White Slip

[warpedbored]

Randy has the right of it. If you were to base your case that they implied you commited visa fraud solely on the denial you would be wasting your time. GZ is too smart to incriminate themselves in such a way. Especially since all they have to do is say no bonafide relationship. The nefarious catch all no one can challenge.

[IllinoisDave]

Sorry to hear about this. Do you have it in writing that they accused YOU of fraud? From your OP it sounds like you're saying that the mere fact they denied the visa means they're accusing YOU of lying and being a party to fraud. If that's YOUR personal conclusion you'll never win a libel case.

 

The sad but true fact is that GUZ has done enough of these to know how to cover their a$$es when it comes to denying visas.

 

Good luck nonetheless.

 

 

Yes, they are accusing him of misrepresentation or fraud. There is no court anywhere where a case against the consulate can be filed. The court hearing (if one occurs - unlikely) would be held by the USCIS in the United States on whether to revoke the petition.

Are you saying they're accusing him directly in this case, in writing, or simply by extension via the denial of the visa to the beneficiary which means they're accusing all petitioners who get denials? If they've put that in writing that's one thing. Otherwise, my take on denials has always been that it's more of an accusation against the beneficiary.

 

That would make a difference only in a libel trial - which won't fly. They (the applicant and beneficiary) are both claiming a bona fide relationship, GUZ is claiming otherwise.

 

Libel is the publication of a false statement that is damaging to a person's reputation. This does not happen.

 

If a misrepresentation or fraud claim is pursued, it is done by the USCIS in the US court system, as has been written about by Marc Ellis. The hearing would be based on evidence supplied by the Dept of State (GUZ in this case), who is usually only interested in denying the visa, and not in any court hearing. Thus, there will normally not be enough evidence.

Exactly. I knew we were in agreement.

[georgeandli]

Which brings us back full circle to the point I always try to make. There are provisions in place to rebut/challenge the NOID. When GUZ doesn't provide the info in a "timely" fashion for an appeal that isn't criminal on some level? The petitioner can't rebut a vague not bona fide. The three or four issues they had with Li and I were IMHO easily explained in a rebut letter. Of course the rebut goes to USCIS who has already approved the petition.

[Randy W]

Which brings us back full circle to the point I always try to make. There are provisions in place to rebut/challenge the NOID. When GUZ doesn't provide the info in a "timely" fashion for an appeal that isn't criminal on some level? The petitioner can't rebut a vague not bona fide. The three or four issues they had with Li and I were IMHO easily explained in a rebut letter. Of course the rebut goes to USCIS who has already approved the petition.

 

The visa denial is final - there is no rebuttal, challenge, or appeal. The NOID is handled in the states by the USCIS.

Immigration law delegates the responsibility for issuance or refusal of visas to consular officers overseas. They have the final say on all visa cases. By regulation the U.S. Department of State has authority to review consular decisions, but this authority is limited to the interpretation of law, as contrasted to determinations of facts.

 

. . .

 

An applicant can influence the post to change a prior visa denial only through the presentation of new convincing evidence . . .

Your case was very unique in that appeared (to me at least) that they WANTED you to rebut and have the petition reaffirmed and left the door wide open for you to do so without even the court hearing.

 

For most cases, they apparently simply want to deny the visa. They aren't interested in any court proceedings, and don't provide enough information for the USCIS to do so.

 

For some very rare cases, they supply more information - enough for the USCIS to stage a revocation hearing.

 

Most white slip cases simply fall into a legal black hole - they have a petition approved by the USCIS, but a visa denial from GUZ - with no further action.

[HKG]

Which brings us back full circle to the point I always try to make. There are provisions in place to rebut/challenge the NOID. When GUZ doesn't provide the info in a "timely" fashion for an appeal that isn't criminal on some level? The petitioner can't rebut a vague not bona fide. The three or four issues they had with Li and I were IMHO easily explained in a rebut letter. Of course the rebut goes to USCIS who has already approved the petition.

 

The visa denial is final - there is no rebuttal, challenge, or appeal. The NOID is handled in the states by the USCIS.

Immigration law delegates the responsibility for issuance or refusal of visas to consular officers overseas. They have the final say on all visa cases. By regulation the U.S. Department of State has authority to review consular decisions, but this authority is limited to the interpretation of law, as contrasted to determinations of facts.

 

. . .

 

An applicant can influence the post to change a prior visa denial only through the presentation of new convincing evidence . . .

Your case was very unique in that appeared (to me at least) that they WANTED you to rebut and have the petition reaffirmed and left the door wide open for you to do so without even the court hearing.

 

For most cases, they apparently simply want to deny the visa. They aren't interested in any court proceedings, and don't provide enough information for the USCIS to do so.

 

For some very rare cases, they supply more information - enough for the USCIS to stage a revocation hearing.

