS gets tired of getting sued. in Federal District Courts over backlogs.

Most consulates don't. Most consular refusal sheets look like Guangzhou's. That's why I interview Petitioner and Beneficiary. If a case is going to be denied, I'll aleady know why from my interview notes. I've done hundreds of these all over the world. Ho Chi Minh City to its credit, gives a list of reasons. That practice started under the last Chief and it has continued through this one. The subject came up during a meeting I had with him on a case a few years ago. He thought it was the right thing to do and he did it. But as you know, consulates are trying to become "lawyer-free zones". Neither HCMC nor Guangzhou meet with lawyers today. It could save them a lot of headaches if they did. There is a line from a movie I remember, "Night of the Generals", Peter O'Toole is a Nazi General in a Parisian bar. A sexy bar girl, (played indelibly by Veronique Vendell), approaches him with her "come on line".) Veronique "You look so sad. Have you suffered?" O'Toole (replies with only a cold stare.) Veronique (walking away), "Apparently, you have not suffered enough, -- Apparently, consulates have not suffered enough. -- HCMC takes the extra step of putting a warning about what happens in the event a petition is revoked -the P6c marker that is in a Beneficiary's file becomes a hard 212(a)(6)(c ) inadmissibility finding requiring a 212(i) waiver. I practice law all over the world. Most consulates don't list the reasons. Most consular refusal sheets look like GUZ's. HCMC is the rare exception. Not listing the reasons on the DS-194 demonstrate either capricious disregard for the reasonable expectations of the US Citizen Petitioner, or else bureaucratic inertia. At any rate, it can be easily fixed. Just list the reasons! It was suggested in Colin Powell's cable. But I've never seen specific notice to the applicant incorporated into the FAM. That may reflect the institutional bias I mentioned earlier. Some officers & managers around the world, for various reasons, have a disdain for US Citizens who sponsor foreign spouses. It's an institutional bias. Consular Section Chiefs would be wise to note how much anger and resentment the practice of not informing them why their loved one's visa was refused, causes in the minds of US Citizens and in workload of Congressional liaison staff. They should consider how unfair it appears on the surface. It's bad exposure. And it's not necessary. Just the list the reasons on the DS-194 - that's all. It's the right thing to do. And Citizens deserve better explanations than they are given in most consulates. It's the right thing to do and Section Chiefs have the authority to start doing it.

Randy W: Hi. If I assume it is true - that consulates always have evidence that USCIS did not have available at the time of approval -- the analysis does not end. There is a second part to it. I've numbered it for emphasis. 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 1. evidence that USCIS did not have available at the time of adjudication and (2). 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¡ªthere must exist the probability, supported by evidence, that the alien is not entitled to status. So it is a 2 part analysis. The second part asks: Does the evidence USCIS did not know about - that the consulate did know about - rise to the level that it would have resulted in the petition being denied? BTW, I don't think consulates always have adverse information not available to USCIS. It's certainly not true in my cases. That's why I front-load petitions. It happens sometimes - but rarely. I generally know how a case will go down before the Beneficiary enters the consulate. And I generally know the reasons that will be used - if it is going to be denied. And those reasons will have already been disclosed to USCIS - if I had filed the petition. But most of my clients are not cases where I filed the petitions. Most of my clients retain me after they've already been denied. I agree, there is sometimes post hoc reasoning done to justify denying visa applications at consulates. A predisposition sometimes exists to deny some cases. Some officers then just search for a reason after deciding to deny it. But no -- if they follow the guideline -- and following it is not discretionary, even though it seems to be applied that way -- if they follow the guideline, the evidence must be extensive...USCIS must not have had it at the time of petition approval and it must be the type of evidence that would have resulted in the petition being denied had USCIS known about it. Interesting question. The FAM section I quoted gives you the USCIS standards for revoking a petition found in 8 CFR 205. The part that causes most of the controversy is in part 3. Yes. The standards are different between DOS refusing a visa and USCIS revoking a petition. But if that's the case, what's the point of sending it back for revocation, if the consulate knows it cannot possibly win a contested revocation proceeding? Why are so many obviously good cases returned? It's a question that has baffled me for years. *When Colin Powell was Secretary of State, he cautioned consulates: He also wrote: It still baffles me today. The answer is not to be found in any published rules. Maybe it's defective training. Maybe it's institutional bias. I don't know. I'm just a lawyer - not an expert in institutional psychology. *R 130616Z JUL 01 FM SECSTATE WASHDC TO ALL DIPLOMATIC AND CONSULAR POSTS SPECIAL EMBASSY PROGRAM UNCLAS STATE 121801 E.O. 12958: N/A TAGS: CVIS, CMGT, KFRD SUBJECT: GUIDANCE ON PETITION REVOCATIONS REF: AIRGRAM M-240 Randy W: Consulates may not see themselves as parties to the NOID. But since it is the consulate's memorandum & the Chief's signature that are used to justify the denial --- the Chief's reputation as well as the consulate's is on the line...or should be. Unfortunately, there seems to be no penalty for wrongly sending back a petition and putting a US Citizen Petition through years of mental Hell. There may be penalties for wrongly approving visas post-9/11. But there seems to be no penalty for wrongly recommending a petition's approval be revoked. There should be.

