Principal of Non Consular Reviewability II

[HKG]

A good restatement of the standards governing petition returns by consulate is found in a February 2004 cable R 251642Z FEB 04, excerpted below, sent to all consulates.

 

 

 

¡­ ¡°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. ¡­¡±

 

 

Will the person or persons who deleted this post, please message me and give a reason for it's deletion!

[splinterman]

HKG, just about everyone here, unless they're brand-new, knows about the info you had in your post especially if they spend any time researching or reading up on the visa process in GUZ.

 

There's a separability of issues involved here. One issue is the way things are supposed to work, and the other is the way things actually work in Guangzhou. Simply stated, that's the reality.

 

Now, not trying to put you down or criticize you in any way here, but when my SO get 'whited' and I read these things for the first time, I was shocked, amazed, pissed off, and several other emotions all at the same time. Then, I got over it because I knew that there is a game going on here and unless I played the game according to the rules of the people who are empowered to hand out those visas, I was never going to be united with my lady. Everyone who's been 'boned' by GUZ knows the feeling.

 

There's nothing saying that you can't pursue some avenue of trying to get things changed as to how Guangzhou does business at the same time you're working on your next step, or Plan B, to get your SO to the US. But work on illuminating GUZ's modus operandi as a secondary focus to the thing that is what's really important-helping your lady be successful in getting the pink.

 

Don't let yourself get tunnel vision. Remember, there is a sweet little lady in China who is depending on you to help her have a dream come true. Don't let ruffled feathers over a perverted process keep you from getting what both you and your SO want.

 

Good Luck!

[Guest Rob & Jin]

well said

 

HKG, Focus on what's really important= Your lass

 

 

when you stop doing this the haedache goes away, there are some really smart people here, with the insight you need. no $$$ Bengimins required just be honest with them and you will get through this .

 

Whether we like it or not, regardless of law, GUZ is the "man" no recourse, spend your efforts in preparing a "tight" new petition

 

hang in there talk with the "wise old men"

[HKG]

Rob/Jin, Splinterman, I appreciate your advice, my end quest is to be with my girl, but I also believe in the rule of law but quite possible this is my fault, these subjective type answers, go to China 15 times have 300 pictures, seems to me to just play into the Consulates subjective scheme of things with a no reason non-bonafide denial, I also posted information on the FOIA, this post had its share of the nay sayers, granted under the Bush Administration this act was severely curtailed, but President Obama has opened this way into government accountability once again, this is a tool one of which I'am using to find out there reason for denial. One needs to keep in mind the USA is a nation of laws, no one is above the law as quite a few citizens and politicians have found out. Good luck to all of you, which ever way you decide to pursue your dreams.

[warpedbored]

HKG we all understand your anger and everyone of us who has gotten a blue or white slip had the same anger. Bottom line is GZ does get away with it and has been getting away with it for years. That won't change until congress passes real immigration reform and takes away some of the omnipotence consular officers have today.

[defendo]

I am appreciative and thankful for this website. Everyone is providing very helpful and useful information. I know I am not alone.

 

I agree that the primary focus in all our efforts is to be with our loved ones. But when we play by the rules and are required follow exact, precise procedure and than get shafted by a system that ignores them, it is hard to stomach. So in that regard, I agree with HKG. This is suppose to be a nation of laws, and an effort should be made to expose the routine violation of policy by GUZ. After all the FAM is based on immigration law, so to violate a provision of the FAM is to violate the law. Maybe, just maybe, the new administration will take notice. But I am not holding my breath.

 

I filed a I-130 petition which was approved by USCIS. All law and policy clearly states that approval of a petition is prima facie evidence of a bona fide relationship. The consulate does not have the authority to simply override the USCIS based on speculation or opinion. But it happens all the time and it happened to me.

 

Concrete evidence is required and red flags do not meet evidentiary standards. Besides, most red flags were available to USCIS at the time the petition was approved, so unless the consulate has substantial new evidence to indicate fraud, they should not be denying these kinds of visa applications.

 

I know this does not change the reality, but it is WRONG!