 

Most white slip cases simply fall into a legal black hole - they have a petition approved by the USCIS, but a visa denial from GUZ - with no further action.

Please tell me is the following "paste" valid?

 

¡°6. In adjudicating visa cases involving petitions, posts should bear in mind three important factors: A. the consular officer's role in the petition process is to determine if there is substantial evidence relevant to petition validity not previously considered by DHS, and not to merely readjudicate the petition; B. the memo supporting the petition return must clearly show the factual and concrete reasons for recommending revocation (observations made by the consular officer cannot be conclusive, speculative, equivocal or irrelevant) and; C. consular officers must provide to the applicant in writing as full an explanation as possible of the legal and factual basis for the visa denial and petition return. Post must maintain a copy of the returned petition, other evidence relevant to the case, and a copy of the written notification of the denial.

 

 

 

No readjudication of petitions

 

7. In general, an approved petition will be considered by consular officers as prima facie evidence that the requirements for classification - which are examined in the petition process - have been met. Where Congress has placed responsibility and authority with DHS to determine whether the requirements for status which are examined in the petition process have been met, consular officers do not have the authority to question the approval of petitions without specific evidence, generally unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status (see 9 FAM 41.53, Note 2, 41.54 Note 3.2-2, 41.55 Note 8, 41.56 Note 10, 41.57 Note 6, and 42.43 Note 2) due to fraud, changes in circumstances or clear error on the part of DHS in approving the petition. Conoffs should not assume that a petition should be revoked simply because they would have reached a different decision if adjudicating the petition

[Randy W]

 

Please tell me is the following "paste" valid?

 

¡°6. In adjudicating visa cases involving petitions, posts should bear in mind three important factors: A. the consular officer's role in the petition process is to determine if there is substantial evidence relevant to petition validity not previously considered by DHS, and not to merely readjudicate the petition; B. the memo supporting the petition return must clearly show the factual and concrete reasons for recommending revocation (observations made by the consular officer cannot be conclusive, speculative, equivocal or irrelevant) and; C. consular officers must provide to the applicant in writing as full an explanation as possible of the legal and factual basis for the visa denial and petition return. Post must maintain a copy of the returned petition, other evidence relevant to the case, and a copy of the written notification of the denial.

 

 

 

No readjudication of petitions

 

7. In general, an approved petition will be considered by consular officers as prima facie evidence that the requirements for classification - which are examined in the petition process - have been met. Where Congress has placed responsibility and authority with DHS to determine whether the requirements for status which are examined in the petition process have been met, consular officers do not have the authority to question the approval of petitions without specific evidence, generally unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status (see 9 FAM 41.53, Note 2, 41.54 Note 3.2-2, 41.55 Note 8, 41.56 Note 10, 41.57 Note 6, and 42.43 Note 2) due to fraud, changes in circumstances or clear error on the part of DHS in approving the petition. Conoffs should not assume that a petition should be revoked simply because they would have reached a different decision if adjudicating the petition

 

 

The consulate doesn't readjudicate the petition - they evaluate the Chinese beneficiary's visa application. The visa is (supposedly) awarded or denied on the basis of the P3/P4 information, and the interview. This new information can be used to recommend that the original petition be revoked if it indicates that the original petition was not factual. "Fraud, changes in circumstances or clear error on the part of DHS in approving the petition" are also potential factors.

 

The white slip is apparently the written notification that the consulate provides the beneficiary. Any consular notes or more detailed information are considered privileged information until it gets back to the US. At that point, you may file a FOI request, or get an opportunity to voice your side in court. In George's case (again VERY unique) they contacted him directly with this information.

 

The "no readjudication of petitions" provision is the reason some believe in "front-loading" - loading the petition with relationship evidence, which is then approved by the USCIS and sent to the consulate. The consulate cannot then turn around and use that evidence against the beneficiary.

 

The problem with your approach, like I said earlier, will be to find a court which can take a case against the consulate.

[HKG]

 

Please tell me is the following "paste" valid?

 

¡°6. In adjudicating visa cases involving petitions, posts should bear in mind three important factors: A. the consular officer's role in the petition process is to determine if there is substantial evidence relevant to petition validity not previously considered by DHS, and not to merely readjudicate the petition; B. the memo supporting the petition return must clearly show the factual and concrete reasons for recommending revocation (observations made by the consular officer cannot be conclusive, speculative, equivocal or irrelevant) and; C. consular officers must provide to the applicant in writing as full an explanation as possible of the legal and factual basis for the visa denial and petition return. Post must maintain a copy of the returned petition, other evidence relevant to the case, and a copy of the written notification of the denial.

 

Randy W and all of you who help me with some answers, thank you.

 

A good New Year, Year of the OX, 2009 to all of you.