Back to our lovebirds. One in America and one in China at the visa interview. Evidence con: (a) absence of photos (b) lack of a common language (c ) B didn't know he lived in a suburb and (d) B did not know the name of his immediate supervisor. (e) P was still married when they met online and (f) the marriage proposal was made before they ever met in person. Evidence Pro: (a) 4 trips and 4 months spent together in 3 years. (b) Plane, train & boat tickets showing travels together. (c ) registration with local authorities on each stay, (d) Hotel receipts with both their names and ID's photocopied, (e) hundreds of pages of emails and internet chats.(f) Members of P's family came to attend the engagement or wedding ceremony. How should an officer apply the "reasonable person" standard? Well, maybe a reasonable officer would look to the next section of 9 FAM 42.43 after note 2.1. It's Note 2.2. And it says: 9 FAM 42.43 N2.2 Cases of Sham Marriages (CT:VISA-872; 03-23-2007) USCIS has minimum evidentiary standards that must be established beforerevocation proceedings in a case based upon a marital relationship may begin. These minimum evidentiary standards are: (1) A written statement from one or both of the parties to the marriage that the marriage was entered into primarily for immigration purposes; (2) Documentary evidence that money changed hands under circumstances such that a reasonable person would conclude the marriage was a paid arrangement for immigration purposes; or (3) Extensive factual evidence developed by the consular officer that would convince a reasonable person that the marriage was a sham marriage entered into to evade immigration laws. In my example, neither #1 nor #2 are present. That leaves #3. Is the evidence against our lovebird's case extensive? Here is where a reasonable person would weigh the evidence for & against. Here is how I would weigh it if I were the officer. 1. The absence of photographs is irrelevant, when viewed in light of the disinterested 3rd party evidence of registration with the local authorities for four months in four years and hotel receipts photocopied with their names & ID's (or at least their ID numbers written on it). 2. The fact that Beneficiary knew Petitioner lived in the Chicago area is enough. The fact that Beneficiary did not know he lived in a suburb of Chicago does not make me think the relationship is a sham. 3. The lack of a common language is less of a problem with software today. Also, her not knowing the name of his immediate supervisor doesn't seem very important to me. 4. I'd wonder about the previous marriage. "Where's the ex?" is a game you always play with consulates. Can Petitioner document he was separated at the time of the on-line meeting? Were they still sharing bank accounts, cell phone accounts, credit cards, or even the same home address? I'd want Petitioner to document the facts of his separation--and if I had filed the petition -- he would have. Because "where's the ex" is a question I always answer before it's asked at a consulate. Assuming that's documented well, we go to. 5. Plain and boat tickets with both their names, Petitioner's family members from the US came to the ceremony? How could a case like this possibly get denied? It was. This is a fact situation taken from an actual case. And there are cases like it denied all over the world, every day. But y'all know that already. ----- #3 *Note: In my experience, I've always gotten along better with women who do not speak my language. Couples make more of an effort to communicate when they don't know each other's language.

I've always been in favor of DOS returning visa fees if the visa isn't granted, especially in 214(b) NIV cases. Sorry your case was refused. --- I had a civic-minded public servant, whose opinions I respect, email me to tell me that my reading of Sec. 402 & 428 of the Homeland Security Act may be a bit sweeping. Maybe. But I'll only say - the power of DHS to train consular staffs in immigration law is both implied in 402 and explicit in 428(b). But the argument is rather academic, because DHS ain't doing it. Also, I had a knowledgeable public servant write to me about the reviewability of K-1 petitions. I slam dunked that one. 8 CFR 214.2(k) "(5) Validity. The approval of a petition under this paragraph shall be valid for a period of four months. A petition which has expired due to the passage of time may be revalidated by a director or a consular officer for a period of four months from the date of revalidation upon a finding that the petitioner and K¨C1 beneficiary are free to marry and intend to marry each other within 90 days of the beneficiary's entry into the United States. The approval of any petition is automatically terminated when the petitioner dies or files a written withdrawal of the petition before the beneficiary arrives in the United States." Thus, refusing a dead K-1 petition and sending it back for review does not revalidate it. Revalidation can ONLY occur upon a finding that the relationship is valid. And that is just the opposite of what the K-1 refusniks are facing. A K-1 petition cannot be revalidated for the purpose of USCIS review, revocation, or any other reason. The officer has to find the relationship is real in order to revalidate the petition. Case closed. I'm right. So why are USCIS and DOS going through the motions? The Acting Director said expired K-1's cannot be reviewed or revoked. Stay tuned...BTW, some consular officers think 8 CFR does not apply to them --- they are wrong. 8 CFR contains the implementing regulations of the Immigration and Nationality Act. Finally, I noticed there was a debate elsewhere in the forum about front-loading petitions with details of your case that may cause problems at consulates down the road. I advocate it. Why? 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¡ªthere must exist the probability, supported by evidence, that the alien is not entitled to status. ---- I admit, it's counter-intuitive for lawyers to advise clients to volunteer information. And usually, we don't advise that. But read that section of the FAM. To justify returning an spouse or K-1 petition, a consular section chief must comply with the "Reason to Believe" section of the FAM. That's the theory anyway. What is "reason to believe"? Well, it's (1) Evidence that USCIS did not have available at the time of adjudication. Not only that, (2) it's evidence that would have led to the petition being denied, had USCIS known about it. So that's why I advocate front-loading. 9 FAM 42.43 n 2.1, makes it plain, if USCIS knew about it at the time of approval - and approved it anyway, a consulate should not use that information as grounds to deny a visa. That BTW, is why you don't see age differences used anymore on refusal sheets. USCIS knew about the age difference at the time of approval. But I have recently seen a consular finding from GUZ that used information available to USCIS at the time of approval as a ground for sending a petition back. Three things went wrong. (1) The interviewing officer wrote it. (2) The Chief signed off on it and (3) Worst of all, the USCIS adjudicator mentioned it in the NOIR letter. I expect 1 & 2. #3 is disappointing. I have a lot of respect for USCIS adjudicators. Why did the USCIS adjudicator mention that in the NOIR letter? I don't know. I think the backlog of returned visa petitions has gotten so deep, that some adjudicators in Service Centers now are just repeating consular allegations without analyzing whether they are legally sufficient or not. My dream job would be to sit at a USCIS Service Center and do nothing but review petitions returned by consulates. Oh I would have fun! ---

