Hit With CR1 Denial... CIS This can't be good!

[chilton747]

A friend, also an immigration layer, told me that no chance to win in the hearing since USCIS respects Consulate's decision. Besides, it ill be very time-consuming and costly. An alternative approach is to re-apply. We don't know which direction we should go. Hopefully can get some advice from you. Thanks.

 

Maybe if a petition gets denied in England or Canada there is no way to win because those consulates rarely deny a case to begin with so they have overwhelming evedince. I think places with a high denial rate like GUZ and Ho Chi Minh it would be very easy to overturn since they deny for just about anything they want and have no way to defend there findings so I don't think the USCIS respect there decisions that much.

 

 

 

 

how do know USCIS treats denied visas differently from different countries ?

 

 

I don't but for most visas to get denied in canada or england there has to be something illigal you hardly hear anybody getting denied as non bonafide. So the USCIS would more than likely uphold there decision.

 

Now you have places that deny just about everything as non bonafide with almost no wording except I don't believe its bonafide. Its bascally your word against the consulate so you should have the benifit of a doubt because you are innocent untill proven guilty in america unlike your spouse at the interview that has no rights.

 

 

Remember now that different countries have different rates of fraud.

[Bryon_Tran]

We have a new administration and a new head of DOS and DOHS I wonder if things will start to be different at the Consulate or at the USCIS regarding denying or denied petitions? This sounds cruel but maybe they are testing out the waters by denying our cases. Maybe its better to wait to file for the second round until we see how the new administration is handling the denied cases?

[khim]

sure fire way to wake them up is with a writ of mandamus.

 

One step ahead of you Chilton

 

 

 

And the FOIA's apparently didn't yield anything for you?

 

One good thing with FOIA... I was issued a number and I can track the position of where I am in line... The bad things is...

 

Your request is currently number 6680 of 7498 pending requests in Track One.

Date received: 01/16/2009

 

...another long wait.

 

 

Also if im not mistaken if for some reason the USCIS sides with the consulate I think you can appeal to some sort of appeals Court and if they decide in your favor she gets the visa with no interview. I'm not certain maybe somebody can else knows.

 

Three things can happen with the denial board.

1) USCIS agrees with DOS

2) USICS disagrees with DOS

3) USCIS request further information of relationship

 

If 1 happens, you can request an appeal. Appeals are not always granted, which makes no sense... your guilty... that¡¯s it. This is not want we want. Option at this time is start the process over again. The only problem with this is that it shows up in you file. It has been mentions to my wife that we should forget about the CR1 visa (denial) and start a new visa process. You can actually start a new visa... but the first is still there. The process will go undetected until she returns to GZ for her new interview. A big RED flag will pop up from the un-finished denial case and this is not good! The file can be stamped, as fraud and any access to the USA will be permanently denied. There is a good lesson here... ANSWER ALL and FINISH EVERYTHING

 

If 2 happens... This is what we all want. Once USCIS sends the letter saying that the decision form DOS has been overturned, DOS will contact my wife and she will be granted a second interview within one month. Popular consensus says that she will not be interviewed; instead she will be issued her visa. This is NOT true. She will be interview again and the results can be negative again. It is completely up to the VO.

 

And if 3happends... USCIS will request new information to prove that we are a bonafied couple and then base their decision. KEEP DOCUMENTING YOUR RELATIONSHIP!

 

For now I will keep my aggressive bombardment of letters to USCIS and calls to Congresswoman Eshoo. I will also continue to go to the GZ Embassy every time I am in Chain and speak with the DOS people.

 

...and a few other things!!!

[splinterman]

The USCIS will generally NOT make a decision to revoke - they have already approved the petition, and are rarely given anything beyond the "Not a Valid Relationship", as determined by the VO. The VO will pretty much stick to his guns there, and cannot be over-ruled. This does NOT meet "heavy burden a consular officer must meet before he or she can recommend an DHS-approved petition be revoked".

 

The GUIDANCE ON PETITION REVOCATIONS section 9 states ¡°As a rule of thumb, posts should not allow petitions earmarked for return to USCIS to languish more than a week or two.¡±

The white slip my wife received in the mail stated that it could take up to 3 months for GZ to prepare the files for return to CIS.

 

There is a BIG discrepancy between weeks and months here. Any thoughts on this?

 

 

 

My fiancee was denied a K-1 under INA 221(g) 'Not a bona fide relationship' on 21 August 08. Her file was sent out of GUZ on 31 Dec 08 and arrived in the States on 23 Jan 09. Now it's at the NVC waiting to be logged into their Fraud Management Database system and then it will be returned to the Vermont Service Center.

 

So, it took 4 months to leave GUZ and about another 3 weeks to get back to the USA. Seems like between 4 to 5 months to leave GUZ is the norm these days.

 

Best of luck to you! The battle is not over by any means so don't let it knock you out. Get back on your feet and work out a Plan B and in the meantime keep building your relationship with your wife, documenting everything along the way. You WILL beat this!

