There's A 'U' In Support

[Randy W]

 

First of all, it is absurd to claim that the U.S. Consulates do not answer to the U.S. Courts. Read Bustamante v MuKasey. The courts reaffirmed exceptions to the non-reviewability doctrine in instances where the visa application process has denied an Amercian Citizen due process as guaranteed by the U.S. Constitution.

 

 

 

It's completely unclear what you're reading into that. The decision seems to make exactly the opposite point of yours.

 

The 'door' that was opened is simply a US citizen's right to file a case where he/she feels his constitutional rights have been violated.

 

We hold that] a U.S citizen raising a constitutional challenge to the denial of a visa is entitled to a limited judicial inquiry regarding the reason for the decision. As long as the reason given is facially legitimate and bona fide the decision will not be disturbed. . . . Here, [the American citizen spouse] asserts that she has a protected liberty interest in her marriage that gives rise to a right to constitutionally adequate procedures in the adjudication of her husband¡¯s visa application. The Supreme Court has deemed ¡°straightforward¡± the notion that ¡°[t]he Due Process Clause provides that certain substantive rights ¡ª life, liberty, and property ¡ª cannot be deprived except pursuant to constitutionally adequate procedures.¡± Freedom of personal choice in matters of marriage and family life is, of course, one of the liberties protected by the Due Process Clause. See Cleveland Bd of Educ. v. LaFleur, 414 632, 639-640 (1974).

 

The Bustamantes lost because the ground of visa ineligibility involved a very low threshold. All that was necessary was for the consular officer to have a "reason to believe" that Jose was a drug trafficker.

Edited April 12, 2009 by Randy W (see edit history)

[chengdu4me]

And, maybe I am seeing this through 55 years of pessimism concerning the government, but, IF the courts decided to "disturb" the ruling of GUZ, then you would still have to start over because your petition has expired...and don't ya think that you would be on their "when hell freezes over" list? They would just find another reason to deny when the paperwork hit their desk. That is, if you had any money left to pay to refile.

 

Nope, idealism and belief in the "rule of law" and "justice" is noble and good, but it is way too naive to ever survive in the real world.

[splinterman]

Lee, let me ask this...A petition is denied at GUZ, then it is shipped back to the Service Center for denial/rebuttal/whatever. Since the petition is only good for four months, a reasonable person would conclude that it was actually within the active time frame at the time of the interview. However, in the time it took for the petition to get back to the Service Center, it expired. OK...now...it is plainly known that the petition only has a life of 4 months. The government, at its whim, may extend that life. But if it chooses not to, so what? It expired. Nothing to inform the petitioner about. Its over. Nothing to do but refile. Since this is in the rules, no one has any legal complaint because you knew the rules going in and you agreed to them by signing/filing the petition. This, in a nutshell is what Marc Ellis, if I read his speal correctly is what he is going after. He wants a rule changed that is a known rule. It is in black and white and it is accepted/approved by the governing body of the USCIS...So, where is his complaint? USCIS is well within their jurisdiction to look at a returned petition and see that is has expired and just throw it in the trash. Seems like this is exactly what they are doing.

 

Let me also say this. I am just playing devil advocate. I truly do feel everyones pain in this process. I went through the wait, but canceled due to other reasons before the finish line. But that doesn't make me any less sympathetic to your cause. Perhaps when dealing with the government, I have just learned it is better not to if at all possible. In any and all cases, I will find an alternate route.

 

 

This quote comes from Marc Ellis's article "Clash of The Titan Bureaucracies, The Sequel." :

 

9 FAM 40.63 N10 Miscellaneous

9 FAM 40.63 N10.1 Misrepresentation in Family Relationship Petitions

(TL:VISA-313; 08-27-2001)

Pursuant to 8 CFR 205, invalidation of a labor certification for fraud in accordance with the instructions of INS or the Department of State auto-matically revokes an employment-based immigrant visa petition. On the other hand, INS retains exclusive authority to disapprove or revoke family-relationship immigrant visa petitions. Thus, a misrepresentation with respect to entitlement to status under a family-relationship petition, e.g., document fraud, sham marriage or divorce, etc., cannot be deemed material as long as the petition is valid. Upon discovery of a misrepresentation, the consular officer must return the petition to the INS office having jurisdic-tion over the petitioner's place of residence [see 22 CFR 42.43]. If the petition is revoked, the materiality of the misrepresentation is established.

The way DOS interprets this language is that any application for an immigrant or K visa which is later denied by an interviewing officer not satisfied by the evidence of the relationship, is a "¡­misrepresentation with respect to entitlement," and this triggers the entry of a preliminary 212(a)(6)©[8] fraud marker in the applicant's file. If the supervisor concurs in the denial, the petition file is returned to USCIS with the recommendation that its approval be revoked.

