ellis-island
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Posts posted by ellis-island
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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. -
so is a class action suite from 1000's againt DHS the answer or 1000's of individual suites against both USCIS and DHS , which would catch Hilarys attention more ?
which would the press be more interested in ?
----
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).
-
very interesting, so you are saying stations all over the world do not follow the rules of explaination or direction from their big boss. intitutional culture of bias against USC bringing others here and that all elected officials offices are aware but cannot or are not interested in challenging this.
interesting they all can ignore the direction of the secetary of state with no santion.
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.
-
The oft used reason for a denial at GUZ is "not bonafide relationship" No other explanation on the white slip is ever given the beneficiary. In my oppinion this is a sleazy tactic used by the IV unit that is a blanketcatch all reason for denial. Clearly it is in violation of the 9 FAM. Why is the consulate still getting away with this?
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:
"But isn't it true that the consulate ALWAYS has "Evidence that USCIS did not have available at the time of adjudication" in the form of the P3, P4, and interview results? So even if they decide to follow this guideline, they can still deny the same petitions (that is, it's simply a matter of finding the correct reason once they decide to deny)?
And aren't the standards different between USCIS and GUZ? Legally married vs bona fide relationship?"
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.
Randy W: "So even if they decide to follow this guideline, they can still deny the same petitions (that is, it's simply a matter of finding the correct reason once they decide to deny)?"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.
Randy W. "And aren't the standards different between USCIS and GUZ? Legally married vs bona fide relationship?"
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.
"(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."
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:
"INS has asked us to remind consular officers that revocation requests must provide solid, factual evidence of fraud or misrepresentation, evidence that is likely to stand up in a court of law. In the case of sham marriages, for example, 9 FAM 42.43 N2.2 notes that INS requires at the least either documentary evidence that money changed hands between the petitioner and beneficiary or factual evidence that would convince "a reasonable person" that the marriage was entered into solely to evade immigration laws. Without such evidence, INS will be unlikely to obtain a petition's revocation if a petitioner chooses to contest a notice of intent to revoke."
He also wrote:
6. Please keep in mind the differences between revocation of the petition and denial of the visa application. In the absence of hard, factual evidence of fraud, misrepresentation, or ineligibility for status, consular sections are advised to issue the visa, assuming the alien is otherwise qualified, or if further investigation is warranted and holds a potential for resolving post's concerns, use a 221(g) refusal to obtain additional information. Posts should be generous in allowing applicants every opportunity to supplement their applications following a 221(g) refusal. Many consular sections polled by VO reported that they usually use 221(g) rather than petition return to INS as the most effective way of handling cases in which fraud is suspected and where further Information-gathering is likely to be able to resolve the doubts one way or the other.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:
"My point is that it seems to me that the returning of petitions is a sham, especially since the incentive is for the Consulate to NOT provide more than a cursory reason for refusal, since it could be overturned. The consulate is also not a party to the NOID proceedings and generally does not provide adequate evidence."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.
-
Thank you for that explanation on "reasonable person" I believe my case falls under those guidelines, White slip was the outcome even after submitting some more information requested on a blue slip. One item in resubmitting is the cost, not the cost as an expense, but the cost as something that was paid for in the original application that was not adjudicated according to law based on the facts of the case, how does DOS justifie taking someone's money this way? Maybe if the fee was returned, they would give more thought to the review.
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?
-
Hi Mark,
You talk about the CSC, but what about the Vermont Service Center??
Is the VSC better or just that you don't have much dealings with VSC??
Tom and Ling
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.
-
hey Mark,
good to see you posting here, on the other had bad to see you and the other lawyer guy ars now so frustrated with GUZ, that you need us.
Hope you and the other guy, plus the smart ones here can work out a good plan.
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.
name='Sebastian' date='Apr 20 2009, 01:02 AM' post='488602']IIWY, I would not make any opinion based on 1 case. But - since it's YOUR case - I would (again, IIWY) question and query each and every step , comment, finding and ruling, that occurred at GUZ - ask for facts, ask for 'supervisors comments' and ask for GUZ ConOff's 9FAM quotings -
then try to match up all that was 'said' in GUZ with what was 'quoted' in 9FAM, and then, only then, find the anomolies.
I don't have to tell you how to do your job, right? Others have great faith in you and yer ability to read, do research, use personal contacts to dig for information, use great research skills to show how 'silly stuff' is not promulgated as policy .
Right?
-
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:
There are several situations where USCIS may not act on a specific returned petition.For instance, K-1 petitions are temporally limited and may expire due to the passage of time.According to 8CFR 214.2(k)(5), an approved K-1 petition is only valid for four months. Consequently, in a number of cases, the K-1 petition will have already expired by the time DOS returns it to USCIS. 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."
(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.
-
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.
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"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”:
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"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."
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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?
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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)."
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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.
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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.
NOIR/NOID case law precedents to remember
in Ellis' Island
Posted
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.