 

So I am preparing to file an I-129F petition to supplement my I-130 and this time I will "front load" it to the hilt. I will throw every document, picture and correspondence I have into the package. I will do the same if I ever get a chance to file a rebuttal. But during the time I have to wait on all this processing, I am going to attempt to expose the injustices that are being routinely committed at GUZ.

 

Peace,

Jay

[IllinoisDave]

All law and policy clearly states that approval of a petition is prima facie evidence of a bona fide relationship.

 

Not exactly true. This common misunderstanding/misreading of the law can lead to a lot of misplaced anger at the process.

 

http://www.ilw.com/articles/2006,0323-ellis.shtm

 

What does that language mean? It means an approved petition is prima facie evidence of eligibility for an immigrant visa, unless a consular officer finds substantial evidence of ineligibility. More importantly, this evidence must have been unknown and unavailable to DHS at the time it approved the petition. That is the nearly the whole game for your client right there, in a few words.

 

A minor, but important, distinction. All DHS has done is determine technical eligibility for a visa. As unfair as it may be, GUZ is the sole arbiter of what a "bona fide" relationship is.

Edited January 31, 2009 by IllinoisDave (see edit history)

[Sebastian]

prima facie is just that - 'on the face', or 'at first observance' or 'at first blush'.

 

Consular Officials then take the next step, to 'look under the face' , so to speak, and has the power to investigate, approve and deny.

 

I really wish there was a different way to handle 'document submittal' for a blue slip, something along the lines of 'same day submittal with 3 day max for review/adjudication', as many times the evidence asked for is already in her hands, in the kitchen sink packet.

 

*sigh*..

[Randy W]

All law and policy clearly states that approval of a petition is prima facie evidence of a bona fide relationship.

 

Not exactly true. This common misunderstanding/misreading of the law can lead to a lot of misplaced anger at the process.

 

http://www.ilw.com/articles/2006,0323-ellis.shtm

 

What does that language mean? It means an approved petition is prima facie evidence of eligibility for an immigrant visa, unless a consular officer finds substantial evidence of ineligibility. More importantly, this evidence must have been unknown and unavailable to DHS at the time it approved the petition. That is the nearly the whole game for your client right there, in a few words.

 

A minor, but important, distinction. All DHS has done is determine technical eligibility for a visa. As unfair as it may be, GUZ is the sole arbiter of what a "bona fide" relationship is.

 

 

. . . and the consular officer ALWAYS has substantial evidence which was "unknown and unavailable to DHS at the time it approved the petition" in the form of the P3/P4 packets and the interview itself.

 

The point is that it is VERY easy to satisfy the letter of the law, regardless of what is read into it.

 

What HKG is doing is similar to arguing with a police officer about what illegal things HE did in the process of pulling you over.

[tsap seui]

I well know the many different feelings one has when their woman/man is denied. Hell, we waited 10 freakin' months in limbo to get a white slip. Think that was a walk in the park? We both would have prefered a white slip at the criminally run interview...why hang us over the fire for 10 months?

 

Yeah, I wrote all the letters to 2 congress people and to ol' Bush hisowndamnself.

 

When I know we were screwed was when I got a letter from a DOS "chief", one Jane Burt-Lynn, in reply to my letter to Bush.

 

The first part was just the typical dumbassed standard reply you get from the government, but right there in the end of the third paragraph of her inane and ignorant letter were 2 sentences that spelled out the bullshit in no uncertain terms......

 

"Section 104(a) of the INA vests the authority to issue, or refuse, visas soley in consular officers abroad. For this reason, the Department of State does not intervene in consulat decisions.

 

I knew when I read that...we were FUC#ED!!!!!! Our VO was nothing more than a criminal at our interview...and our future rested in her lame assed hands?????? Not hardly...that letter came in December of 2007...in January 2008 I started getting rid of my 2006 Alvalanche, 2006 Corvette, sold all my land, put two houses on the market, and put my tricked out 2006 Springer Softail on the market...I had already started preparing to let the VA and SSDI pay for the rest of my life when I came home broken hearted from the lil' rabbit's interview in July 2007.

 

I applaud you guys attempts to get things changed and I sympathise and empathise with all of you. Any person you see who had the short lil' easy interview and a visa could just have easily been denied. Anyone who got a visa the first time could just as easily have been in your shoes with a denial.

