White but Not Done

[Stepbrow]

Hi Tom,

 

I would rather not mention the red flags in the forum. I knew they might come up because I had read the Marc Ellis article, and had seen them there.

I thought that our other evidence of relationship would compensate for the weakness of the red flags, but I was wrong. Even though I told the Conoff that these red flags were previously known to the USCIS in approving the petition, it did no good.

 

After getting an answer to my question in my other thread, I think I have come to a dead end in my efforts to find ways to reform the IV Unit in GZ. I am going to just focus on getting the I-130 approved.

 

One thing that I am definitely going to do is to appeal the NOID when it arrives. I think that if all of us, who received white slips, do this, eventually the stats will show up on cases lost, and the USCIS can then get after the DOS for not following policy as mentioned in Visa Policy Telegram of 2-25-04 which mentions that DOS is concerned about being named a co-defendant in appeal cases. If enough cases are appealed and won, then I believe that they will make some changes. Well maybe DOS is not all that concerned since the date of the VPT was Feb, 04

 

I appreciate everyone's support.

[david_dawei]

I think we'll find out (someday) that Section 5A simply defines "bona fide" as being entirely up to the discretion of the Visa Officer.

 

I believe the FAM states that up to 20% of a particular VO's cases should be reviewed, depending on the experience level of the VO.

 

"Red flags" and "reasons for denial" are not the same thing.

 

I hope you're not simply running into dead ends.

 

 

Perhaps this is it -

9 FAM 41.81 N6.5 Marriage Bona Fides

(CT:VISA-756; 07-27-2005)

a. If a consular officer finds that the fianc¨¦(e) or marital relationship is not

bona fide but is a sham entered into solely for immigration benefits, post

should return the K-1 or K-3 petition with a recommendation for

revocation to the national visa center (NVC) under cover of a

memorandum detailing the specific, objective facts giving rise to the

post¡¯s conclusion.

b. All immigrant and K-1/K-3 visa revocation cases are to be returned to the

following address:

National Visa Center

32 Rochester Avenue

Portsmouth, NH 03801

U.S. Department of State Foreign Affairs Manual Volume 9¨DVisas

9 FAM 41.62 Notes Page 6 of 13

Attn: Fraud Prevention Manager

 

That would be 9 FAM 41.81 N6.5a

Although it is always referenced as INA Section 5A.

 

I have seen an extended reference which was cut off as:

 

??.2(a)(5)(A)

[jhammer]

Hi Tom,

 

I would rather not mention the red flags in the forum. I knew they might come up because I had read the Marc Ellis article, and had seen them there.

I thought that our other evidence of relationship would compensate for the weakness of the red flags, but I was wrong. Even though I told the Conoff that these red flags were previously known to the USCIS in approving the petition, it did no good.

 

After getting an answer to my question in my other thread, I think I have come to a dead end in my efforts to find ways to reform the IV Unit in GZ. I am going to just focus on getting the I-130 approved.

 

One thing that I am definitely going to do is to appeal the NOID when it arrives. I think that if all of us, who received white slips, do this, eventually the stats will show up on cases lost, and the USCIS can then get after the DOS for not following policy as mentioned in Visa Policy Telegram of 2-25-04 which mentions that DOS is concerned about being named a co-defendant in appeal cases. If enough cases are appealed and won, then I believe that they will make some changes. Well maybe DOS is not all that concerned since the date of the VPT was Feb, 04

 

I appreciate everyone's support.

 

I like your style, StepBrow.

 

I wonder what the legal costs would come to for an appeal.

[Mike62356]

Good luck Stepbro, hope it all goes well for you.

[georgeandli]

I don't know about the cost [$] of an appeal. After Li and I got NOIDed we had the opportunity to rebut. The petition was returned stateside and the only cost was postage.

[Stepbrow]

David,

 

I think the reference is this: INA 212 (a) (5)(A) Labor Certification.

 

I got an email from the Con Off on our case. She stated that if an applicant did not satisfy the Con Off that the relationship was "Bonifide" then the applicant must qualify under another regulation. Since my wife does not qualify under the labor certification, she is refused.