Hi. The C4L people invited me to host a forum. So feel free to ask questions. I may not be able to answer all of them. But I hope I can give you a better understanding of the process, at least the way I see it. And no doubt I'll learn some things along the way too. Anyone is welcome to contribute - including DOS people anonymously, of course. I hope one or two will show up. I'll invite a couple of immigration lawyers too. Here is what you need to know: Conoffs are bound by a "reasonable person" standard in visa refusals. A good lay description of that standard can be found here. "Reasonable Person". Here is what the FAM says: 9 FAM 42.43 (emphasis added) 9 FAM 42.43 N2 WHEN TO RETURN PETITIONS (CT:VISA-872; 03-23-2007) You will suspend action and return the petition to USCIS (see 9 FAM 42.43N3) through NVC if: (1) The petitioner requests suspension of action; (2) You know, or have reason to believe the petition approval was obtained by fraud, misrepresentation, or other unlawful means; or (3) You know or have reason to believe that, despite the absence of fraud, due to changed circumstances or clear error in approving the petition the beneficiary is not entitled to the approved status. ____ Most of the discussion of marriage & fiance' visa refusals in forums like this involve #2. During the grueling interviews visa applicants go through, the officer is searching for a "reason to believe" that the petition approval was obtained fraudulently or reason to believe that the relationship is bona fide. At this point, I see a problem. Logically, "Reason to believe" is not the same thing as the "reasonable person" standard. Logically, it is a much thinner thread to hang a visa decision on. In law school, first year students are taught that the "reasonable person" standard is roughly correlates to the preponderance of the evidence standard. "Does the peponderance of the evidence lean one way or another. In other words, is it 50% +1 up or down? But "reason to believe" is quite different from that. It is much narrower. People can have reason to believe things that that are quite unreasonable and even ridiculous. For instance, some people claim there is reason to believe that space aliens built the pyramids. Yet, a reasonable person viewing all the evidence, would conclude otherwise. He or she would conclude that Egyptians, not extra-terrestrials built them. Yes. Maybe we cannot explain how they cut and toted the large rocks around. Yes. Maybe we cannot account for this or that. But viewing the evidence we have, it is unreasonable to believe that creatures from outer space built these things. So logically, there can be a "reason to believe" something that a "reasonable person" would never believe. Back to the visa interview. The officer notices that the couple did not take many photos together, even though the couple spent months in each other's company. The officer now has a a reason to believe the relationship is not bona fide. Is that enough to deny the visa and send the petition back? I think even the most aggressive officer would say "no". Why? Because of the "reasonable person" standard. 9 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¡ªthere must exist the probability, supported by evidence, that the alien is not entitled to status. So DOS has morphed the "reason to believe" idea, into the "reasonable person" standard. I think it's confusing. I think it's badly written. And I think good cases are being denied because of this confusion. But I'm just a lawyer. I didn't write the FAM. Even if we consider them the same thing, the "reasonable person" standard is right there in front of our noses. ""Reason to believe must be more than conjecture or speculation - there must exist the probability, supported by evidence, that the alien is not entitled to status. " "...a probability, supported by evidence", sounds like a preponderance of the evidence to me. Back to the photographs. The absence of photographs is evidence of a that the relationship may be a sham. But it is not a preponderance of evidence. It does not create a probability that your beneficiary is not entitled to the visa. There must be more. Let's add a couple of more things. (a) The couple does not speak the same language, (b) B had his or her emails translated into English by a friend and © she did not know the name of his immediate supervisor at work and (d) she said he lived in Chicago when he really lived in Cicero. Not only that, (e) Petitioner was still married when he met B on line and (f) the marriage proposal was made by phone or internet before they ever met in person? Now the officer has a lot of different things to look at. Does he or she have time to look at them? Probably not. Evidence Con: (a) absence of photos (b) lack of a common language © B didn't know he lived in a suburb and (d) B did not know the name of his immediate supervisor. (e) P was still married when they met online and (f) the marriage proposal was made before they ever met in person. Evidence Pro: (a) 4 trips and 4 months spent together in 3 years. (b) Plane, train & boat tickets showing travels together. © registration with local authorities on each stay, (d) Hotel receipts with both their names and ID's photocopied, (e) hundreds of pages of emails and internet chats.(f) Members of P's family came to attend the engagement or wedding ceremony. What would a reasonable person decide?