 

Let that sink in for a minute. The mere act of submitting a visa application at a consulate that is later denied because an officer is not satisfied with the evidence - is a "misrepresentation with respect to entitlement". And a preliminary 212(a)(6)©(i) (aka a "P6C" marker), finding of material misrepresentation is noted in the visa applicant's file.

 

If USCIS revokes or denies the original approval, this "misrepresentation with respect to entitlement" becomes a hard 212(a)(6)©(i) [9] material misrepresentation finding, making the beneficiary/applicant inadmissible to the United States for life - unless the petitioner obtains a 212(i) [10] waiver for the beneficiary.

 

Lawyers and USCIS officers may be saying, "That can't be right. That's nutty."

No. It's not nutty. It's how DOS interprets 9 FAM 40.63 N10.1.

 

 

So as you can see, if the visa application is denied and subsequently returned, for whatever the reason the VO decides, now the beneficiary gets tagged with having 'misrepresented' something. And your position as the Petitioner is likewise affected due to your association with the Beneficiary in the visa process. This is an issue of the entitlement to Due Process that the Petitioner is guaranteed. You have the right to know what you're being accused of, not when the government thinks it is time to tell you, but at the time you get the label.

 

Also, remember that the consulate officer is required by law to provide the factual and specific reasons for the denial at the time of the denial. They aren't doing that and if they would, it would make it much easier to address their issues of concern. But that is NOT what GUZ wants to have happen. They want to hold all the cards and they are resisting by any means possible having to disclose their reasons because they KNOW their reasons are not compliant with the ways the INA, the FAM and the CFR are written and interpreted by the government agencies who wrote them.

 

I don't think Marc Ellis's first intention is to have a rule changed. I believe he said what he is after-to get a ruling on a particular point of law that whether or not the CSC is required to review returned petitions, and to do so in a timely manner. Getting a rule changed would be at some point after a ruling.

 

There are many points of law that GUZ, the DOS, DHS and the USCIS are not in compliance with, let alone all of the Policy Letters, Directives, Cables etc. governing how they are to handle and process visa applications. All anyone here wants is for them to NOT choose which ones they will be responsive to, or in their own way, but to follow them all. It's not an issue of interpretation, because these written vehicles are clearly specific.

 

It's actually following them they way they are written that is causing the problems.

 

Splinterman

[Randy W]

. . .

 

I don't think Marc Ellis's first intention is to have a rule changed. I believe he said what he is after-to get a ruling on a particular point of law that whether or not the CSC is required to review returned petitions, and to do so in a timely manner. Getting a rule changed would be at some point after a ruling.

 

. . .

 

It's actually following them they way they are written that is causing the problems.

 

Splinterman

 

 

His intent is to be able to have access to what's in the files - and also to prevent the possibility of being blind-sided at some point in the future.

 

The USCIS has pretty much found that taking action on the returned petitions opens the door to legal action on behalf of the USC. This issues is exascerbated (for the USCIS) by the fact that the consulate is unlikely to have included enough information to warrant a finding of fraud or misrepresentation.

 

The consulate is required by policy to return the petition with a reccommendation to revoke, whether the facts really support this or not.

 

The USCIS is more inclined these days to let sleeping dogs lie- Their own interests in having approved the petition are different from those of the consulate in having denied the visa application.

Edited April 12, 2009 by Randy W (see edit history)

[chengdu4me]

This quote comes from Marc Ellis's article "Clash of The Titan Bureaucracies, The Sequel." :

 

9 FAM 40.63 N10 Miscellaneous

9 FAM 40.63 N10.1 Misrepresentation in Family Relationship Petitions

(TL:VISA-313; 08-27-2001)

Pursuant to 8 CFR 205, invalidation of a labor certification for fraud in accordance with the instructions of INS or the Department of State auto-matically revokes an employment-based immigrant visa petition. On the other hand, INS retains exclusive authority to disapprove or revoke family-relationship immigrant visa petitions. Thus, a misrepresentation with respect to entitlement to status under a family-relationship petition, e.g., document fraud, sham marriage or divorce, etc., cannot be deemed material as long as the petition is valid. Upon discovery of a misrepresentation, the consular officer must return the petition to the INS office having jurisdic-tion over the petitioner's place of residence [see 22 CFR 42.43]. If the petition is revoked, the materiality of the misrepresentation is established.

The way DOS interprets this language is that any application for an immigrant or K visa which is later denied by an interviewing officer not satisfied by the evidence of the relationship, is a "…misrepresentation with respect to entitlement," and this triggers the entry of a preliminary 212(a)(6)©[8] fraud marker in the applicant's file. If the supervisor concurs in the denial, the petition file is returned to USCIS with the recommendation that its approval be revoked.