 

Can you believe that?

 

The Con Off also reminded me that there is no legal mechanism to appeal the decision in GZ, but I new that from Randy's research. Thanks again, Randy.

 

I don't understand why the consulate is playing dirty pool with this issue. Why don't they just issue the White Slip with quoting INA 221 (g) (3).

[Inailit88]

Last day and fifth trip to consulate resulted in an interview with the acting Immigrant Visa Chief. He is reviewing the documentation that I submitted. It was quite detailed, and specific to the regs that the Conoff violated, and disregarded.

 

He is to email me the results of his review, and I will post the results when I am back. Feeling cautiously optimistic.

 

All the best, and thanks for the support.

 

So, have received any email from the Acting Immigrant Visa Chief about his/her review of the case?

Is your petition gonna be a NOID despite your meetings at GUZ with other Con off?

and how are you gonna appeal the NOID?

 

Your case was denied based on the Conoff's subjective" non-bonafide" relationship and it's non-appealable according to the so called bonafide non-reveiwablility given to back the conoff's up.

 

If your case was a K-1 then you can pursuit CR-1 or K-3 once it was denied for non-bonafide, now that yours is K-3 and it was turned down your only option might be your CR-1 or appealing your k-3 NOID which will most likely gonna take a long time. man...that non-bonafide rule has killed a lot cases and there's nothing you can do about it. These experiences of non-bonafide rejection have told us and warned us that you somehow have to review your petitions before you summit it in those conoff's eyes and their standpoint of view. so be prepared and provide as much evidences as possible on your application and give them no excuses of finding you non-bonafide.

 

good luck stepbrow and i hope you can put up a good fight with them and show them about your bonafidability.

[Stepbrow]

Here are a couple of good articles by Marc Ellis, Immigration Attorney,

I liked what he said about a Class Action Law suit in the second article. I would certainly sign on to that.

 

Clash of the Bureaucratic Titans: http://www.ilw.com/articles/2004,0429-ellis.shtm

 

Sequal to a Clash of Bureaucratic Titans: http://www.ilw.com/articles/2007,1018-ellis.shtm

[Stepbrow]

Finally the Consulate is abiding by the Regulations. After my comments, you will read an email that I got from the IV Unit. In it they state the correct reason for our refusal.

 

The fact that I got this email, and actually many others from the IV Unit demonstrates that they are responsive to certain types of claims. It also demonstrates that like all government workers, they know when they need to cover their their butts, and start doing things correctly.

 

They only responded to me because I was credible to them. Every time that I went to the consulate, I wore a suit and tie. Every time I spoke to them, I had done my research, and spoke only about our case in terms of the Regs. The credibility that I established, got them to listen to me. They knew, that they were not following the Regs. as they were supposed to. They also knew that they were accountable. I got the name of everyone I spoke to. They knew, when I asked them questions like, "Is it the policy of the Consulate to list the provisions of law under which a beneficiary is inadmissible when issuing a white slip?" [iNA 221(B)] that I could use the response in filing a lawsuit against the DOS, use the response to bring Congressional pressure on the DOS, or use the response to contact higher authorities at the DOS to require them to comply with the Regs.

 

For you guys who get white slips, remember this. You are an American Citizen. You have rights. But, you must assert (demand) your rights. You have the right to talk to the CO. You have the right to talk to the IV Chief. Under 9FAM41.121N2 you have this right: "the applicant is entitled to have full

consideration given to any evidence presented to overcome a presumption

or finding of ineligibility. It is the policy of the U.S. Government to give the

applicant every reasonable opportunity to establish eligibility to receive a

visa. This policy is the basis for the review of refusals at consular offices

and by the Department. It is in keeping with the spirit of American justice

and fairness."