He was saying that VSC has been reviewing these cases, while CSC seems to be letting them sit and collect dust. petitions are returned to the service center that originaly processed them, sorry you dont get a choice. I have cases in both service centers. VSC throughout all this, has been reviewing expired K-1's. So its policy (I think is incorrect), but it has been consistent. Here is a rough time-frame. 2007 July 30, 2007 Lincoln & Texas Service Centers stop processing K-1's. All K-1's are filed with CSC and VSC. Previously all four service centers processed K-1's. CSC had not been reviewing expired K-1's. I have 2007 email from CSC Congressional unit advising clients that their petition would not be reviewed - they would be free to file again. CSC also had been sending petitioners 797 notices informing petitioners (a) their petitions had been returned, (b) had expired and (c ) that they could file again. So after the July 30th, 2007 change, only 2 service centers were processing K-1's. One of them reviewed expired K-1's. One of them did not. I saw a problem at that point and wrote an article about it for ILW.COM. Nobody seemed to notice it though. 2008 1. May 23, 2008: Acting Director USCIS Jonathan Scharfen essentially agreed with CSC policy. He wrote: "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." Response to USCIS Ombudsman Recommendation 33. 2. But VSC kept reviewing & sending NOID letters to petitioners, even after the Scharfen memorandum. CSC kept its former policy of not reviewing or revoking expired K-1's. 3. Now the consulates enter the picture. Consulates, one-by-one apparently, began refusing to approve visa applications based on re-filed K-1's. If a consulate had refused a K-1 before and sent it back, it would not approve a subsequently filed one until it learned the results of CSC or VSC's review. I noticed it first in HCMC. Then I saw it in Guz and elsewhere. 2009 I have emails from CSC reversing its policy: (1) Expired K-1 petitions will now be reviewed and (2) the backlog currently goes back more than five years. The May 23, 2008 memorandum is still good policy. It has not been rescinded. There have been no public announcements to my knowledge of this change in policy. And the May 23, 2008 memorandum is still a good statement of law and logic. A petition must be valid to be revoked or denied. An expired petition cannot be reviewed, revoked or denied. But that's what's happening. And that's where we are. And that's how we got there. Please feel free to inform your congressional reps. K-1 processing right now is a mess. Give them this summary I've written for you. The problem of course is consulates world-wide are sending back too many petitions that should be approved. DHS* has dropped the ball in administering the visa process. The 2 service centers, (remember previously there were 4 service centers processing K-1's), are overwhelmed by the sheer number of consular returns. CSC, because of its policy turnaround is the most back-logged of all right now. Remedies: 1. Expedited review of expired K-1's at Service Centers OR 2. A ruling by DHS/USCIS that that expired K-1's can't be reviewed or revoked. 3. DHS begins to better administer the visa process, train consular employees in immigration law. Training them in the "good and sufficient cause" standard for petition revocation would be a good place to start. *Remember DHS - not DOS is charged with administering the visa process. Sections 402 & 428 of the Homeland Security Act of 2002.

Hi. I'm not frustrated with GUZ. I expect it to operate exactly the way it is operating. After all, it's the State Department. I'm a little perturbed that DHS is not fulfilling its statutory role of training consular officers in immigration law and supervising the immigration process at consulates. And I'm baffled that DHS has so thoroughly botched the question of review & revocation of K-1's. But I always expect DOS to be DOS. It's been a model of dysfunctional Federal bureaucracies for decades, if not centuries. Presidents and political parties come and go. But DOS remains as unchanged as Gibraltar. The good news is - DHS can come in and shake things up at consulates. The bad news is - It hasn't done it. And I don't think DHS even knows it has that authority to do it under Sec. 402 & 428 of the Homeland Security Act. -- Concerning whome's post, there would be documentary evidence of the 8 months petitioner lived in China. And that could be presented at the interview with phone bills, etc. I was talking about post-refusal cases, post return to USCIS. So whome's scenario is not as bad of a case as someone whose case has been returned, sitting around waiting for an NOIR letter and then upon receiving it, discovering he has nothing translated for USCIS. If your case is sent back - start working on translations. And continue to work on them as the chats, letters, etc., accrue. It's important.

