General Visa Discussion

[bar]

A prior I-129F application is causing problems. Is there anything I can do to resolve the problem?

[tonado]

Be more specific.

[bar]

My wife and I met on line and during my first trip to China I asked her to marry me, she said yes, and we became engaged. We anticipated a nine month wait for the BCIS to process her I-129F application but as our time line shows there were delays. After repeated attempts to get an explanation from BCIS with no success I hired an attorney who informed me that there was a hit on her name and they explained some of the possible causes. These causes I relayed to my fiance who then confessed that she had previously applied for a visa with an American man.

 

That first application was never completed because their relationship fell apart. Five months after retaining an attorney INS interviewed me, showed me pictures of my fiance and her first fiance together, informed me that they had been intimate, and wanted to know if I still wished to proceed. I confessed that I also was not a virgin and yes I wished to proceed. They eventually approved my application and sent the file to our embassy in Guangzou. She had her first interview 6/9/05 and was initially told that her visa was approved but after she did not receive it in the mail contacted GZ who told her they required additional time. On 7/18/05 she went in for a second interview where she was asked to explain her first visa application, she did her best but was informed that she was ineligible for a visa because "She previously attempted to obtain an U.S. visa through fraud and/ or misrepresentaion."

 

I believe that was because the information she supplied on her first application did not match the information we supplied on my application. We decided to get married in China and try again with an I-130 petition and possibly ask for a waiver. I just returned from China where I talked to a law firm who informed me that a waiver was not very likely and that I should be filing a K-3 visa application. My current attorney in America has never mentioned a K-3 and now I am getting nervous and so am searching for information.

 

 

Time Line:

7/18/03 I-129F receipt date

10/7/04 INS approved petition

6/9/05 GZ interview

7/18/05 Found ineligible for visa

10/19/05 Got married in China

1/26/06 I-130 receipt date 1/26/06

[david_dawei]

It is very difficult to give any advice on such a legal issue at stake here...

 

I'll start by saying that most on the board are comfortable to recommend a particularly american lawyer working in Guangzhou, see:

 

http://candleforlove.com/forums/index.php?showtopic=13036

 

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What I have seen in other cases of legal issues, was that members continued to seek legal advice till they hit upon someone who seemed to have the best advice and approach. I guess I would encourage you to continue to pursue this.

 

You can file for a I-129F/K3 after you get the receipt notice for the I-130/CR1... But I'm not convinced this would do much good as I would think she is flagged internally in computers... as the consulate told us, if she is denied for one visa already, the other visa process would become aware of that:

Following the example of a GUZ and HK processes in tandem:

 

If the CR1 interview gets scheduled at one and the K3 at another...

 

1) Does the simple 'request for information' (Overcome) prompt a notice to another post?

 

2) Does the post seeking revocation by returning the case to USCIS in the states prompt a notice to another post?

 

[purpose of questions is to see if/when an applicant can continue to pursue the other visa in light of the first one having some issue]

194948[/snapback]

If the applicant has ever been refused for a visa anywhere in the world then the adjudicating officer will be aware of it.

 

Naturally, if an applicant has recently been refused for an immigrant visa elsewhere, this will likely lead to a line of inquiry in that direction....

195553[/snapback]

 

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best to you two...and don't give up.. I think they look for that. Maybe you'll decide to go live in china...

[frank1538]

I merged the topics into this first one and deleted some of the posts.

[cosmiclobster]

If she "forgot" to mention the first failed I-129 attempt when the paperwork for the second one was filled out and sent in, you may have big problems!

I believe the I-129 asks you if you have ever applied for a visa before. If she had applied, even though unsucessful, and you put she had never applied on your app., then they caught her in a lie and they don't like that.

Hopefully getting married will work in your favor - only time will tell.

 

Moral of the story: be 100% honest on your petition!!

 

Good luck!!!

[frank1538]

Your lawyers can best advise you on your options, but as a general rule, "...Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible." http://uscis.gov/lpBin/lpext.dll/inserts/s....htm#slb-act212

 

"Willfully misrepresenting a material fact" sounds a lot like "Material misrepresentation" which DOS defines as "...giving fraudulent documents or telling a consular officer false information in an interview. The information must be important and make a difference in whether the consular officer issues a visa applicant a visa." http://travel.state.gov/visa/frvi/glossary...ary_1363.html#m

 

There is a limited waiver exception to the ban on admissibility:

 

"...The Attorney General may, in the discretion of the Attorney General, waive the application of clause (i) of subsection (a)(6)© in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien..." http://uscis.gov/lpBin/lpext.dll/inserts/s...t-frame.htm&2.0

 

We have one CFL member who is attempting to obtain a similar but not identical waiver for his wife, and if his experience is an indicator, your lawyer is right in suggesting that the likelihood is not very good. I am sure you will note that this particular waiver is only available when the alien is a spouse, son, or daughter of a US citizen, and I don't know if the type of visa (immigrant or non immigrant K-3) would make a difference.