 

Every one who gets a white should demand his rights. As more and more of us do this, it will put pressure on the Consulate to come into compliance with the regs. I believe that as we apply this pressure over time, and also bring our plight to our elected representatives, and put pressure on the DOS in DC, we will help to bring the Consulate in compliance with the Regs. That's all we want. 90% of these refusals would go away, if the Consulate would only go by their own Regs.

 

Here is the email:

Dear Mr. XXXX,

 

When your beneficiary XXXXXX was interviewed at the consulate on December 29, 2008, she was refused and given a letter indicating that she had received a 5a refusal. This letter was given in error. She should have been given the following letter:

 

Dear K Visa Applicant:

 

The Consulate is unable to issue you a K visa because, according to Section 221(g) of the Immigration and Nationality Act, you do not fulfill the eligibility requirements for the petitioned visa. The Consulate has determined, based on your testimony, documents and any other evidence, that you do not have a bona fide relationship with your petitioner. The Consulate will now return your case to the Homeland Security Department, Citizenship and Immigration Services (CIS) Department of the United States government for review and possible revocation. You will be informed by mail when the Consulate transfers the case file back to CIS. Once your case has been transferred, please contact CIS for information regarding your application. Processing may take up to several months. Additional specific information regarding the reasons for this decision can only be acquired during the CIS appeal process. If you or your petitioner contacts the Consulate by email, fax, letter, or in person, no specific information will be provided nor will additional documents be accepted.

 

We sincerely apologize for the error.

 

Sincerely,

 

The IV Unit

 

US Consulate Guangzhou

[Randy W]

Finally the Consulate is abiding by the Regulations. After my comments, you will read an email that I got from the IV Unit. In it they state the correct reason for our refusal.

 

The fact that I got this email, and actually many others from the IV Unit demonstrates that they are responsive to certain types of claims. It also demonstrates that like all government workers, they know when they need to cover their their butts, and start doing things correctly.

 

They only responded to me because I was credible to them. Every time that I went to the consulate, I wore a suit and tie. Every time I spoke to them, I had done my research, and spoke only about our case in terms of the Regs. The credibility that I established, got them to listen to me. They knew, that they were not following the Regs. as they were supposed to. They also knew that they were accountable. I got the name of everyone I spoke to. They knew, when I asked them questions like, "Is it the policy of the Consulate to list the provisions of law under which a beneficiary is inadmissible when issuing a white slip?" [iNA 221(B)] that I could use the response in filing a lawsuit against the DOS, use the response to bring Congressional pressure on the DOS, or use the response to contact higher authorities at the DOS to require them to comply with the Regs.

 

For you guys who get white slips, remember this. You are an American Citizen. You have rights. But, you must assert (demand) your rights. You have the right to talk to the CO. You have the right to talk to the IV Chief. Under 9FAM41.121N2 you have this right: "the applicant is entitled to have full

consideration given to any evidence presented to overcome a presumption

or finding of ineligibility. It is the policy of the U.S. Government to give the

applicant every reasonable opportunity to establish eligibility to receive a

visa. This policy is the basis for the review of refusals at consular offices

and by the Department. It is in keeping with the spirit of American justice

and fairness."

 

Every one who gets a white should demand his rights. As more and more of us do this, it will put pressure on the Consulate to come into compliance with the regs. I believe that as we apply this pressure over time, and also bring our plight to our elected representatives, and put pressure on the DOS in DC, we will help to bring the Consulate in compliance with the Regs. That's all we want. 90% of these refusals would go away, if the Consulate would only go by their own Regs.

 

Here is the email:

Dear Mr. XXXX,

 

When your beneficiary XXXXXX was interviewed at the consulate on December 29, 2008, she was refused and given a letter indicating that she had received a 5a refusal. This letter was given in error. She should have been given the following letter:

 

Dear K Visa Applicant:

 

The Consulate is unable to issue you a K visa because, according to Section 221(g) of the Immigration and Nationality Act, you do not fulfill the eligibility requirements for the petitioned visa. The Consulate has determined, based on your testimony, documents and any other evidence, that you do not have a bona fide relationship with your petitioner. The Consulate will now return your case to the Homeland Security Department, Citizenship and Immigration Services (CIS) Department of the United States government for review and possible revocation. You will be informed by mail when the Consulate transfers the case file back to CIS. Once your case has been transferred, please contact CIS for information regarding your application. Processing may take up to several months. Additional specific information regarding the reasons for this decision can only be acquired during the CIS appeal process. If you or your petitioner contacts the Consulate by email, fax, letter, or in person, no specific information will be provided nor will additional documents be accepted.