Once a case has been definitely returned from GUZ to the Service Center, P really needs to get to work on translations - if there are any. If you're chatting in yahoo in Mandarin, you could have hundreds, thousands of pages of chat. How are you going to translate all that in a week or two? You'll need to pick & choose. Choose one or two chats a week, translate them. Ditto for emails. I'd translate all post-marked letters. But the worst case scenario is for P to have an NOIR letter arrive, giving him 30 days to respond and he has thousands of documents yet to translate. In revocations - it is not merely enough to prove the consulate is incorrect in its conclusions. You have to prove your relationship is bona fide all over again. A USCIS adjudicator could conclude that the consulate has the facts wrong and yet still revoke your petition, because you have not proven your case. For instance, in a case where the consulate alleges in its memorandum that a beneficiary is actually carrying on a marital relationship with her ex-husband. Petitioner is conclusively able to prove the ex-husband has remarried and had a child with his new spouse and is living 2000 miles away from the beneficiary. OK. Point for Petitioner. But if Petitioner has not returned in 3 years. If he has not written a letter or sent an email in 3 years. If he produces scant evidence of telephone contact. Or even worse, if he has all that evidence of email and postal contact, but has not had it translated, USCIS won't consider it when he submits it. Even though a petitioner has successfully overcome the consulate's concerns, he could fail to prove his case. And the petition's approval is likely to be revoked. It's not enough to submit an affidavit stating your marriage is real. Once your case is returned, start arranging for translating chats, emails and letters. Don't wait around for an NOIR letter. This is especially urgent if Service Centers are speeding up the revocation process. I can't say they are. But I've seen at least one case that moved comparatively fast.

This is merely a warning that CSC may have speeded up the sending out of NOIR letters for CR-1/ IR-1's. That means petitioners have to have their cases ready. Having a case ready means translations - especially of emails, chats, letters, etc must be already be prepared. USCIS does not accept untranslated Mandarin documents. And translations must be accompanied by a certificate. It also means all copying must be done (2 copies minimum), one to hold back and one to send to USCIS. Finally, it means the rebuttal argument must be nearly finalized. In GUZ and some other consulates, it's more difficult because the consulate plays "hide-the-ball". In HCMC the reasons and relevant FAM sections are set out in the DS-194. But I've done at least a thousand interviews from consulates around the world. Probably a lot more. It's rare when I can't figure out what the consulate is looking at in a case.

Hi. Someone came to me today with an NOIR letter from CSC. It had sat 20 months. That is fast in my experience. Some observations, the Service Center adjudicator seemed to take the consular officer's observations at face value, even the silly ones. So maybe this case is an anomaly. Or maybe CSC is speeding up on CR-1/IR-1's. From what I can see, K-1's are still a black hole. If it is speeding up, it may be because some USCIS adjudicators may merely be accepting the consulate's conclusions as "legally sufficient" and sending out an NOIR letter, no matter how legally insufficient, or even downright silly, the consulate's conclusions may have been.