[Guest Pommey]

really sorry for all these whites, very bad

 

a couple of suggestions, just for thought

 

1. I see many of you are taking the appeal path, so why not file a new petition too, it wont reach GUZ for many months, what would be the harm ?

 

2. why don't you all band together , get your elected reps on board as a group and lobby the new administration and the new bosses of DHS/USCIS.

 

Maybe as a group, with a smart lawyer or two at the front and a pocket full of senators/congressmen in your pocket, something may happen with GUZ.

 

I'm sure you all are getting advice from a lot of really smart sites and people, but I thought I would just throw in my dim-witted 2 cents.

[HKG]

We received the exact same blue slip request as you, submitted what they asked for and was given a non-bonafide denial.

[SmilingAsia]

Maybe if a petition gets denied in England or Canada there is no way to win because those consulates rarely deny a case to begin with so they have overwhelming evedince. I think places with a high denial rate like GUZ and Ho Chi Minh it would be very easy to overturn since they deny for just about anything they want and have no way to defend there findings so I don't think the USCIS respect there decisions that much.

I know two Cantonese women got denied for spouse visa by British Consulate in Guangzhou. They sued in England and they won. It took quite a few months but they don't have to re-pay visa fee.

 

I heard someone got dined twice (for two different women at different time) for spouse visa, by Canadian Consulate in Hong Kong. He sued in Canada twice and he won twice, so he has brought two women to Canada so far

[Randy W]

 

Also if im not mistaken if for some reason the USCIS sides with the consulate I think you can appeal to some sort of appeals Court and if they decide in your favor she gets the visa with no interview. I'm not certain maybe somebody can else knows.

 

Three things can happen with the denial board.

1) USCIS agrees with DOS

2) USICS disagrees with DOS

3) USCIS request further information of relationship

 

 

 

The USCIS does not issue visas. Nor do they (or the coutr system) order the consulate to do so. TheUSCIS hearing (if there is one) is strictly about whether to revoke the approval and/or enter a finding of fraud which may result in a 10 year bar for your spouse.

 

The Doctrine of Consular Nonreviewability says that the decision of the consular officials is final, and may not be reviewed by the courts.

 

See pg. 5 of the DOJ's Immigration Litigation Bulletin of Aug. 2006

Courts

have held that decisions made by consular officers to issue or reject a visa are not subject to judicial review. The preclusion of judicial review over a consular officer¡¯s decision is known as the doctrine of consular nonreviewability

 

. . .

 

The courts first recognized the nonreviewability of consular determinations in the 1920s

 

. . .

 

[T]o allow an appeal from a consul's denial of a visa would be to make a judicial determination of a right when, in fact, a right does not exist. Permitting review of visa decisions would permit an alien to get his case into United States courts, causing a great deal of difficulty in the administration of the immigration laws . . . [T]he question of granting or refusing immigration visas to aliens should be left to the sound discretion of the consular officer.

Edited February 16, 2009 by Randy W (see edit history)

[Bryon_Tran]

 

Also if im not mistaken if for some reason the USCIS sides with the consulate I think you can appeal to some sort of appeals Court and if they decide in your favor she gets the visa with no interview. I'm not certain maybe somebody can else knows.

 

Three things can happen with the denial board.

1) USCIS agrees with DOS

2) USICS disagrees with DOS

3) USCIS request further information of relationship

 

 

 

The USCIS does not issue visas. Nor do they (or the coutr system) order the consulate to do so. TheUSCIS hearing (if there is one) is strictly about whether to revoke the approval and/or enter a finding of fraud which may result in a 10 year bar for your spouse.

 

The Doctrine of Consular Nonreviewability says that the decision of the consular officials is final, and may not be reviewed by the courts.

 

See pg. 5 of the DOJ's Immigration Litigation Bulletin of Aug. 2006

Courts

have held that decisions made by consular officers to issue or reject a visa are not subject to judicial review. The preclusion of judicial review over a consular officer¡¯s decision is known as the doctrine of consular nonreviewability

 

. . .

 

The courts first recognized the nonreviewability of consular determinations in the 1920s

 

. . .

 

[T]o allow an appeal from a consul's denial of a visa would be to make a judicial determination of a right when, in fact, a right does not exist. Permitting review of visa decisions would permit an alien to get his case into United States courts, causing a great deal of difficulty in the administration of the immigration laws . . . [T]he question of granting or refusing immigration visas to aliens should be left to the sound discretion of the consular officer.

 

Does that mean just the courts cant turn over the decsion of the consulate or does it mean that the USCIS cannot turn over the decision either?

[Randy W]

 

The USCIS does not issue visas. Nor do they (or the coutr system) order the consulate to do so. TheUSCIS hearing (if there is one) is strictly about whether to revoke the approval and/or enter a finding of fraud which may result in a 10 year bar for your spouse.