 

We sincerely apologize for the error.

 

Sincerely,

 

The IV Unit

 

US Consulate Guangzhou

 

 

 

 

I guess they can't find Section 5A either. B)

 

The INA has changed in structure over the years, including recently with the IMBRA regulations. The Section 5A reference that they have made over the years may suimply have referred to an older version of the INA. It is most likely still there, either under a different Section heading, or in an amendment, of in the 9 FAM that the State Dept follows.

 

Even so - they gave you the same response they do everyone else.

 

"Not a Bona fide relationship"

[Stepbrow]

Randy,

You sure are a fast reader.

I emailed a gal on VJ who had been down this route. Her comment to me confirmed thoughts that I had. To summarize, if the CO has questions or doubts about the relationship because of red flags, they refuse the visa. They do this to see if you will stick with the relationship. The truly "Not bonifide" or shaky relationships will fall by the way side. The petitions that are returned will have additional credibility because of extra time in the relationship, the determination to overcome the refusal, and the extra documentation that will accompany the new petition.

[Tom and Ling]

Randy,

You sure are a fast reader.

I emailed a gal on VJ who had been down this route. Her comment to me confirmed thoughts that I had. To summarize, if the CO has questions or doubts about the relationship because of red flags, they refuse the visa. They do this to see if you will stick with the relationship. The truly "Not bonifide" or shaky relationships will fall by the way side. The petitions that are returned will have additional credibility because of extra time in the relationship, the determination to overcome the refusal, and the extra documentation that will accompany the new petition.

 

Hi Steve,

 

"that you do not have a bona fide relationship with your petitioner."..This is a bunch of Horse Sh*t....and I mean that.

When you PMed me, I still think one of your reasons is totally unfounded.

Because of the reason I gave you, but if the other reason was more of a red flag....that would still be a "pile of manure" for them to explain.

 

Tom and Ling

[splinterman]

Randy,

You sure are a fast reader.

I emailed a gal on VJ who had been down this route. Her comment to me confirmed thoughts that I had. To summarize, if the CO has questions or doubts about the relationship because of red flags, they refuse the visa. They do this to see if you will stick with the relationship. The truly "Not bonifide" or shaky relationships will fall by the way side. The petitions that are returned will have additional credibility because of extra time in the relationship, the determination to overcome the refusal, and the extra documentation that will accompany the new petition.

 

Hi Steve,

 

"that you do not have a bona fide relationship with your petitioner."..This is a bunch of Horse Sh*t....and I mean that.

When you PMed me, I still think one of your reasons is totally unfounded.

Because of the reason I gave you, but if the other reason was more of a red flag....that would still be a "pile of manure" for them to explain.

 

Tom and Ling

 

 

Stepbrow, I have to politely disagree with you that you were given any kind of specific reason for your denial when GUZ 'corrected' themselves and then quoted you the infamous 221(g) 'Not A Bona Fide Relationship' as the reason for your denial. Really, a NABR is as clear as mud and there is nothing specific about it in terms of explaining what GUZ found 'specifically' wrong with your case. A specific reason would be something like, 'not enough time between a divorce and the initiation of the new relationship' or 'petitioner doesn't meet the income requirements for support'. These are examples of specific reasons, not the hogwash of a NABR.

 

What you learned that GUZ will deny for 221 (g) when they have doubts about a relationship-that they want to see you re-apply and stick with the relationship, is the sage advice that Chilton and others have offered in some of their recent posts.