I've highlighted some important parts. At the consular level, the misunderstanding, or abuse if you prefer, comes when officers try to apply the "reason to believe", and "reasonable person" standard. They're not really trained in it. DHS - not DOS is in charge of administering the visa process ever since the Homeland Security Act of 2002. (See Sections 402 and 428). But neither DHS nor DOS seem to be aware of it. That's the clash of the bureaucracies. DOS has lost turf. But DHS has not stepped into establish a procedure to train consular officers and administer the visa process. I doubt it will happen absent some horrendous publicity. DOS seems to respond to bad publicity. It has happened in a few court cases already though. A Federal District Court Judge orders DHS to order a consulate to adjudicate a case using the proper standard of law. Consular non-reviewability is still there. But DHS can demand what legal standards are used in adjudications. What does the "reasonable person" standard mean? What is "extensive evidence"? --\-- U.S. Department of State Foreign Affairs Manual Volume 9 - Visas 9 FAM 42.43 Notes Page 1 of 7 9 FAM 42.43 NOTES (CT:VISA-968; 06-11-2008) 9 FAM 42.43 N1 SUSPENDING ACTION IN PETITION CASES (CT:VISA-872; 03-23-2007) a. The Department of Homeland Security (DHS) possesses exclusive authority over the approval and denial of immigrant visa petitions (exceptfor those filed for aliens classifiable under INA 203© or 101(a)(27)(D)). You should bear in mind that the Department considers the approval of a visa petition prima facie evidence of the relationship between the petitioner and the beneficiary. b. Therefore, it is your responsibility to review, not to readjudicate petitions. However, in the course of that review, if you obtain sufficient facts so that you know or have reason to believe that the beneficiary is not entitled to the status approved in the petition you will return the petition to the U.S. Citizenship & Immigration Services (USCIS) through the National Visa Center (NVC). 9 FAM 42.43 N2 WHEN TO RETURN PETITIONS (CT:VISA-872; 03-23-2007) You will suspend action and return the petition to USCIS (see 9 FAM 42.43 N3) through NVC if: (1) The petitioner requests suspension of action; (2) You know, or have reason to believe the petition approval was obtained by fraud, misrepresentation, or other unlawful means; or (3) You know or have reason to believe that, despite the absence of fraud, due to changed circumstances or clear error in approving the petition the beneficiary is not entitled to the approved status. 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¡ªthere must exist the probability, supported by evidence, that the alien is not entitled to status. 9 FAM 42.43 N2.2 Cases of Sham Marriages (CT:VISA-872; 03-23-2007) USCIS has minimum evidentiary standards that must be established before revocation proceedings in a case based upon a marital relationship may begin. These minimum evidentiary standards are: (1) A written statement from one or both of the parties to the marriage that the marriage was entered into primarily for immigration purposes; (2) Documentary evidence that money changed hands under circumstances such that a reasonable person would conclude the marriage was a paid arrangement for immigration purposes; or (3) Extensive factual evidence developed by the consular officer that would convince a reasonable person that the marriage was a sham marriage entered into to evade immigration laws. 9 FAM 42.43 N3 RETURNING PETITIONS (CT:VISA-968; 06-11-2008) When action is suspended you will: (1) Prepare a memorandum which constitutes a comprehensive report to USCIS explaining in detail the reasons why the beneficiary appears not to be entitled to status (see 9 FAM 42.43 PN1); (2) Send the petition along with Form DS-3096, IV Petition Revocation Request Cover Sheet-National Visa Center, directly to: National Visa Center 32 Rochester Ave. Portsmouth, NH 03801 Attn: Fraud Prevention Manager (3) If fraud is suspected, send a copy of the memorandum to the U.S. Department of State Foreign Affairs Manual Volume 9 - Visas 9 FAM 42.43 Notes Page 3 of 7 Department (CA/FPP); and (4) Retain a copy of the petition, the supporting documents and the memorandum. All immigrant visa petitions being returned for revocation must contain the original petition along with the revocation request. If the original petition has been lost or misplaced, please indicate this in your revocation request memorandum. (5) It is mandatory to scan all revocation requests into the Consular Consolidated Database (CCD), along with at least a minimal amount of supporting documentation. 9 FAM 42.43 N4 REAFFIRMATION OF VISA PETITIONS (CT:VISA-872; 03-23-2007) If USCIS reaffirms a petition which has been returned, and you have no additional factual evidence to submit to support the belief that an alien is not entitled to status, except in the rare cases discussed in 9 FAM 42.43 N4.1 below, you will process the case to conclusion. 9 FAM 42.43 N4.1 When Consul Disagrees with Reaffirmation But Has No Evidence (CT:VISA-872; 03-23-2007) a. In the rare case where you may irreconcilably disagree with the USCIS decision to uphold the validity of the petition, if you have no new evidence to present which was not previously considered by USCIS, you will send the entire case to the Department (CA/VO/L/A) for review and discussion with USCIS/HQ. Such referrals should be rare, however, since the burden of proof still rests with USCIS and protracted delay without sufficient reason is unfair to the visa applicant. b. It should be remembered that USCIS bears a high burden of proof (good and sufficient cause) in revocation proceedings. Although you may believe that the evidence leads a reasonable person to believe that the alien is not entitled to status, the evidence of record may not be sufficient to meet the higher standard of proof required in these proceedings. 9 FAM 42.43 N4.2 Consul Disagrees with Reaffirmation and Has New Evidence to Present (CT:VISA-872; 03-23-2007) U.S. Department of State Foreign Affairs Manual Volume 9 - Visas 9 FAM 42.43 Notes Page 4 of 7 Despite the fact that USCIS reaffirms the petition, if you discover substantial new evidence not considered by USCIS in its decision to reaffirm, you may return the petition to USCIS through NVC without referring the case to the Department (CA/VO/L/A).