 

Again, your lawyers are best able to advise you, and what I say should NOT be taken as any sort of legal advice, but if I were in your shoes, I'd probably try to get to the bottom of the first visa application and see if there really was fraud or a material misrepresentation. Fraud is difficult to prove because it requires the VO to show that the alien had the intent to deceive. Whether a misrepresented fact is material can be analyzed in a number of ways, but I like to use two methods. First, if the true fact were known, would the visa have been denied? If the answer is "yes", I would conclude that the fact was a material fact. Second, if the true fact were known, would it have led to some other inquiry that might show inadmissibility. For example, if an applicant lied about having lived in another country for more than six months, the fact that the individual actually lived somewhere else is not in an of itself a basis for inadmissibility, but the lie would preclude the VO from requiring a police clearance which might have shown inadmissibility.

 

If it turns out that there really wasn't fraud or a misrepresentation of a material fact, maybe the consulate would view your current petition in a more favorable light.

[NY-Viking]

Have you gone through the application to find out what the fraud issue is? This is something the government takes very seriously.

 

I have a friend in China who was a shoe-in for a B2 visitor visa (lots of money, married, owned property, great job, etc.). She was in an MBA program that had some study in the U.S., and the applicants for that paricular program are approved almost uniformly. But she put some false information in her application, the Consulate caught it, and she got denied.

 

So, it sounds like you'll probably need some legal assistance with this, but make sure you get a handle on what they consider the fraud issue to be - both for the sake of her application, and for your relationship. The fact that you're both not virgins was probably not a shock to you, and that she was previously engaged to an American shouldn't be an issue either, but that you didn't know that when you initially filed may be some cause for concern.

[Luo_Bin_&_Jialu]

As per my usual response when someone has issues related to legal matters: Retain the attorney known on CFL as King.

 

King is an american attorney living and working for a firm in Guangzhou China that specializes in visas. His name is Peter Paget, his firm is Global Visa.

 

Do a search as I post for him all the time. I do this not at his request, but due to the fact that his consult produced results that greatly exceeded my expectations.

 

I have a friend who married a chinese woman, she is a great person and helps all kinds of people. During the few years I have known her, she has told me of many woman who are looking for american men. One in particular loves to play with men. I know who this woman is and she is one of the most beautiful and exotic looking things I have ever seen. My heart goes out to the men who she has played and pray that I nor anyone I know ever goes through that kind of bullsh**. It is a shame that your SO probably just didn't want to tell you and meant no harm which could now result in dire consequences for you both.

I understand the issues faces by DOS, CIS, and GUZ and wish the best for you and your issue.

If you cannot find Kings info, PM me.

 

Good luck!

 

Rob

[Guest pushbrk]

Your lawyers can best advise you on your options, but as a general rule, "...Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible."  http://uscis.gov/lpBin/lpext.dll/inserts/s....htm#slb-act212

 

"Willfully misrepresenting a material fact" sounds a lot like "Material misrepresentation" which DOS defines as "...giving fraudulent documents or telling a consular officer false information in an interview. The information must be important and make a difference in whether the consular officer issues a visa applicant a visa."  http://travel.state.gov/visa/frvi/glossary...ary_1363.html#m

 

There is a limited waiver exception to the ban on admissibility:

 

"...The Attorney General may, in the discretion of the Attorney General, waive the application of clause (i) of subsection (a)(6)© in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien..."  http://uscis.gov/lpBin/lpext.dll/inserts/s...t-frame.htm&2.0

 

We have one CFL member who is attempting to obtain a similar but not identical waiver for his wife, and if his experience is an indicator, your lawyer is right in suggesting that the likelihood is not very good.  I am sure you will note that this particular waiver is only available when the alien is a spouse, son, or daughter of a US citizen, and I don't know if the type of visa (immigrant or non immigrant K-3) would make a difference.

 

Again, your lawyers are best able to advise you, and what I say should NOT be taken as any sort of legal advice, but if I were in your shoes, I'd probably try to get to the bottom of the first visa application and see if there really was fraud or a material misrepresentation.  Fraud is difficult to prove because it requires the VO to show that the alien had the intent to deceive.  Whether a misrepresented fact is material can be analyzed in a number of ways, but I like to use two methods.  First, if the true fact were known, would the visa have been denied?  If the answer is "yes", I would conclude that the fact was a material fact.  Second, if the true fact were known, would it have led to some other inquiry that might show inadmissibility.  For example, if an applicant lied about having lived in another country for more than six months, the fact that the individual actually lived somewhere else is not in an of itself a basis for inadmissibility, but the lie would preclude the VO from requiring a police clearance which might have shown inadmissibility. 

 

If it turns out that there really wasn't fraud or a misrepresentation of a material fact, maybe the consulate would view your current petition in a more favorable light.

202952[/snapback]

I agree with Frank but have an additional concern. I think it is very important that you clarify whether the fraud issue is associated with the first petition itself, or simply the "fraud" of YOUR petition stating "NO" in a blank where it should have said "YES" with regard to past petitions in behalf of THIS beneficiary.

 

They may be claiming your SO is defrauding YOU by not telling you in advance about the other petition.