 

I think it's great that you visited and talked with some of the GUZ staff because I believe that went a long way in their minds that you're committed to your SO. That's really what it's all about and that will probably have the same effect as the element of time and your renewed efforts at a visa. A positive result. But it will still take time to climb back up the ladder and get to the top step, which is another interview for your SO. And that was the objective of GUZ.

 

But I'd like to commend you on your efforts and in no way do I mean anything negative or critical in my post to you. GUZ simply 'baffled you with bullshit' which is the same BS that they've given to all of us 221(g) recipients.

 

My only criticism of GUZ is that they seem to be overzealously quick in handing out white slips for what I think to be frivolous reasons instead of issuing a blue slip and giving the petitioner and/or beneficiary every opportunity to explain whatever shortcoming they think they have found. GUZ would then be in compliance with the reg requirement to use 221(g) as a means of affording the applicants every opportunity to clear up any questions or inconsistencies or supplementing initial applications, and thus receive the visa. This wasn't intended to be translated into immediately issuing the white and returning the case for review and/or revocation but that is what it has become.

 

Given the fact that GUZ processes thousands of applications each month, I think the 221(g) has morphed into the immediate white slip to simply clear cases from the Conoff's desks, which is itself another violation of stated policy guidelines, instead of letting them lie around with a blue RFE, clutter up their desks and returning to them later.

 

I believe the primary reason why one couple gets a white and another couple gets a blue is that the blue couple doesn't have any red flags that involves suspicions about the true nature of the relationship, while the white couple can't possibly provide any physical evidence that would likely satisfy a conoff's suspicions. Only time in the relationship and the demonstration of determination in pursuing the visa will satisfy those kinds of suspicions from the conoff's perspective.

 

Let me take it a little farther and say that the reason GUZ won't give anyone a clear indication of the specific reason for denial is that they don't want people then immediately sending in reams of additional evidence to try and overcome their refusals, and backing up the process for pending cases when they know it won't possibly persuade them. Deny it, give out no info so nobody can contest it and hold it up, and move it on so GUZ can work on the next ton of files.

 

Maybe the biggest reason working against us is the sheer number of cases that GUZ handles so they can't afford to give due consideration to every one of them.

 

JMHO

Splinterman

Edited January 13, 2009 by splinterman (see edit history)

[HKG]

So we go full circle on the non-bonafide denial, is it a legal and valid denial as in a non-bonafide for a scam marriage? What will your defense be once it is sent back to the USA and MAYBE given a chance to answer your NOID or Revocation at USCIS, so they will send it back to GUZ. Or will we just have to accept a misrepresentation or fraud finding in our file.

 

Then with that finding of fraud or misrepresentation in the file,how easy will it be to get another type of Visa .

[Guest Rob & Jin]

Randy,

You sure are a fast reader.

I emailed a gal on VJ who had been down this route. Her comment to me confirmed thoughts that I had. To summarize, if the CO has questions or doubts about the relationship because of red flags, they refuse the visa. They do this to see if you will stick with the relationship. The truly "Not bonifide" or shaky relationships will fall by the way side. The petitions that are returned will have additional credibility because of extra time in the relationship, the determination to overcome the refusal, and the extra documentation that will accompany the new petition.

 

Hi Steve,

 

"that you do not have a bona fide relationship with your petitioner."..This is a bunch of Horse Sh*t....and I mean that.

When you PMed me, I still think one of your reasons is totally unfounded.

Because of the reason I gave you, but if the other reason was more of a red flag....that would still be a "pile of manure" for them to explain.

 

Tom and Ling

 

unfortunatly Guz plays by their rules and their rules only

 

we had red flags many do, the key is to address them before the interview, be smart go to ACS + ACH talk get things put into file, met VO's, be like chinese make relationship.

 

for all waiting or with white, take time prepare carefully, address concerns, make many visits to china, remember it is up to you to prove to them bonefide, why take chance its on your life together. i see that many that get blue or white on CFL are in past just silent members until get bad news, so maybe better members ask questions be true as to their past, then we can all help.

remember you cannot hide from embassy so why hide here ?

 

Jin