 

Keep trying, I would love to eat my words..."a white slip is simply a 2 year wait while you work plan B."

 

Sorry to not have any other encouragement. Please make me eat my words.

 

tsap seui

 

Know what it feels like when a VO unclips you financial records and throws $84,000 of bona fide income on the floor like it was dogshit?

[splinterman]

Rob/Jin, Splinterman, I appreciate your advice, my end quest is to be with my girl, but I also believe in the rule of law but quite possible this is my fault, these subjective type answers, go to China 15 times have 300 pictures, seems to me to just play into the Consulates subjective scheme of things with a no reason non-bonafide denial, I also posted information on the FOIA, this post had its share of the nay sayers, granted under the Bush Administration this act was severely curtailed, but President Obama has opened this way into government accountability once again, this is a tool one of which I'am using to find out there reason for denial. One needs to keep in mind the USA is a nation of laws, no one is above the law as quite a few citizens and politicians have found out. Good luck to all of you, which ever way you decide to pursue your dreams.

 

 

HKG, I'm thinking that we probably have the best opportunity in years with Obama's election to possibly change the way that GUZ does business, and I certainly do agree with you that they should act in accordance with the directives that GUZ has already been given. But I also believe that this change, if it is forthcoming, is not going to happen overnight and certainly not in the time it will take to try another way around Guangzhou's initial denial of your lady's visa.

 

I also have a sneaking suspicion that there is some behind-the-scenes information or reason that we are not permitted to be privy to, as to WHY none of our elected representatives want to undertake a reform of the way that GUZ does business. It may be some sort of political Need-To-Know thing, and we as John Q Public do not have that need to know. So, they're not telling us.

 

Although 'correctness under law' might be on our side, they're not giving up the ship without a fight and we don't have anyone politically willing to be the Flag Bearer for our cause. I smell a big, Norwegian rat behind what's being tolerated in GUZ and the fact that nobody in Congress is willing to do anything about it tells me there is more to the story than what they are letting on. This, my friends, is the TRUE American Way of doing business, and they are giving US the business.

 

I also don't think that 9/11 has that much to do with it, either so I don't accept that as a viable reason for them to be the visa-hardasses that they are being. It's just a convenient excuse and they really don't care if we accept that or not.

 

So I'll tell you HKG, if you want to lead the charge and spearhead the assault on GUZ, I'm with ya! But until my little Chinese Princess is standing right next to me on American soil with her long-term Green Card safely in her little fashion bag, I'm going to be very careful about how many mortar shells I'm lobbing into the enemy's camp, lest they call in an airstrike and wipe my ass out with superior firepower.

 

And THAT is a concept I fully understand...

[defendo]

Not exactly true. This common misunderstanding/misreading of the law can lead to a lot of misplaced anger at the process.

 

9 FAM ¡ì 42.41 N1 -- Establishing Relationship between Petitioner & Alien Beneficiary

The approval of a petition under INA 204 (8 U.S.C. 1154) is considered to establish prima facie entitlement to status. The validity of the relationship between the petitioner and the alien beneficiary, familial or employer and/or employee, is presumed to exist. Unless you have specific, substantial evidence of either misrepresentation in the petition process or have facts unknown to Department of Homeland Security (DHS) at the time of approval, you generally would have no reason to return the petition to DHS.

 

9 FAM 42.43 N1 SUSPENDING ACTION IN PETITION CASES

a. The Department of Homeland Security (DHS) possesses exclusive authority over the approval and denial of immigrant visa petitions (except for 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 N2.2 Cases of Sham Marriages

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.

 

 

The law is what it says. GUZ is disingenuous with the procedure and acts in bad faith. Again, not that this is going to change anything, but "Extensive factual evidence" of a sham marriage is the only basis that allows the consular officer to return an approved petition.

[Randy W]

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).

What are you missing here? All discretion is in the hands of the VO, who would only need to point to this paragraph. I won't disagree with anyone about what constitutes "specific evidence" or a "bona fide relationship", but they (unfortunately) are obligated to deny anyone they feel has a non-bona fide relationship. The reasons come later, and only need to satisfy what they consider as the letter of the law.