 

Let that sink in for a minute. The mere act of submitting a visa application at a consulate that is later denied because an officer is not satisfied with the evidence - is a "misrepresentation with respect to entitlement". And a preliminary 212(a)(6)©(i) (aka a "P6C" marker), finding of material misrepresentation is noted in the visa applicant's file.

 

If USCIS revokes or denies the original approval, this "misrepresentation with respect to entitlement" becomes a hard 212(a)(6)©(i) [9] material misrepresentation finding, making the beneficiary/applicant inadmissible to the United States for life - unless the petitioner obtains a 212(i) [10] waiver for the beneficiary.

 

Lawyers and USCIS officers may be saying, "That can't be right. That's nutty."

No. It's not nutty. It's how DOS interprets 9 FAM 40.63 N10.1.

 

 

So as you can see, if the visa application is denied and subsequently returned, for whatever the reason the VO decides, now the beneficiary gets tagged with having 'misrepresented' something. And your position as the Petitioner is likewise affected due to your association with the Beneficiary in the visa process. This is an issue of the entitlement to Due Process that the Petitioner is guaranteed. You have the right to know what you're being accused of, not when the government thinks it is time to tell you, but at the time you get the label.

 

Also, remember that the consulate officer is required by law to provide the factual and specific reasons for the denial at the time of the denial. They aren't doing that and if they would, it would make it much easier to address their issues of concern. But that is NOT what GUZ wants to have happen. They want to hold all the cards and they are resisting by any means possible having to disclose their reasons because they KNOW their reasons are not compliant with the ways the INA, the FAM and the CFR are written and interpreted by the government agencies who wrote them.

 

I don't think Marc Ellis's first intention is to have a rule changed. I believe he said what he is after-to get a ruling on a particular point of law that whether or not the CSC is required to review returned petitions, and to do so in a timely manner. Getting a rule changed would be at some point after a ruling.

 

There are many points of law that GUZ, the DOS, DHS and the USCIS are not in compliance with, let alone all of the Policy Letters, Directives, Cables etc. governing how they are to handle and process visa applications. All anyone here wants is for them to NOT choose which ones they will be responsive to, or in their own way, but to follow them all. It's not an issue of interpretation, because these written vehicles are clearly specific.

 

It's actually following them they way they are written that is causing the problems.

 

Splinterman

 

 

Ok...so, lets say he is sucessful in getting USCIS to review petitions in a timely manner. That only applies to active petitions. Petitions that have expired are no longer subject to review. It will just take a bit longer for your petition to be received by the USCIS from GUZ. There, problem solved. It arrived expired...No further action necessary.

 

Yea, the old misrepresentation argument again. Ok..here we go again...this is an administrative finding. You do have the right to petition for a waiver, so your right to answer the finding is fulfilled. They don't call it a crime and you are never indicted or charged, so there is no trial to get to fight over.

 

I tell you what...you go find an attorney that will take a case based on your arguments and will take it all the way to the Supreme Court if necessary. You ask him what it will cost for you to have your "justice". You find out what it will cost to subpoena everyone, travel expenses for the witnesses, do the research, go to trial after trial, court after court, airfare for him and his staff, court costs, etc, etc, etc...and then you come back and let us know if you are going to get your "justice". Your arguments may have just a bit of validity, but very little, but the bottom line is this..you can't afford to fund the battle. So, your arguments are moot.

Edited April 12, 2009 by chengdu4me (see edit history)

[defendo]

This quote comes from Marc Ellis's article "Clash of The Titan Bureaucracies, The Sequel." :

 

9 FAM 40.63 N10 Miscellaneous

9 FAM 40.63 N10.1 Misrepresentation in Family Relationship Petitions

(TL:VISA-313; 08-27-2001)

Pursuant to 8 CFR 205, invalidation of a labor certification for fraud in accordance with the instructions of INS or the Department of State auto-matically revokes an employment-based immigrant visa petition. On the other hand, INS retains exclusive authority to disapprove or revoke family-relationship immigrant visa petitions. Thus, a misrepresentation with respect to entitlement to status under a family-relationship petition, e.g., document fraud, sham marriage or divorce, etc., cannot be deemed material as long as the petition is valid. Upon discovery of a misrepresentation, the consular officer must return the petition to the INS office having jurisdic-tion over the petitioner's place of residence [see 22 CFR 42.43]. If the petition is revoked, the materiality of the misrepresentation is established.