Hi. This only pertains to persons whose K-1 petitions were returned by Guangzhou to California Service Center and who have waited more than 6 months for it to be reviewed. It makes me kind of sad to have to do this, because I am a fan of USCIS. I practiced before district offices and have enrolled in service centers all over the United States. I still have a soft place in my heart for the lovely people at the New Orleans District Office. They taught me everything I know. I have great respect for the professionalism and training USCIS officers receive. But I think it's necessary to seek an extraordinary remedy now with California Service Center. I think it is time to file requests for expedited reviews of expired K-1 petitions that have been returned by consulates. The delays at CSC have become intolerable. I don't hold the Service Center at fault. The problem is that consulates send back too many meritorious cases. They often do not adjudicate visa applications under the correct "reasonable person" standard. And that is partly because DHS has not trained them in what the "reasonable person" standard is. (Yes - DHS - not DOS is responsible for administering the visa process and for training consular officers in immigration law. See Sections 402 & 428 of the Homeland Security Act of 2002). So if your K-1 has been refused by a consulate and you have beeen waiting for it to be reviewed by California Service Center, for more than six months, you may want to contact me. marcellislaw@gmail.com . I can't say too much more. But I think expedited review based on two groundsrecognized by the Service, (A) USCIS Error and (B) it is in the Compelling Interest of USCIS to to formulate a clear policy on whether it is going to review expired K-1's or it is not. There has been a lot of confusion on the issue. Back in 2007, the Congressional liaison of CSC was stating for the record that the Center will not review expired K-1's and that the Petitioners are free to file again. I have client emails to that effect. On May 23rd, 2008, in the USCIS Response to the Ombudsman's Recommendation 33, the Acting Director of USCIS, Jonathan Scharfen echoed CSC policy when he wrote: (page 2 USCIS Response to CISOMB Recommendation #33) So to recap where we were: (A) In 2007 there was officially no review of expired K-1 petitions returned by consulates at the CSC. (B) In 2008, the Acting Director of USCIS stated that an expired petition may not be reviewed and that there was no provision in law or regulation to revoke the approval of an I-129F. Still, consulates kept returning hundreds of these expired petitions to CSC, expecting some kind of review and either reaffirmation of the approval or a denial that dated back to the date of filing. Today, some consulates, like HCMC and Guangzhou are now taking the position that they will not approve a re-filed I-129F until they have received a ruling on the one that was previously returned to the Service Center. So hundreds of expired K-1 petitions are in a black hole at CSC. I know of cases that have waited more than two years. In late 2008, CSC appeared to have changed its policy and stated that it will start reviewing expired K-1 petitions. I also have a Congressional Liaison email to that effect. But no time is given. And no one yet, to my knowledge has seen such a review and there was no public announcement of the policy change to my knowledge. And nothing was said about the huge backlog of K-1's that were still sitting there. Grounds for expedited review at Service Centers include USCIS error and Compelling Interest of USCIS. It's pretty obvious that there was an error somewhere. Either AD Scharfen was in error in his memorandum when he stated that expired petitions may not be reviewed. Or else the policy of reviewing expired petitions, and consulates sending them back, expecting them to be reviewed, is in error. Somebody here has made a mistake. This is a first step toward litigation. I've spoken to other lawyers from larger firms about this. They agree. But they want to target DHS with the goal of getting DHS to train consular staff in proper adjudication standards. That would be great. But my immediate goal would be to get a decision on whether expired K-1 petitions can be reviewed or not. In 2007-2008*, the answer was an emphatic no. Now it appears to be 'yes'. (*Caveat: Throughout this time, Vermont has been reviewing them.) I think CSC's previous policy and AD Scharfen's memorandum were correct on the issue. There is nothing in the law or regulations that justifies reviewing or revoking (denying to the date of approval), expired K-1 petitions. Thus petitioners who lose at the consular interview should be free to re-file with more evidence. But nobody has told Department of State. DHS has the authority to lay down the law to DOS - but apparently, that's not going to happen. Therefore, the only route aggrieved petitioners have, is to go to CSC first, and then go to the courts. I'm planning on doing the expedited review requests pro bono. I'll need to be reimbursed for costs, such as Fed-Ex, translation of interview costs, copying or other costs associated with the filing. If people want to hire me later, for the revocation or a re-file, that can be agreed to later. There is no obligation. But be careful what you wish for. If in fact expedited review is granted, you had better have your rebuttal case prepared and ready if you're going to go it alone! CSC used to give you only 15 days. Now it's up to 30 to respond. (+3 for mail). There is no guarantee a request for expedited review will be granted. But in view of the plain errors here, it is certainly justified. Finally, I'll consider myself a winner if I just get a reasonable time-frame out of CSC. Or better yet, a reinstatement of the position stated in AD Scharfen's memorandum and a return to CSC's former policy. The root problem here, as everyone here knows, is that consulates return too many good cases. They overwhelm the Service Center staff resources. Thus, delays at Service Centers are insufferable. The reason is partially that DHS has failed to train consulates in proper standards of adjudication. Unfortunately, the law is the law. Either there is a statutory and regulatory basis for reviewing expired K-1 petitions, or there is not. And too many petitioners have waited far too long to find out. Email me at marcellislaw@gmail.com to learn more. Like I said, except for translation, Fed-Ex and copying costs - if any, I would do the request for expedited review - and ONLY THAT - pro bono. . If the outcome were the fast issuance of an NOID letter, you're on your own unless you hire someone to help you. But you'd be free to hire anyone you choose.

Something that has bothered me about IMBRA is the Multiple Petition Waiver requirement. The law specifically states it is required "...with respect to two or more applying aliens...". But USCIS has interpreted this to mean it's required for the same beneficiary. I wrote an article about it. There are some editing errors I hope they fix. But those C4L members to whom California Service Center is sending out letters stating they need to apply for a waiver to sponsor the same beneficiary, might benefit by reading it. http://www.ilw.com/articles/2007,0206-ellis.shtm I think USCIS blew it on this part of the law. This problem is compounded at the California Service Center and the TSC, which sends K-1's to CSC for processing. Unlike Nebraska or Vermont, CSC does not send out NOID letters to returned K-1's. So CSC petitioners find themselves in the position of being unable to prove the consulate was wrong in sending back the petition and being forced to apply for a discretionary waiver, without ever having a chance to respond to the consulate's allegations. CSC at least, should change the way it handles the return of K petitions from consulates.