[IllinoisDave]

Not exactly true. This common misunderstanding/misreading of the law can lead to a lot of misplaced anger at the process.

 

9 FAM § 42.41 N1 -- Establishing Relationship between Petitioner & Alien Beneficiary

The approval of a petition under INA 204 (8 U.S.C. 1154) is considered to establish prima facie entitlement to status. The validity of the relationship between the petitioner and the alien beneficiary, familial or employer and/or employee, is presumed to exist. Unless you have specific, substantial evidence of either misrepresentation in the petition process or have facts unknown to Department of Homeland Security (DHS) at the time of approval, you generally would have no reason to return the petition to DHS.

 

9 FAM 42.43 N1 SUSPENDING ACTION IN PETITION CASES

a. The Department of Homeland Security (DHS) possesses exclusive authority over the approval and denial of immigrant visa petitions (except for 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 N2.2 Cases of Sham Marriages

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.

 

 

The law is what it says. GUZ is disingenuous with the procedure and acts in bad faith. Again, not that this is going to change anything, but "Extensive factual evidence" of a sham marriage is the only basis that allows the consular officer to return an approved petition.

Yes. With other key words/phrases being "entitlement to status" "presumed" "unless" "facts unknown" "generally" "however" "if" "sufficient facts" "not entitled" "you will return."

 

I'm sympathetic to those who get white/blue and agree that GUZ's decision-making can often be called into question. But as others have pointed out, they have the technicalities of the law on their side.

 

That's not to say that I think anyone should stop beating their head against the front door at GUZ or DHS to try and change things. Just have a big bottle of Tylenol ready.

[splinterman]

Not exactly true. This common misunderstanding/misreading of the law can lead to a lot of misplaced anger at the process.

 

9 FAM ¡ì 42.41 N1 -- Establishing Relationship between Petitioner & Alien Beneficiary

The approval of a petition under INA 204 (8 U.S.C. 1154) is considered to establish prima facie entitlement to status. The validity of the relationship between the petitioner and the alien beneficiary, familial or employer and/or employee, is presumed to exist. Unless you have specific, substantial evidence of either misrepresentation in the petition process or have facts unknown to Department of Homeland Security (DHS) at the time of approval, you generally would have no reason to return the petition to DHS.

 

9 FAM 42.43 N1 SUSPENDING ACTION IN PETITION CASES

a. The Department of Homeland Security (DHS) possesses exclusive authority over the approval and denial of immigrant visa petitions (except for 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 N2.2 Cases of Sham Marriages

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.

 

 

The law is what it says. GUZ is disingenuous with the procedure and acts in bad faith. Again, not that this is going to change anything, but "Extensive factual evidence" of a sham marriage is the only basis that allows the consular officer to return an approved petition.

 

 

Wrong!

 

Pay attention to the specific language that is presented in the quotation of the passages you've presented here.

 

Any attorney, or anyone with any experience in contract law will tell you that when words and/or phrases like 'generally', 'have reason to believe', 'reasonable person' are used, it gives the person or agency using that language the 'out' they are looking for. It changes the standard to that of a subjective standard.

 

What that translates into is that it allows the VOs to deny and return petitions based on THEIR beliefs, suspicions, whims, etc. It makes no matter to them that possibly sometime in the future any case they've denied is reaffirmed and returned to GUZ because by then they have long obtained what they were seeking through their denial-making the petitioner and beneficiary wait for another year or two and demonstrate their commitment by applying again. Actions speak louder than words.

 

Any competent bureaucrat, whenever they read a law or regulation, the first thing they look at is the exact language the law is written in. They look for words like may, shall, must, will, could, etc. to determine just how widely they can circumnavigate the intent of the regulation and just how much 'breathing space' they have in applying it.

 

The wording in these laws and regulations must first be overhauled so as to leave no possibility for subjective reasoning or personal interpretation. Next, enforcement through individual accountability must be achieved which has the effect of demonstrating by example that deviation from the exact intent of the regulation by any agent will not be allowed or tolerated. The standard must be set.

 

Until these things happen, GUZ is free to do what they've been doing all along. Transparency of the process and accountability for decisions is what we need before business, as GUZ knows it, can be changed.