The way DOS interprets this language is that any application for an immigrant or K visa which is later denied by an interviewing officer not satisfied by the evidence of the relationship, is a "¡­misrepresentation with respect to entitlement," and this triggers the entry of a preliminary 212(a)(6)8] fraud marker in the applicant's file. If the supervisor concurs in the denial, the petition file is returned to USCIS with the recommendation that its approval be revoked.

 

Let that sink in for a minute. The mere act of submitting a visa application at a consulate that is later denied because an officer is not satisfied with the evidence - is a "misrepresentation with respect to entitlement". And a preliminary 212(a)(6)(i) (aka a "P6C" marker), finding of material misrepresentation is noted in the visa applicant's file.

 

If USCIS revokes or denies the original approval, this "misrepresentation with respect to entitlement" becomes a hard 212(a)(6)(i) [9] material misrepresentation finding, making the beneficiary/applicant inadmissible to the United States for life - unless the petitioner obtains a 212(i) [10] waiver for the beneficiary.

 

Lawyers and USCIS officers may be saying, "That can't be right. That's nutty."

No. It's not nutty. It's how DOS interprets 9 FAM 40.63 N10.1.

 

 

So as you can see, if the visa application is denied and subsequently returned, for whatever the reason the VO decides, now the beneficiary gets tagged with having 'misrepresented' something. And your position as the Petitioner is likewise affected due to your association with the Beneficiary in the visa process. This is an issue of the entitlement to Due Process that the Petitioner is guaranteed. You have the right to know what you're being accused of, not when the government thinks it is time to tell you, but at the time you get the label.

 

Also, remember that the consulate officer is required by law to provide the factual and specific reasons for the denial at the time of the denial. They aren't doing that and if they would, it would make it much easier to address their issues of concern. But that is NOT what GUZ wants to have happen. They want to hold all the cards and they are resisting by any means possible having to disclose their reasons because they KNOW their reasons are not compliant with the ways the INA, the FAM and the CFR are written and interpreted by the government agencies who wrote them.

 

I don't think Marc Ellis's first intention is to have a rule changed. I believe he said what he is after-to get a ruling on a particular point of law that whether or not the CSC is required to review returned petitions, and to do so in a timely manner. Getting a rule changed would be at some point after a ruling.

 

There are many points of law that GUZ, the DOS, DHS and the USCIS are not in compliance with, let alone all of the Policy Letters, Directives, Cables etc. governing how they are to handle and process visa applications. All anyone here wants is for them to NOT choose which ones they will be responsive to, or in their own way, but to follow them all. It's not an issue of interpretation, because these written vehicles are clearly specific.

 

It's actually following them they way they are written that is causing the problems.

 

Splinterman

 

 

Ok...so, lets say he is sucessful in getting USCIS to review petitions in a timely manner. That only applies to active petitions. Petitions that have expired are no longer subject to review. It will just take a bit longer for your petition to be received by the USCIS from GUZ. There, problem solved. It arrived expired...No further action necessary.

 

Yea, the old misrepresentation argument again. Ok..here we go again...this is an administrative finding. You do have the right to petition for a waiver, so your right to answer the finding is fulfilled. They don't call it a crime and you are never indicted or charged, so there is no trial to get to fight over.

 

I tell you what...you go find an attorney that will take a case based on your arguments and will take it all the way to the Supreme Court if necessary. You ask him what it will cost for you to have your "justice". You find out what it will cost to subpoena everyone, travel expenses for the witnesses, do the research, go to trial after trial, court after court, airfare for him and his staff, court costs, etc, etc, etc...and then you come back and let us know if you are going to get your "justice". Your arguments may have just a bit of validity, but very little, but the bottom line is this..you can't afford to fund the battle. So, your arguments are moot.

 

You are obviously very angry and bitter. I am sorry that the actions of GUZ has caused you so much misery. But you are not alone. I agree with your assessment of a corrupt government that has all the chips stacked in their favor. The ordinary citizen certainly does not have the resources to fight back.

 

What the law says and how it is administered in the real world are two different realities. But nothing is lost in arguing the correct application of the law. It is a crime to misapply the law and thier are sanctions that could be imposed. I likelihood of such action is practically nonexistent.

 

You stated in your original reply to Splinterman that "the DOS foreign consulates do not answer to the US Courts" The point of the Bustamante decision is that the court recognizes that consular officers are liable for decisions if the decisions deprive an American citizen of his due process rights. It is irrelevant whether Bustamante won or lost.

 

I for one believe that it is useless to initiate a legal proceeding unless it is a class action that shows a pattern of misconduct. So you and I share the same point of view.

 

I would argue that it is misconduct to wrongly return a petition that does not have a valid basis for the return and that due process is required, even in administrative hearings. There is such a thing as the Federal Administrative Procedures Act. I never asserted that the government follows the procedures. But once again, I have nothing to lose by arguing what the law says. I am stuck in this situation until I either move to China or there is movement on my case. Chances are that, just like you, I will be living the rest of my life in China too.