Here is the link. There are a couple of parts of this memo that concern me. I have underlined them to point them out. One I think raises serious legal questions, perhaps constitutional issues as well. The other I think is legally incorrect on its face and I hope the memorandum will be rewritten to clarify this point. ---- "A. Mandatory Submission of Information on Criminal Convictions for Specified Crimes IMBRA provides that a petitioner for a K nonimmigrant visa for an alien fiancé(e) (K-1) or alien spouse (K-3) must submit with his or her Form I-129F information on any criminal convictions of the petitioner for any of the following “specified crimes”: page2 [sNIP] "If the petitioner indicates that he or she has been convicted by a court or by a military tribunal for one of the specified crimes by checking one or more of the boxes in Part C., question 2 of Form I-129F, or USCIS ascertains through relevant background checks that the petitioner has been convicted, the petitioner will be required to submit certified copies of all court and police records showing the charges and dispositions for every such conviction. This is required even if the petitioner’s records were sealed or otherwise cleared." __________ Here an obvious issue arises. What if the petitioner is unable to obtain copies of sealed or cleared records? Will DHS be satisfied with a letter from a clerk of court stating that the law forbids the opening of sealed records? It's important to note, the question of what is a conviction in immigration law is very complicated. There have literally been hundreds of court cases addressing the issue. What if a prosecutor declines to prosecute after the petitioner attends some counseling program. Is this a conviction? Under IMBRA, petitioners should be absolutely certain they have been convicted, before checking "yes" to that question. It is entirely possible they weren't convicted at all. Also, a conviction that has been vacated on the merits is no longer a conviction. Some state post-conviction relief statutes are written to overturn a conviction on the merits. Yet, at one point the petitioner had been convicted. Would he be required to disclose a conviction that has been overturned? ---- B. Filing Limitations IMBRA imposes limitations on the number of petitions a petitioner for a K nonimmigrant visa for an alien fiancé(e) (K-1) may file or have approved without seeking a waiver of the application of those limitations. If the petitioner has filed two or more K-1 visa petitions at any time in the past, or previously had a K-1 visa petition approved within two years prior to the filing of the current petition, the petitioner must request a waiver. These limitations do not apply to petitioners for a K nonimmigrant visa for an alien spouse (K-3)." [/i] ----- The IMBRA law itself specifies that the filing limitations apply to those petitions filed for different beneficiaries. The Aytes memorandum does not specify this. Thus, someone simply refiling to correct a previous filing for the same beneficiary would, according to the Aytes memorandum, be required to obtain a waiver. This is simply incorrect. Here is the law: (underlining added for emphasis). ‘‘(2)(A) Subject to subparagraphs ( B ) and ( C ), a consular officer may not approve a petition under paragraph (1) unless the officer has verified that— ‘‘(i) the petitioner has not, previous to the pending petition, petitioned under paragraph (1) with respect to two or more applying aliens; and ‘‘(ii) if the petitioner has had such a petition previously approved, 2 years have elapsed since the filing of such previously approved petition. _____________ The law here refers to consular officers approving petitions - which is incorrect. USCIS approves petitions. But ignoring that technical detail, the rest of the this section of the law is clear. Consular officers must verify that previously approved petitions were for two or more different "applying aliens" before referring the case to DHS for a waiver. Thus it is reasonable to assume that DHS need not issue waivers for those petitioners who have filed two petitions for the same beneficiaries. But unfortunately, where the law is clear on this point with regard to consulates, it is ambiguous with regard to DHS. I fear this Aytes memo will create confusion among adjudicators. It seems to require waivers for multiple petitions filed for the same beneficiary, which is contrary to the statute on its face. ___________ ‘‘( B ) The Secretary of Homeland Security may, in the Secretary’s discretion, waive the limitations in subparagraph (A) if justification exists for such a waiver. Except in extraordinary circumstances and subject to subparagraph ©, such a waiver shall not be granted if the petitioner has a record of violent criminal offenses against a person or persons." ___________ There are problems with the way the IMBRA law was drafted. They Aytes memo creates more ambiguity in a couple of areas.

The way it's written isn't entirely clear. But I think the RFE template has been approved and USCIS will immediately begin sending them out. Two things need to be approved by OMB. (1). The template for the RFE (request for evidence) and (2) the new I-129F form. The template, as I read it, has been cleared.

Actually, I've changed my view about giving DHS control of visa issuance. I'm not so sure it would be a good thing anymore for DHS to take over visa issuance. The system as it is structured now, allows DOS to inform DHS of its questions about the petition approval. And if DHS rules on those questions in favor of the petitioner, those particular objections have been decided. The beneficiary comes back, re-interviews, and if DOS has nothing new on her, she gets her visa. At least with the interplay between the two agencies, DHS/DOS, a beneficiary can overcome a denial. If the appeal is strictly through one agency, DHS, I think it would be more difficult to overcome and more bureaucratic. The upside of a DHS takeover would be that it would probably deny fewer family visas, since they are the ones who are likely to get sued in the US. I've had a lot of experience with it the past few years. If DHS were deciding visa applications, it might deny fewer visas. Or it might not. But the visas it denies, I think would be more difficult to overcome in the review process. So after a lot of hands on time since 2004, I've changed my mind. I'd prefer keeping two agencies involved in the process.