 

 

No readjudication of petitions

 

7. In general, an approved petition will be considered by consular officers as prima facie evidence that the requirements for classification - which are examined in the petition process - have been met. Where Congress has placed responsibility and authority with DHS to determine whether the requirements for status which are examined in the petition process have been met, consular officers do not have the authority to question the approval of petitions without specific evidence, generally unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status (see 9 FAM 41.53, Note 2, 41.54 Note 3.2-2, 41.55 Note 8, 41.56 Note 10, 41.57 Note 6, and 42.43 Note 2) due to fraud, changes in circumstances or clear error on the part of DHS in approving the petition. Conoffs should not assume that a petition should be revoked simply because they would have reached a different decision if adjudicating the petition

 

 

The consulate doesn't readjudicate the petition - they evaluate the Chinese beneficiary's visa application. The visa is (supposedly) awarded or denied on the basis of the P3/P4 information, and the interview. This new information can be used to recommend that the original petition be revoked if it indicates that the original petition was not factual. "Fraud, changes in circumstances or clear error on the part of DHS in approving the petition" are also potential factors.

 

The white slip is apparently the written notification that the consulate provides the beneficiary. Any consular notes or more detailed information are considered privileged information until it gets back to the US. At that point, you may file a FOI request, or get an opportunity to voice your side in court. In George's case (again VERY unique) they contacted him directly with this information.

 

The "no readjudication of petitions" provision is the reason some believe in "front-loading" - loading the petition with relationship evidence, which is then approved by the USCIS and sent to the consulate. The consulate cannot then turn around and use that evidence against the beneficiary.

 

The problem with your approach, like I said earlier, will be to find a court which can take a case against the consulate.

[Randy W]

 

 

Randy W and all of you who help me with some answers, thank you.

 

A good New Year, Year of the OX, 2009 to all of you.

 

 

 

Best wishes to you and your fiance, as well.

[georgeandli]

I hear what you're saying, Randy W. I'm not sure I agree with the way you presented certain parts of it All I can say is if I'm the exception and not the rule that NOIDs go through, well the system is more messed up then I thought.

[Randy W]

I hear what you're saying, Randy W. I'm not sure I agree with the way you presented certain parts of it All I can say is if I'm the exception and not the rule that NOIDs go through, well the system is more messed up then I thought.

 

 

Yes - I firmly believe it is.

 

Thanks for your input as to what happened in your case - I'm sure it's been invaluable to more than a few of GUZ's victims.

[georgeandli]

Maybe if I knew how we lucked through the way we did, I'ld agree with the invaluable part

[Stepbrow]

Which brings us back full circle to the point I always try to make. There are provisions in place to rebut/challenge the NOID. When GUZ doesn't provide the info in a "timely" fashion for an appeal that isn't criminal on some level? The petitioner can't rebut a vague not bona fide. The three or four issues they had with Li and I were IMHO easily explained in a rebut letter. Of course the rebut goes to USCIS who has already approved the petition.

 

The visa denial is final - there is no rebuttal, challenge, or appeal. The NOID is handled in the states by the USCIS.

Immigration law delegates the responsibility for issuance or refusal of visas to consular officers overseas. They have the final say on all visa cases. By regulation the U.S. Department of State has authority to review consular decisions, but this authority is limited to the interpretation of law, as contrasted to determinations of facts.

 

. . .

 

An applicant can influence the post to change a prior visa denial only through the presentation of new convincing evidence . . .

Your case was very unique in that appeared (to me at least) that they WANTED you to rebut and have the petition reaffirmed and left the door wide open for you to do so without even the court hearing.

 

For most cases, they apparently simply want to deny the visa. They aren't interested in any court proceedings, and don't provide enough information for the USCIS to do so.

 

For some very rare cases, they supply more information - enough for the USCIS to stage a revocation hearing.

 

Most white slip cases simply fall into a legal black hole - they have a petition approved by the USCIS, but a visa denial from GUZ - with no further action.

Please tell me is the following "paste" valid?

 

¡°6. In adjudicating visa cases involving petitions, posts should bear in mind three important factors: A. the consular officer's role in the petition process is to determine if there is substantial evidence relevant to petition validity not previously considered by DHS, and not to merely readjudicate the petition; B. the memo supporting the petition return must clearly show the factual and concrete reasons for recommending revocation (observations made by the consular officer cannot be conclusive, speculative, equivocal or irrelevant) and; C. consular officers must provide to the applicant in writing as full an explanation as possible of the legal and factual basis for the visa denial and petition return. Post must maintain a copy of the returned petition, other evidence relevant to the case, and a copy of the written notification of the denial.

