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Did Guz return your K-1 to CSC? Has it sat there > 6 months?


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Hi. This only pertains to persons whose K-1 petitions were returned by

Guangzhou to California Service Center and who have waited more than 6 months for it to be reviewed.

 

It makes me kind of sad to have to do this, because I am a fan of USCIS.

I practiced before district offices and have enrolled in

service centers all over the United States. I still have a

soft place in my heart for the lovely people at the New Orleans

District Office. They taught me everything I know.

 

I have great respect for the professionalism and training

USCIS officers receive. But I think it's necessary to

seek an extraordinary remedy now with California Service Center.

I think it is time to file requests for expedited

reviews of expired K-1 petitions that have been returned by consulates.

The delays at CSC have become intolerable.

 

I don't hold the Service Center at fault. The problem is that consulates

send back too many meritorious cases. They often do not adjudicate

visa applications under the correct "reasonable person" standard. And

that is partly because DHS has not trained them in what the "reasonable person" standard is.

 

(Yes - DHS - not DOS is responsible for administering the visa process

and for training consular officers in immigration law. See Sections 402 & 428 of the Homeland Security Act of 2002).

 

So if your K-1 has been refused by a consulate and you have beeen waiting for it to be reviewed by California Service Center,

for more than six months, you may want to contact me. marcellislaw@gmail.com . I can't say too much more. But I think expedited review based on two groundsrecognized by the Service, (A) USCIS Error and (B) it is in the Compelling Interest of USCIS to to formulate a clear policy on whether it is going to review expired K-1's or it is not.

 

There has been a lot of confusion on the issue.

 

Back in 2007, the Congressional liaison of CSC was stating for the record that the Center will not review expired K-1's and that the Petitioners are free to file again. I have client emails to that effect.

 

On May 23rd, 2008, in the USCIS Response to the Ombudsman's Recommendation 33, the Acting Director of USCIS, Jonathan Scharfen echoed CSC policy when he wrote:

 

There are several situations where USCIS may not act on a specific returned petition.For instance, K-1 petitions are temporally limited and may expire due to the passage of time.

According to 8CFR 214.2(k)(5), an approved K-1 petition is only valid for four months. Consequently, in a number of cases, the K-1 petition will have already expired by the time DOS returns it to USCIS. Once a petition has expired, it may not be reviewed by USCIS. Furthermore, Petitions for Alien Fiance(e) (Form I-129 F) returned from a Consulate, Embassy, or NVC after approval may not be revoked, as there are no provisions in the law or regulation for revoking the approval of an I-129F."

 

(page 2 USCIS Response to CISOMB Recommendation #33)

 

So to recap where we were:

 

(A) In 2007 there was officially no review of expired K-1 petitions returned by consulates at the CSC.

 

(B) In 2008, the Acting Director of USCIS stated that an expired petition may not be reviewed and that there was no provision in law or regulation to revoke the approval of an I-129F.

 

Still, consulates kept returning hundreds of these expired petitions to CSC, expecting some kind of review and either reaffirmation of the approval or a denial that dated back to the date of filing. Today, some consulates, like HCMC and Guangzhou are now taking the position that they will not approve a re-filed I-129F until they have received a ruling on the one that was previously returned to the Service Center.

 

So hundreds of expired K-1 petitions are in a black hole at CSC. I know of cases that have waited more than two years.

 

In late 2008, CSC appeared to have changed its policy and stated that it will start reviewing expired K-1 petitions. I also have a Congressional Liaison email to that effect. But no time is given. And no one yet, to my knowledge has seen such a review and there was no public announcement of the policy change to my knowledge. And nothing

was said about the huge backlog of K-1's that were still sitting

there.

 

Grounds for expedited review at Service Centers include USCIS error and Compelling Interest of USCIS.

 

It's pretty obvious that there was an error somewhere. Either AD Scharfen was in error in his memorandum when he stated that expired petitions may not be reviewed. Or else the policy of reviewing expired petitions, and consulates sending them back, expecting them to be reviewed, is in error.

 

Somebody here has made a mistake.

 

This is a first step toward litigation. I've spoken to other lawyers from larger firms about this. They agree. But they want to target DHS with the goal of getting DHS to train consular staff in proper adjudication standards. That would be great. But my immediate goal would be to get a decision on whether expired K-1 petitions can be reviewed or not. In 2007-2008*, the answer was an emphatic no. Now it appears to be 'yes'. (*Caveat: Throughout this time, Vermont has been reviewing them.)

 

I think CSC's previous policy and AD Scharfen's memorandum were correct on the issue. There is nothing in the law or regulations that justifies reviewing or revoking (denying to the date of approval), expired K-1 petitions. Thus petitioners who lose at the consular

interview should be free to re-file with more evidence.

 

But nobody has told Department of State. DHS has the authority to lay down the law to DOS - but apparently, that's not going to happen. Therefore, the only route aggrieved petitioners have, is to go to CSC first, and then go to the courts.

I'm planning on doing the expedited review requests pro bono. I'll need to be reimbursed for costs, such as Fed-Ex, translation of interview costs, copying or other costs associated with the filing.

 

If people want to hire me later, for the revocation or a re-file, that can be agreed to later. There is no obligation.