 

You are preaching to the choir!

 

It is certain that America would still be under the control of England if our founding fathers had your attitude and ceased to resist. One thing is certain, no change will occur without effort.

 

I have written many letters to the committees and subcommittees. Have you? Whether any letters will be effective remains to be seen, but at least I have made the effort. Obviously only a few letters will be ignored. That is why a collective effort is required.

 

Your arguments regarding testimony is wrong. Video testimony has been permitted in many court cases. I am not saying that it will be permitted in a particular case, but your tendency to generalize each situation is not accurate.

 

Yes, the reason for a denial must be "facially legitmate and bona fide". Which means there has to be a factual basis. Opinion, conjuncture and speculation do not fulfill this requirement.

 

That doesn't mean the government has to follow the rules. Because the government routinely makes up its own rules as it goes. The situation at Guantanamo is a good example.

 

But your hypothetical examples are invalid. They are simply predictions based on your own jaded perceptions.

 

I am certainly not naive and I have not expectations. But that does not mean I will simply surrender without a fight. I will use whatever resources I can within my means and whatever arguments that might have some impact. But when it is all said an done, I will probably be living the good life in Chongqing.

[LeeFisher3]

Lee, let me ask this...A petition is denied at GUZ, then it is shipped back to the Service Center for denial/rebuttal/whatever. Since the petition is only good for four months, a reasonable person would conclude that it was actually within the active time frame at the time of the interview. However, in the time it took for the petition to get back to the Service Center, it expired. OK...now...it is plainly known that the petition only has a life of 4 months. The government, at its whim, may extend that life. But if it chooses not to, so what? It expired. Nothing to inform the petitioner about. Its over. Nothing to do but refile. Since this is in the rules, no one has any legal complaint because you knew the rules going in and you agreed to them by signing/filing the petition. This, in a nutshell is what Marc Ellis, if I read his speal correctly is what he is going after. He wants a rule changed that is a known rule. It is in black and white and it is accepted/approved by the governing body of the USCIS...So, where is his complaint? USCIS is well within their jurisdiction to look at a returned petition and see that is has expired and just throw it in the trash. Seems like this is exactly what they are doing.

 

Let me also say this. I am just playing devil advocate. I truly do feel everyones pain in this process. I went through the wait, but canceled due to other reasons before the finish line. But that doesn't make me any less sympathetic to your cause. Perhaps when dealing with the government, I have just learned it is better not to if at all possible. In any and all cases, I will find an alternate route.

The issue is that NOID's are returned and GUZ left them sit long enough without extending the petition so now it's returned, but the case is flagged awaiting information on the NOID, which was never sent to the petitioner. CSC doesn't know what to do because DOS will not process the new case because they are waiting for USCIS to respond to their recommendation.

 

So these second petitions just get stacked up and wait because they don't know what to do with them, they don't get approved or denied, they just sit. Currently VSC reviews and approves these petitions to be sent back to GUZ for the next round, CSC won't do anything because of a Catch-22 so anyone re-filing just gets stuck in limbo.

 

The objective is to get CSC to process these type of cases under the same rules the VSC does, until CSC does something with these cases the petitioner and beneficiary are on hold with no recourse.

[HKG]

9 FAM 40.63 N10.1 Misrepresentation in Family Relationship Petitions.

 

If USCIS just lets the denial collect dust and does not send the petitioner

a letter to rebuke the Consulate, does this ban kick in by default? , How would that apply to the "famous" plan B, If you filed a I130 after marriage in China? Nasty business these non-bonafides.

[splinterman]

This quote comes from Marc Ellis's article "Clash of The Titan Bureaucracies, The Sequel." :

 

9 FAM 40.63 N10 Miscellaneous

9 FAM 40.63 N10.1 Misrepresentation in Family Relationship Petitions

(TL:VISA-313; 08-27-2001)

Pursuant to 8 CFR 205, invalidation of a labor certification for fraud in accordance with the instructions of INS or the Department of State auto-matically revokes an employment-based immigrant visa petition. On the other hand, INS retains exclusive authority to disapprove or revoke family-relationship immigrant visa petitions. Thus, a misrepresentation with respect to entitlement to status under a family-relationship petition, e.g., document fraud, sham marriage or divorce, etc., cannot be deemed material as long as the petition is valid. Upon discovery of a misrepresentation, the consular officer must return the petition to the INS office having jurisdic-tion over the petitioner's place of residence [see 22 CFR 42.43]. If the petition is revoked, the materiality of the misrepresentation is established.