 

 

 

No readjudication of petitions

 

7. In general, an approved petition will be considered by consular officers as prima facie evidence that the requirements for classification - which are examined in the petition process - have been met. Where Congress has placed responsibility and authority with DHS to determine whether the requirements for status which are examined in the petition process have been met, consular officers do not have the authority to question the approval of petitions without specific evidence, generally unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status (see 9 FAM 41.53, Note 2, 41.54 Note 3.2-2, 41.55 Note 8, 41.56 Note 10, 41.57 Note 6, and 42.43 Note 2) due to fraud, changes in circumstances or clear error on the part of DHS in approving the petition. Conoffs should not assume that a petition should be revoked simply because they would have reached a different decision if adjudicating the petition

 

 

Yes it is valid

1. Per Consular Telegram to all Posts dated 02/04 (from your link)

 

6. In adjudicating visa cases involving petitions, posts should

bear in mind three important factors:

 

2. A. the consular officer''s

role in the petition process is to determine if there is

substantial evidence relevant to petition validity not

previously considered by DHS,

3. B. the memo supporting the petition return for recommending

revocation (observations made by the consular officer cannot be

conclusive, speculative, equivocal or irrelevant)

4. C.

consular officers must provide to the applicant in writing as

full an explanation as possible of the legal and factual basis

for the visa denial and petition return.

 

The "White Slip" on its face is invalid. This is what it says: "The Consulate is unable to issue you an immigrant visa because, according to the section of the Immigration and Nationality Act, Section 5A, you do not fulfill the eligibility requirements for the petitioned visa..."

 

If you will read the INA you will see that there is no "Section 5A." Therefore the Consulate has failed to give proper notice as required by law.

 

Also look at the following:

9FAM 42.42N2 Returning Petitions

9FAM 42.42N2.1 Reason to Believe

9 FAM 42.43 N2.2 This is regarding "Sham Marriages." ie not Bonifide.

[Randy W]

This is as much information as we've gotten on the Section 5A:

 

http://candleforlove.com/forums/index.php?...st&p=323570

[Randy W]

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.

 

There may be a section 5A somewhere - we haven't found it.

 

I believe the "not a bonafide relationship" finding falls under the fraud or misrepresentation category in GUZ-speak.

 

Their usage of the phrase "sham marriage" is pretty well spelled out in 9 FAM 42.43 N2.2.

 

9FAM 42.42N2 refers to Immediate Relative petitions - I-130 - and not the I-129F, which expires every 4 months unless renewed.

[david_dawei]

'Not a bonafide relationship' is a wide net but in GUZs eyes it may still be small compared to the sea of fish they encounter!

 

Sometimes, I think we are too caught up in: Is it about the petitioner or beneficiary... it's about both. A 'relationship' implies at least two.

 

USCIS deals with the eligibility of the petition based on what's submitted and checked; yet they know hardly that much more about the petitioner than the beneficiary based on the papers submitted; some checks do separate what they know.

 

But what is USCIS really doing? Just saying that the petition 'appears at first' (Prima facie) to meet the requirements to apply for immigration benefits... ergo, a USC only petitions to allow a family-based member (ie: alien spouse or fiancee) to apply for a visa. And the bare bones requirements are not hard to meet; ergo, approval is not hard to get.

 

that the beneficiary submits a visa application is simply the whole point of the petition; the seeking of immigration benefits which begins the petition and goes to an issuance of a visa to enter the US.

 

I think that most who are involved in this process tend to want to lean on the issue of whether or not they are truly in love or not; whether the relationship is 'bonafide'. I think what most of us focus on is simply not what GUZ is focusing on. We are trying to present a couple truly in love and wanting to be together: GUZ sees a USC trying to bring someone to the US who previously had no such right (benefit).

 

There can be a couple truly in love and not get immigration benefit to do so; and another not so much in love who gets it. Why is this?

 

It seems to me that it's less about your depth of love than the depth of the relationship. The problem is, most of the relationships will have very little depth (ie: most petitions occur with little courtship). Add to that, that the beneficiary had previously made a decision to find a western husband in most cases and thus has made themselve available for a relationship which would lead to a petition filing. Add to that the implicit risk (to the governemnt) of a K1; a promissory of marriage in exchange for a visa; Seems like the ultimate international barter on some level and I'm not sure why GUZ even approves as many as they do.

 

GUZ is not saying whether we can get married or not; or stay married (if one already is). One can always move to China. The fact that this appears a one-way relationship in most cases (most USCs will not move to china) makes me even more surprised by GUZ's issuance rate.

 

I've heard from two people this past year about GUZ going through some internal changes towards approval and this is clearly shown in the last two years here at CFL with many more denials. It may be that GUZ has decided to just get tougher (or that they were not tough enough); or that the seeking for immigration benefits is uncovered more and more and therefore they apply newer methods to deal with it. It certainly doesn't help when fraud rings are uncovered inside the US.. in the end, everyone who files falls into a scrutiny that may not be warranted.