 

But be careful what you wish for. If in fact expedited review is granted, you had better have your rebuttal case prepared and ready if you're going to go it alone! CSC used to give you only 15 days. Now it's up to 30 to respond. (+3 for mail).

 

There is no guarantee a request for expedited review will be granted. But in view of the plain errors here, it is certainly justified.

 

Finally, I'll consider myself a winner if I just get a reasonable time-frame out of CSC. Or better yet, a reinstatement of the position stated in AD Scharfen's memorandum and a return to CSC's former policy.

 

The root problem here, as everyone here knows, is that consulates return too many good cases. They overwhelm the

Service Center staff resources. Thus, delays at Service Centers are insufferable.

 

The reason is partially that DHS has failed to train consulates in proper standards of adjudication. Unfortunately, the law is the law. Either there is a statutory and regulatory basis for reviewing expired K-1 petitions, or there is not. And too many petitioners have waited far too long to find out.

 

Email me at marcellislaw@gmail.com to learn more. Like I said,

except for translation, Fed-Ex and copying costs - if any,

I would do the request for expedited review - and ONLY THAT -

pro bono. .

 

If the outcome were the fast issuance of an NOID letter, you're on your own unless you hire someone to help you. But you'd be free to hire anyone you choose.

Edited by DavidZixuan (see edit history)
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  • 3 weeks later...
Guest Pommey

Hi Mark,

 

You talk about the CSC, but what about the Vermont Service Center??

Is the VSC better or just that you don't have much dealings with VSC??

 

Tom and Ling

He was saying that VSC has been reviewing these cases, while CSC seems to be letting them sit and collect dust.

 

 

 

petitions are returned to the service center that originaly processed them, sorry you dont get a choice.

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Hi Mark,

 

You talk about the CSC, but what about the Vermont Service Center??

Is the VSC better or just that you don't have much dealings with VSC??

 

Tom and Ling

He was saying that VSC has been reviewing these cases, while CSC seems to be letting them sit and collect dust.

 

 

 

petitions are returned to the service center that originaly processed them, sorry you dont get a choice.

 

I have cases in both service centers.

 

VSC throughout all this, has been reviewing expired K-1's. So its policy (I think is incorrect), but it has been consistent.

 

Here is a rough time-frame.

 

2007

 

July 30, 2007 Lincoln & Texas Service Centers stop processing K-1's. All K-1's are filed with CSC and VSC. Previously all four service centers processed K-1's.

 

CSC had not been reviewing expired K-1's. I have 2007 email from CSC Congressional unit advising clients that their petition would not be reviewed - they would be free to file again. CSC also had been sending petitioners 797 notices informing petitioners (a) their petitions had been returned, (b) had expired and (c ) that they could file again.

 

So after the July 30th, 2007 change, only 2 service centers were processing K-1's. One of them reviewed expired K-1's. One of them did not.

 

I saw a problem at that point and wrote an article about it for ILW.COM. Nobody seemed to notice it though.

2008

 

1. May 23, 2008: Acting Director USCIS Jonathan Scharfen essentially agreed with CSC policy. He wrote:

"Once a petition has expired, it may not be reviewed by USCIS. Furthermore, Petitions for Alien Fiance(e) (Form I-129 F) returned from a Consulate, Embassy, or NVC after approval may not be revoked, as there are no provisions in the law or regulation for revoking the approval of an I-129F."

 

Response to USCIS Ombudsman Recommendation 33.

 

2. But VSC kept reviewing & sending NOID letters to petitioners, even after the Scharfen memorandum. CSC kept its former policy of not reviewing or revoking expired K-1's.

 

3. Now the consulates enter the picture.

 

Consulates, one-by-one apparently, began refusing to approve visa applications based on re-filed K-1's. If a consulate had refused a K-1 before and sent it back, it would not approve a subsequently filed one until it learned the results of CSC or VSC's review. I noticed it first in HCMC. Then I saw it in Guz and elsewhere.

 

2009

I have emails from CSC reversing its policy:

 

(1) Expired K-1 petitions will now be reviewed and

 

(2) the backlog currently goes back more than five years.

 

The May 23, 2008 memorandum is still good policy. It has not been rescinded. There have been no public announcements to my knowledge of this change in policy. And the May 23, 2008 memorandum is still a good statement of law and logic.

 

A petition must be valid to be revoked or denied. An expired petition cannot be reviewed, revoked or denied.

 

But that's what's happening. And that's where we are. And that's how we got there.

 

Please feel free to inform your congressional reps. K-1 processing right now is a mess. Give them this summary I've written for you.

 

The problem of course is consulates world-wide are sending back too many petitions that should be approved. DHS* has dropped the ball in administering the visa process.

 

The 2 service centers, (remember previously there were 4 service centers processing K-1's), are overwhelmed by the sheer number of consular returns. CSC, because of its policy turnaround is the most back-logged of all right now.

 

Remedies:

 

1. Expedited review of expired K-1's at Service Centers OR

 

2. A ruling by DHS/USCIS that that expired K-1's can't be reviewed or revoked.

 

3. DHS begins to better administer the visa process, train

consular employees in immigration law. Training them in the

"good and sufficient cause" standard for petition revocation

would be a good place to start.

 

*Remember DHS - not DOS is charged with administering the visa process. Sections 402 & 428 of the Homeland Security Act of 2002.

Edited by ellis-island (see edit history)
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