The way DOS interprets this language is that any application for an immigrant or K visa which is later denied by an interviewing officer not satisfied by the evidence of the relationship, is a "¡­misrepresentation with respect to entitlement," and this triggers the entry of a preliminary 212(a)(6)©[8] fraud marker in the applicant's file. If the supervisor concurs in the denial, the petition file is returned to USCIS with the recommendation that its approval be revoked.

 

Let that sink in for a minute. The mere act of submitting a visa application at a consulate that is later denied because an officer is not satisfied with the evidence - is a "misrepresentation with respect to entitlement". And a preliminary 212(a)(6)?i) (aka a "P6C" marker), finding of material misrepresentation is noted in the visa applicant's file.

 

If USCIS revokes or denies the original approval, this "misrepresentation with respect to entitlement" becomes a hard 212(a)(6)?i) [9] material misrepresentation finding, making the beneficiary/applicant inadmissible to the United States for life - unless the petitioner obtains a 212(i) [10] waiver for the beneficiary.

 

Lawyers and USCIS officers may be saying, "That can't be right. That's nutty."

No. It's not nutty. It's how DOS interprets 9 FAM 40.63 N10.1.

 

 

So as you can see, if the visa application is denied and subsequently returned, for whatever the reason the VO decides, now the beneficiary gets tagged with having 'misrepresented' something. And your position as the Petitioner is likewise affected due to your association with the Beneficiary in the visa process. This is an issue of the entitlement to Due Process that the Petitioner is guaranteed. You have the right to know what you're being accused of, not when the government thinks it is time to tell you, but at the time you get the label.

 

Also, remember that the consulate officer is required by law to provide the factual and specific reasons for the denial at the time of the denial. They aren't doing that and if they would, it would make it much easier to address their issues of concern. But that is NOT what GUZ wants to have happen. They want to hold all the cards and they are resisting by any means possible having to disclose their reasons because they KNOW their reasons are not compliant with the ways the INA, the FAM and the CFR are written and interpreted by the government agencies who wrote them.

 

I don't think Marc Ellis's first intention is to have a rule changed. I believe he said what he is after-to get a ruling on a particular point of law that whether or not the CSC is required to review returned petitions, and to do so in a timely manner. Getting a rule changed would be at some point after a ruling.

 

There are many points of law that GUZ, the DOS, DHS and the USCIS are not in compliance with, let alone all of the Policy Letters, Directives, Cables etc. governing how they are to handle and process visa applications. All anyone here wants is for them to NOT choose which ones they will be responsive to, or in their own way, but to follow them all. It's not an issue of interpretation, because these written vehicles are clearly specific.

 

It's actually following them they way they are written that is causing the problems.

 

Splinterman

 

 

Ok...so, lets say he is sucessful in getting USCIS to review petitions in a timely manner. That only applies to active petitions. Petitions that have expired are no longer subject to review. It will just take a bit longer for your petition to be received by the USCIS from GUZ. There, problem solved. It arrived expired...No further action necessary.

 

Yea, the old misrepresentation argument again. Ok..here we go again...this is an administrative finding. You do have the right to petition for a waiver, so your right to answer the finding is fulfilled. They don't call it a crime and you are never indicted or charged, so there is no trial to get to fight over.

 

I tell you what...you go find an attorney that will take a case based on your arguments and will take it all the way to the Supreme Court if necessary. You ask him what it will cost for you to have your "justice". You find out what it will cost to subpoena everyone, travel expenses for the witnesses, do the research, go to trial after trial, court after court, airfare for him and his staff, court costs, etc, etc, etc...and then you come back and let us know if you are going to get your "justice". Your arguments may have just a bit of validity, but very little, but the bottom line is this..you can't afford to fund the battle. So, your arguments are moot.

 

 

Chengdu4me, I don't know why you're so bitter or adverse to trying to get some obvious wrongs turned into rights that have affected so many people. And really, just to state that they affect so many people is really an understatement, because we're talking about how these injustices affect people's LIVES!

 

Nothing worth having comes easy. Can we agree on that?

 

When I posted the first message in this thread the purpose was to try and get some more support for what I have seen since becoming a CFL member (albeit not that long ago...) as the very first attempts to get some injustices corrected that have at least a bona fide chance of succeeding (Oh DAMN! There's that term again-see how it comes back to haunt people?)

 

And, this chance is being undertaken by legal professionals-people who understand the logic of what arguments to make and whom to make them to, as well as the language that should be used. Marc Ellis and John Roth are not RUBES and I have faith not only in their abilities but also in their reasons for the bites they want to take out of the government's ass.

 

Let anyone argue with this: this CRAP that we on this website have been spoonfed by our government has gone on long enough! There, can anyone argue with THAT?