 

The Doctrine of Consular Nonreviewability says that the decision of the consular officials is final, and may not be reviewed by the courts.

 

See pg. 5 of the DOJ's Immigration Litigation Bulletin of Aug. 2006

Courts

have held that decisions made by consular officers to issue or reject a visa are not subject to judicial review. The preclusion of judicial review over a consular officer¡¯s decision is known as the doctrine of consular nonreviewability

 

. . .

 

The courts first recognized the nonreviewability of consular determinations in the 1920s

 

. . .

 

[T]o allow an appeal from a consul's denial of a visa would be to make a judicial determination of a right when, in fact, a right does not exist. Permitting review of visa decisions would permit an alien to get his case into United States courts, causing a great deal of difficulty in the administration of the immigration laws . . . [T]he question of granting or refusing immigration visas to aliens should be left to the sound discretion of the consular officer.

 

Does that mean just the courts cant turn over the decsion of the consulate or does it mean that the USCIS cannot turn over the decision either?

 

 

 

Both - if the USCIS disagrees with the denial, they can only re-affirm the petition, and send it back for a second chance. Usually, however, this seems to result in an approval by the Visa Officer.

 

They (the USCIS) are apparently under no obligation to take any action whatsoever on returned visa petitions.

Edited February 16, 2009 by Randy W (see edit history)

[Bryon_Tran]

 

The USCIS does not issue visas. Nor do they (or the coutr system) order the consulate to do so. TheUSCIS hearing (if there is one) is strictly about whether to revoke the approval and/or enter a finding of fraud which may result in a 10 year bar for your spouse.

 

The Doctrine of Consular Nonreviewability says that the decision of the consular officials is final, and may not be reviewed by the courts.

 

See pg. 5 of the DOJ's Immigration Litigation Bulletin of Aug. 2006

Courts

have held that decisions made by consular officers to issue or reject a visa are not subject to judicial review. The preclusion of judicial review over a consular officer¡¯s decision is known as the doctrine of consular nonreviewability

 

. . .

 

The courts first recognized the nonreviewability of consular determinations in the 1920s

 

. . .

 

[T]o allow an appeal from a consul's denial of a visa would be to make a judicial determination of a right when, in fact, a right does not exist. Permitting review of visa decisions would permit an alien to get his case into United States courts, causing a great deal of difficulty in the administration of the immigration laws . . . [T]he question of granting or refusing immigration visas to aliens should be left to the sound discretion of the consular officer.

 

Does that mean just the courts cant turn over the decsion of the consulate or does it mean that the USCIS cannot turn over the decision either?

 

 

 

Both - if the USCIS disagrees with the denial, they can only re-affirm the petition, and send it back for a second chance. Usually, however, this seems to result in an approval by the Visa Officer.

 

They (the USCIS) are apparently under no obligation to take any action whatsoever on returned visa petitions.

 

So if the uscis does not take any action then it does not result in a revocation and you cannot rebutt since there is not revocaiton then the only thing you can do is refile with continude evedence hopeing at some point the consulent will allow your visa given your persistance they will relize its not fraud at some time and issue you the visa.

[georgeandli]

Bryon_Tran, Remember you are dealing with TWO separate government agencies. They look at the petition from different views and look for different things. USCIS has already approved the petition, otherwise it wouldn't be in the position for a consulate to deny. This is the point that gets "tricky". Theoreticly the petitioner is afforded an opportunity to respond to the VOs negative finding. When the petitioner dosen't follow through the denial stays on the record. IMHO if you refile another petition for the same type of visa, unless you can find the reason for the first denial and address them, you may be denied again.

[jimu07]

I am so sorry to hear this as well. My fiance was given a blue slip in January of this year. I understand the anxiety and frustration as we are there now too. I think they must now have quotas for denials. I have gotten all the information she requested and sent it to Ling in Liuzhou. She will sign and send it on to GZ. Does anybody know when you return to Guangzhou for the second interview if it will be the same VO or is it someone else. Don't mean to sound lame but what does VO stand for? Visa Officer?? Good luck to all of us feeling BLUE..

[Randy W]

I am so sorry to hear this as well. My fiance was given a blue slip in January of this year. I understand the anxiety and frustration as we are there now too. I think they must now have quotas for denials. I have gotten all the information she requested and sent it to Ling in Liuzhou. She will sign and send it on to GZ. Does anybody know when you return to Guangzhou for the second interview if it will be the same VO or is it someone else. Don't mean to sound lame but what does VO stand for? Visa Officer?? Good luck to all of us feeling BLUE..

 

 

 

You watch for a letter asking her to bring her passport in. This is the indication that they intend to put a visa in it.

 

They can also ask for more information, or simply issue a white slip denial.

[georgeandli]

When my wife [fiancee at the time] went back with RFE stuff for the blues we got she was never interviewed again. She dropped off the stuff and they told her to come back in 2 business days for the results.