Bonafide relation

[HKG]

http://www.uscis.gov/uscis-ext-templating/...errFrameset.jsp

 

Type this in then go to, D6 Fiancees and Fiance of US Citizen K1 then select Jan. 08, 2007, there is another decision for Feb. 02, 2007.

 

I would like to add to this post on, non-bonafide relationship rulings. A US Supreme Court ruling. Loving v. Virginia, 388 U.S. 1 (1967), which focused on an anti-miscegenation statute. It is my thoughts that if all requierments for a visa petition are met and still you receive a Non-bonafide relations ruling then this subjective ruling just may be a racist decision, being it intentional or un-intentional but non the less illegal if one applies the 1967 ruling on anti-miscegenation.

[david_dawei]

Here is the official GUZ partyline on why they deny under INA 212(a)(5)(A):

 

"Regarding the rationale behind using section 212(a)(5)(A) of the Immigration and Nationality Act for refusing Ms. Liu’s visa, please refer to this explanation:

 

Under Section 212(a)(5)(A), "Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that: i) there are not insufficient workers who are able, willing and qualified(or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and ii) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed."

 

An alien applying for an immigrant visa must apply under a family-based or an employment-based category. If an alien fails to qualify for a family-based immigrant visa, the alien needs an employment based visa and certification from the Department of Labor (see 9 FAM 42.43 Note 2, 2.1, 2.2). Failure to have labor certification from the Department of Labor makes the alien inadmissible under Section 212(a)(5)(A).

 

In a nutshell, the reasoning here is that:

 

A ) Aliens applying for an immigrant visa must qualify under an employment-based petition or, if there is a valid family relationship, a family-based petition.

 

B ) If the family relationship is determined to be mala fide, the applicant cannot use the family petition for an immigrant visa.

 

C ) The only other route through which to get an immigrant visa would be the employment-based petition. This, of course, requires a labor certificate from the Department of Labor as well as an approved employment immigrant visa petition.

 

D ) Without this labor certificate, the applicant is refused under 212(a)(5)(A) of the INA.

 

As Ms. XXX was unable to convince the interviewing officer that her claim to a family-based immigration visa was justified, 212(a)(5)(A) is fully applicable to her situation.

 

Since K visas are technically nonimmigrant visas (that are processed and treated very similarly to immigrant visas), some related guidelines apply. The following FAM references deal specifically with Ks; please visit foia.state.gov to review these guidelines.

 

9 FAM 41.81 N6.5 Marriage Bona Fides

 

9 FAM 41.81 N9 MARRIAGE FOR PURPOSE OF EVADING IMMIGRATION LAWS-INA 204©

 

If you have any further questions about your case, feel free to bring them up with the United States Citizenship and Immigration Service (USCIS) once your case has arrived back at the National Visa Center (NVC) in the United States. Once the NVC has received your case, you will have a chance to provide additional information for USCIS officers to review. In the past, after receiving additional information, USCIS has sometimes reaffirmed cases that were revoked in Guangzhou and sent them back to be re-interviewed. It is possible this may happen in your case.

 

There is no legal mechanism by which you can personally appeal the case here in China or ask to have it reviewed by US Consulate Guangzhou consular management. The proper channel for appeal or re-application is through the National Visa Center. "

Edited January 12, 2009 by DavidZixuan (see edit history)

[Randy W]

Here is the official GUZ partyline on why they deny under INA 212(a)(5)(A):

 

"Regarding the rationale behind using section 212(a)(5)(A) of the Immigration and Nationality Act for refusing Ms. Liu¡¯s visa, please refer to this explanation:

 

Under Section 212(a)(5)(A), "Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that: i) there are not insufficient workers who are able, willing and qualified(or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and ii) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed."

 

An alien applying for an immigrant visa must apply under a family-based or an employment-based category. If an alien fails to qualify for a family-based immigrant visa, the alien needs an employment based visa and certification from the Department of Labor (see 9 FAM 42.43 Note 2, 2.1, 2.2). Failure to have labor certification from the Department of Labor makes the alien inadmissible under Section 212(a)(5)(A).

 

In a nutshell, the reasoning here is that:

 

A ) Aliens applying for an immigrant visa must qualify under an employment-based petition or, if there is a valid family relationship, a family-based petition.

 

B ) If the family relationship is determined to be mala fide, the applicant cannot use the family petition for an immigrant visa.

 

C ) The only other route through which to get an immigrant visa would be the employment-based petition. This, of course, requires a labor certificate from the Department of Labor as well as an approved employment immigrant visa petition.

 

D ) Without this labor certificate, the applicant is refused under 212(a)(5)(A) of the INA.

 

As Ms. XXX was unable to convince the interviewing officer that her claim to a family-based immigration visa was justified, 212(a)(5)(A) is fully applicable to her situation.

 

Since K visas are technically nonimmigrant visas (that are processed and treated very similarly to immigrant visas), some related guidelines apply. The following FAM references deal specifically with Ks; please visit foia.state.gov to review these guidelines.

