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Breaking news on expired K-1's returned by consulates at CSC?


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A new client walked into the office today with a letter from CSC.

 

The letter read:

 

NOTICE OF DECISION

 

When I read those two words, I thought

"Oh no...don't tell me you didn't respond to an

request from USCIS,"

 

The subject was a K-1 petition filed in the Spring of 2008.

 

The letter went on in pertinent part:

 

"..."Since the period of validity has now expired the petition will not

be revalidated. Therefore in accordance with 8 CFR 214.2(k)(5), all

USCIS action on this petition is concluded as of this date. However,

Petitioner may choose to file another I-129F, Petition for

an Alien Fiance(e)' for the beneficiary with fee."

 

[insert Rebel Yell here.]

 

Does this mean CSC has finally regained its sanity and the same

letter will go out to thousands of petitioners who are waiting for

something to happen on expired K-1's returned by consulates?

 

It's too early to tell - But this is a GREAT SIGN! :cheering:

 

Now all we have to do is make sure the DOS gets the message.

It can no longer sit on subsequently-approved (re-filed)

K-1's waiting for CSC to review it. Because

the way it looks --- that ain't gonna happen!

 

I'd like to think someone got wind of some Federal litigation that was

coming down the pike on that very issue. We already had five attorneys

on board in the 9th Circuit. One of them, a very experienced Federal

litigator.

 

But if CSC has resolved the issue, I guess I won't get rich off

winning that case. And on the issue of reviewing expired K-1's returned

by consulates we were going to win. If AD Scharfen was wrong in his

May 23, 2008 memo and there is authority to review them - we

win. If he was right and there was no authority to review them - we

win.

 

Consulates should stop sitting on re-files and waiting for CSC

to do something, someday. Because someday never comes. At least, if

this letter indicates yet another change in CSC's policy on reviewing

expired K-1's returned by consulates, that someday ain't coming.

 

CSC has returned to its former (correct) position. Expired

K-1's cannot be reviewed. That leaves VSC. But VSC is reaffirming

the petitions without sending out NOID's.

 

A round of applause for the California Service Center. :clapping:

Edited by ellis-island (see edit history)
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I have been seeing this on VJ, in cases where the consulate denies based on the "NON-Bonafide relationship" grounds USCIS has been administratively closing the case because the interview happened after the I-129F NOA2 expiration date.

 

In this case no mark of misrepresentation is being placed on the file.

 

Unfortunately a new petition needs to be filed.

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The good news is that the petitioner is notified that the file is officially closed

That is sooooooo much better than being stuck in limbo.

 

Lee, After having stuck in limbo for a 10 month blue slip I can only say AMEN Now, I am very thankful that the USCIS re-approved our case without ever revealing what the DOS denied us over, thus no rebbutal letter from me. It must have been "real" legal. :mf_sleep:

 

tsap seui

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The good news is that the petitioner is notified that the file is officially closed

That is sooooooo much better than being stuck in limbo.

 

Lee, After having stuck in limbo for a 10 month blue slip I can only say AMEN Now, I am very thankful that the USCIS re-approved our case without ever revealing what the DOS denied us over, thus no rebbutal letter from me. It must have been "real" legal. :D

 

tsap seui

 

The p6c marker is still in the file, because the consulates place it there. But it doesn't become a "hard" 212(a)(6)(c )(i) finding, because the petition was not revoked (expired K-1's can't be revoked anyway). The marker should be removed at the next interview. Sometimes, it takes a day or two to remove it if the beneficiary is approved.

 

This was CSC's policy before. Then in 2008, it mysteriously changed it. I have a paper trail dating back to April 2007. I saw the change about December 2008. Now, Spring, 2009, CSC has apparently come to its senses and understood that expired K-1's cannot be reviewed or revoked.

 

Why do I think it's good news? At least the procedural issue is resolved. There is no authority to review or revoke expired K-1 petitions. Acting Director Scharfen was correct in his May 23, 2008 memo.

 

But what is DOS going to do? That remains to be seen. A lot of consulates have traditionally approved refiles, if they're satisfied

with the merits. GUZ & HCMC had the policy of sitting on them waiting for review to happen.

 

Has the consular side of the issue been resolved? We'll see.

 

VSC is reaffirming old K-1 petition approvals without sending NOID letters. So there is still review of expired K-1's at VSC.

So there is still a split in the way the Service Centers are handling these cases.

 

Stay tuned.

Edited by ellis-island (see edit history)
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so what does mean to GUZ in denying petitions and returning them ?