 

What we are seeing here through Marc Ellis and John Roth might turn out to be a historic moment when it comes to Family-Based Immigration Reform. We need people to get in on the ground floor of this movement to give the effort some momentum.

 

What we do not need right now are naysayers, fence-sitters or prophets of doom. America was once only disorganized colonies fighting against the most powerful country in the world, and all of us can thank God that there were people who recognized that individual effort is required in order to result in the collective good.

 

That is what I am asking the good people of CFL to do now-provide a little bit of individual effort in a show of support for Roth and Ellis that has the potential to result in change that will benefit everybody.

 

If you don't stand up and be counted on this and things go on the same way they've been happening, does anyone have any doubts that things will change for the worse? Don't you believe that the lack of opposition-for whatever reasons-to improper and illegal government practices will result in them getting a feeling of empowerment?

 

So I'm asking everyone here on this site: what will it take to have had enough so that you want to try and change things? Right now you don't have to go it alone because there are other people willing to stand beside you to try and force a change. So join the ranks.

 

There have always been those people standing way in the back with tiny voices saying 'It won't work'.

 

Splinterman

[Randy W]

9 FAM 40.63 N10.1 Misrepresentation in Family Relationship Petitions.

 

If USCIS just lets the denial collect dust and does not send the petitioner

a letter to rebuke the Consulate, does this ban kick in by default? , How would that apply to the "famous" plan B, If you filed a I130 after marriage in China? Nasty business these non-bonafides.

 

9 FAM 40.63 N10.1 Misrepresentation in Family Relationship Petitions.

 

USCIS retains exclusive authority to disapprove or revoke family-relationship IV petitions. Thus, a misrepresentation with

respect to entitlement to status under a family-relationship petition, e.g., document fraud, sham marriage or divorce, etc., cannot be deemed material as long as the petition is valid. Upon discovery of a misrepresentation, you must return the petition to the appropriate USCIS office. If the petition is revoked, the materiality of the misrepresentation is established.

 

USCIS generally either takes no action, or re-affirms the petition.

Edited April 12, 2009 by Randy W (see edit history)

[chengdu4me]

You guys think I'm bitter. I'm not the slightest bit bitter when it comes to this subject. As I posted before and obviously you didn't bother to read, so I'll say it again.

 

Let me also say this. I am just playing devil advocate. I truly do feel everyones pain in this process. I went through the wait, but canceled due to other reasons before the finish line. But that doesn't make me any less sympathetic to your cause. Perhaps when dealing with the government, I have just learned it is better not to if at all possible. In any and all cases, I will find an alternate route.

 

I learned a long time ago to pick my battles wisely. No matter how noble the cause or how great the injustice, if your chances of winning are so slim that it will cause you more harm than good, then it isn't worth fighting. If your win will just force the opposition to be more creative and even harder to defeat later, it isn't worth fighting. Find another way!

 

I have spoken to my Congresswoman, in person. You know what she did? She laughed. Not at me, but at the system. Her reply was, "Oh gosh! That is a can of worms that I have no clue how to open!. There is nothing I'll be able to do about this and even though I have been in Washington for 12 years, I wouldn't know who would". Now, if that isn't warning enough to make a rational person sidestep the process, I don't know what is. She is a good woman. She is just an average Mom, wife and mother that also happens to be a lawyer and she ran because her boss, her predecessor died and she was asked to fill his shoes.

 

I filed the I-129F for a K-1. It went to VSC, then to NVC. I canceled it before it left for GUZ. The lady and I ended our relationship due to family problems on her side that were insurmountable dealing with custody issues of her daughter. The more I spent in China and the more I looked at where American is headed, I decided that living in China was a better option. I don't like this process. I don't like the one-sided rules. I don't like the time it takes to get it done. I don't like the total lack of respect from GUZ as I read these threads and stories. But, as I said, I have no dog in this fight. I have no story to pass on to these attorneys. I have only offered what I have as a devils advocate, throwing out negative argument one after another just as an example of what you could be up against. I went to law school. I graduated. I know how to interpret law. I know how to pick apart an argument. A good analogy I learned is that an argument is like a piece of fabric. You don't have to take possession of the fabric to destroy it. You only need to get your hands on one single thread. The problem I see with the Immigration laws is that they are so loosely woven that even if you pull one entire thread out, you won't see any difference in the fabric.

 

I'm also saying that the demographics of people wanting to tumble the USCIS/DOS merry-go-round is so small that if, in unision, everyone grabbed a different thread and started pulling, it still wouldn't make any difference. In the grand scheme of things, we are so small a group that at our loudest, we can't even be heard. I dare say that just about any other special interest group, and we are a special interest group; is going to be bigger than we are, so any voice we have is nothing more than a barely perceptible whisper in the throng of screams. I'm afraid that just doesn't garner the attention we would all like it to. This is my realistic opinion of the subject. If it doesn't conform to your opinion, I can;t help that. I wish you the best of luck and if there is anything I can do that would make a real difference, I would be happy to help.