 

9 FAM 41.81 N6.5 Marriage Bona Fides

 

9 FAM 41.81 N9 MARRIAGE FOR PURPOSE OF EVADING IMMIGRATION LAWS-INA 204?

If you have any further questions about your case, feel free to bring them up with the United States Citizenship and Immigration Service (USCIS) once your case has arrived back at the National Visa Center (NVC) in the United States. Once the NVC has received your case, you will have a chance to provide additional information for USCIS officers to review. In the past, after receiving additional information, USCIS has sometimes reaffirmed cases that were revoked in Guangzhou and sent them back to be re-interviewed. It is possible this may happen in your case.

 

There is no legal mechanism by which you can personally appeal the case here in China or ask to have it reviewed by US Consulate Guangzhou consular management. The proper channel for appeal or re-application is through the National Visa Center. "

 

" . . . And besides we're not hiring"?

 

That would have to be the most absurd answer those people have ever given out.

[Randy W]

David, where did you find this?

[david_dawei]

David, where did you find this?

I often talk to or get stuff from members who undergo a whiteslip... so I posted it so that it doesn't have to get associated with any member in particular. but it's a letter directly from a VO.

[Randy W]

David, where did you find this?

I often talk to or get stuff from members who undergo a whiteslip... so I posted it so that it doesn't have to get associated with any member in particular. but it's a letter directly from a VO.

 

 

Claiming you didn't apply for a labor visa as the reason for the denial of a family visa is 100% insane.

 

But I think what it points out is that when you ask someone at the consulate for an opinion on your case, they take a cursory look at your case, and give an off-the-cuff reaction, rather than an official position.

[david_dawei]

I must be going crazy since I understand the absurdity of this shell game denial... they are simply saying that the regulation which prevents you from entering is the last one they are permitting you to try and enter under.

 

Once they see they will not issue a visa, they know the applicant still has other avenues by which to enter the US; in that case, it appears that they would technically allow you to enter if you had a labor certificate (which would probably be very rare). Once they rule out all avenues by which the applicant can enter, they are denied by the last one (?)... I know it is crazy...

[Randy W]

That would say that they are denying an avenue which was never applied for and they were never eligible for in the first place - They are avoiding the question of why the first was denied by shifting the blame to the second.

 

I think the section 5A used to be in the INA, but was removed in the IMBRA shuffle, and that they are finally figuring out not to refer to it anymore. They told someone recently that that reference was in error. I would expect it to now be contained in an amendment somewhere.

 

Look at 9FAM 41.81 N6.5a). My guess is that that corresponds to the old Section 5A of the INA, and somebody really just came up with a seat of the pants justification there

[Randy W]

From 9FAM 41.81

Eligibility as an immigrant required. The consular officer, insofar as is practicable, must determine the eligibility of an alien to receive a nonimmigrant visa under paragraphs (a), ( or © of this section as if the alien were an applicant for an immigrant visa, except that the alien must be exempt from the vaccination requirement of INA 212(a)(1) and the labor certification requirement of INA 212(a)(5).

 

Can they really deny her based on a requirement that she is exempt from?

 

 

Well, yes, but it's interesting that they would put it in writing.

 

I think whoever wrote that just didn't know which end was up

[ellis-island]

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).

Edited April 11, 2009 by ellis-island (see edit history)

[HKG]

 

If only the people who have received a non-bonafide relation were treated accordingly

[okie2]

 

If only the people who have received a non-bonafide relation were treated accordingly

 

no one is treated equal we got a blue slip for "not a valid relationship" was one of the reasons given to us

with me living with my fiancee for 17 months and giving them 3 police documents notarized registerations that I lived at the same address as my fiancee. we were given this ruling.

While at the same time most of you have come to china for a 1 or 2 week visit and only give them a hand full of emails and sail right on through interview with no problem. so where is this fare?

I think they do this just to show their boss they are doing a good job keeping the bad guys out of the usa and from getting a visa.

this whole system is not about people it is for the money as always why do you pay thousands of dollars for the same thing the mexicans get free and then some.

Edited October 31, 2009 by okie2 (see edit history)

[Stepbrow]

 

If only the people who have received a non-bonafide relation were treated accordingly

 

no one is treated equal we got a blue slip for "not a valid relationship" was one of the reasons given to us

with me living with my fiancee for 17 months and giving them 3 police documents notarized registerations that I lived at the same address as my fiancee. we were given this ruling.

While at the same time most of you have come to china for a 1 or 2 week visit and only give them a hand full of emails and sail right on through interview with no problem. so where is this fare?

I think they do this just to show their boss they are doing a good job keeping the bad guys out of the usa and from getting a visa.

this whole system is not about people it is for the money as always why do you pay thousands of dollars for the same thing the mexicans get free and then some.

 

 

Your right. The system is not fair. The visa applicant must prove that immigration is not the only reason that they wish to come to the US.

 

It is difficult for us to accept that they are guilty until proven innocent, but that is how it is.

[Palladin]

http://www.uscis.gov/uscis-ext-templating/...errFrameset.jsp

 

Type this in then go to, D6 Fiancees and Fiance of US Citizen K1 then select Jan. 08, 2007, there is another decision for Feb. 02, 2007.

 

I looked at the AP decisions at the above link. You only cited K-1 petition cases. But there are none for CR1. Why? Under what list are the CR1 cases?