[splinterman]

You guys think I'm bitter. I'm not the slightest bit bitter when it comes to this subject. As I posted before and obviously you didn't bother to read, so I'll say it again.

 

Let me also say this. I am just playing devil advocate. I truly do feel everyones pain in this process. I went through the wait, but canceled due to other reasons before the finish line. But that doesn't make me any less sympathetic to your cause. Perhaps when dealing with the government, I have just learned it is better not to if at all possible. In any and all cases, I will find an alternate route.

 

I learned a long time ago to pick my battles wisely. No matter how noble the cause or how great the injustice, if your chances of winning are so slim that it will cause you more harm than good, then it isn't worth fighting. If your win will just force the opposition to be more creative and even harder to defeat later, it isn't worth fighting. Find another way!

 

I have spoken to my Congresswoman, in person. You know what she did? She laughed. Not at me, but at the system. Her reply was, "Oh gosh! That is a can of worms that I have no clue how to open!. There is nothing I'll be able to do about this and even though I have been in Washington for 12 years, I wouldn't know who would". Now, if that isn't warning enough to make a rational person sidestep the process, I don't know what is. She is a good woman. She is just an average Mom, wife and mother that also happens to be a lawyer and she ran because her boss, her predecessor died and she was asked to fill his shoes.

 

I filed the I-129F for a K-1. It went to VSC, then to NVC. I canceled it before it left for GUZ. The lady and I ended our relationship due to family problems on her side that were insurmountable dealing with custody issues of her daughter. The more I spent in China and the more I looked at where American is headed, I decided that living in China was a better option. I don't like this process. I don't like the one-sided rules. I don't like the time it takes to get it done. I don't like the total lack of respect from GUZ as I read these threads and stories. But, as I said, I have no dog in this fight. I have no story to pass on to these attorneys. I have only offered what I have as a devils advocate, throwing out negative argument one after another just as an example of what you could be up against. I went to law school. I graduated. I know how to interpret law. I know how to pick apart an argument. A good analogy I learned is that an argument is like a piece of fabric. You don't have to take possession of the fabric to destroy it. You only need to get your hands on one single thread. The problem I see with the Immigration laws is that they are so loosely woven that even if you pull one entire thread out, you won't see any difference in the fabric.

 

I'm also saying that the demographics of people wanting to tumble the USCIS/DOS merry-go-round is so small that if, in unision, everyone grabbed a different thread and started pulling, it still wouldn't make any difference. In the grand scheme of things, we are so small a group that at our loudest, we can't even be heard. I dare say that just about any other special interest group, and we are a special interest group; is going to be bigger than we are, so any voice we have is nothing more than a barely perceptible whisper in the throng of screams. I'm afraid that just doesn't garner the attention we would all like it to. This is my realistic opinion of the subject. If it doesn't conform to your opinion, I can;t help that. I wish you the best of luck and if there is anything I can do that would make a real difference, I would be happy to help.

 

 

And again I say to everyone on this site who doesn't like the taste of what is being shoved in their mouth, don't just lie down and give up because someone tells you the objective looks too insurmountable.

 

Do what you need to do to develop your individual Plan B to get your lady here, and do what you can do to make a difference in the way things are now.

 

Everyone can give a little so that no one has to give a lot.

[HKG]

There is a song with the lyrics, "How long has this been going on?" So without question I believe we can apply those lyrics to this classic bureaucratic problem of non bonafide denials and the dark-hole that follows, I feel also we are a small group of people, trying to better a faulty system, maybe our voices are being drowned out by the roar of everything else in life, though at the same time it is the squeaky wheel that gets greased.

Edited April 13, 2009 by HKG (see edit history)

[LeeFisher3]

While you may not feel either of these situations are worth fighting why are you so intent on telling people just to roll over and die?

 

It saddens me that some have challenged making any effort to change the system when we've got two different options available that might just make life better for them and others.

 

But then why should anyone try, just give up and move.

[chengdu4me]

Lee...I'm not "telling" anyone to do anything. If anyone can change the system, then great! More power to ya! All I have been doing is throwing out scenarios that they may run into...not saying this is the case, but when dealing with the government of the United States, it is always best to assume that you are dealing with unethical people that do not feel that ordinary citizens have the right to challenge their power and they can and will screw you over at their whim and that you should be prepared for the worst. Optimism is good! Idealism is good! But it should be tempered with a very guarded posture when it comes to the US government.