 

9 FAM 41.81 N6.2 Validity of a K-1 Petition

(TL:VISA-581; 09-03-2003)

An approved K-1 visa petition is valid for a period of four months from

the date of Department of Homeland Security (DHS) action and may be

revalidated by the consular officer any number of times for additional

periods of four months from the date of revalidation, provided the

officer concludes that the petitioner and the beneficiary remain legally

free to marry and continue to intend to marry each other within 90 days

after the beneficiary's admission into the United States. However, the

longer the period of time since the filing of the petition, the more the

consular officer must be concerned about the intentions of the couple,

particularly the intentions of the petitioner in the United States. If the

officer is notconvinced that the U.S. citizen petitioner continues to

intend to marry tbeneficiary, the petition should be returned to the

approving office of DHS with an explanatory memorandum. (See 9 FAM

41.81 PN7 for revalidation procedure.)

 

9 FAM 41.81 N6.5 Marriage Bona Fides

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

a. If a consular officer finds that the fianc¨¦(e) or marital relationship is

not bona fide but is a sham entered into solely for immigration benefits,

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

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

memorandum detailing the specific, objective facts giving rise to the

post¡¯s conclusion. b. All immigrant and K-1/K-3 visa revocation cases are to be returned to the following address:

National Visa Center

32 Rochester Avenue

Portsmouth, NH 03801

 

So that return process will remain. It's just that once it gets to CSC, there will be no review of expired K-1's. And there shouldn't be.

 

So can the Refuse & Refile cycle continue on & on?

 

(emphasis added)

 

9 FAM 42.43 N2.1 "Reason to Believe"

U.S. Department of State Foreign Affairs Manual Volume 9 - Visas

9 FAM 42.43 Notes Page 2 of 7

(CT:VISA-872; 03-23-2007)

 

In general, knowledge and reason to believe must be based upon evidence that USCIS did not have available at the time of adjudication and that such evidence, if available, would have resulted in the petition being denied. This evidence often arises as a result of or during the interview of the beneficiary.Reason to believe must be more than mere conjecture or speculation¡ªtherevmust exist the probability, supported by evidence, that the alien is not entitled to status.

 

P&B still have to address the issues of why the petition was denied in the first place. In my opinion, that includes re-files too.

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If a petition is returned for the non-bonafide reasons and one is not given a chance to review but only the option to refile, now add the cost of this refile from both the petitioner and beneficiary, the original petition expires not through the fault of the petitioner but the process of the system, why should the petition not be given a chance to be reaffirmed and sent back. What bothers me, is the added cost of a refile, a penalty, even though quite possible no fault of the petitioner or beneficiary.

Edited by HKG (see edit history)
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If a petition is returned for the non-bonafide reasons and one is not given a chance to review but only the option to refile, now add the cost of this refile from both the petitioner and beneficiary, the original petition expires not through the fault of the petitioner but the process of the system, why should the petition not be given a chance to be reaffirmed and sent back. What bothers me, is the added cost of a refile, a penalty, even though quite possible no fault of the petitioner or beneficiary.

 

1. How long are you willing to wait?

 

2. "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."
LINK Page 2 Sec.2

 

OTOH, VSC seems to be doing it the way you describe. I've seen a few

petition approvals reaffirmed without comment out of VSC the past two weeks.

 

I'm of the opinion that it's pointless for petitioners and consulates to

wait for service centers to review petitions that have already expired

and cannot be revalidated except for the specific purpose of approval.

 

If this is CSC's new policy (once again), I hope its legislative liaison section has been informed. They need to get the word out..

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If a petition is returned for the non-bonafide reasons and one is not given a chance to review but only the option to refile, now add the cost of this refile from both the petitioner and beneficiary, the original petition expires not through the fault of the petitioner but the process of the system, why should the petition not be given a chance to be reaffirmed and sent back. What bothers me, is the added cost of a refile, a penalty, even though quite possible no fault of the petitioner or beneficiary.

 

I have got to agree with HKG on this one, not only is it an added expense, that in most cases was not the fault of the petitioner and beneficiary, but what about not knowing what the reason for the denial was in the first place. I felt very confident when my fiancee went for her interview, heck, I front loaded a lot things in our petition, including many emails. In our case the VO told my fiancee that the emails we submitted were not legitimate, which is BS, but all she received is a standard form letter that says we have a non-bonafide relationship. When we go to refile, our evidence remains the same as it was the first time, including our emails, so how can I have any faith that she won't be denied a second time? They should have to disclose the reason or reasons why a denial was given. I personally think they deny some visas to accumulate cash for the consulate. Now if they allowed you to refile without having to pay the fees a second time, I don't think they would deny so many, because they would have to do twice the work for the same fees. This is why I think the Service Centers should review the denials in a reasonable time frame and either tell you why you were denied or resubmit your petition to the consulate with recommendation to award a visa. Jeff

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I know Guz doesn't give reasons for refusals. Some consulates do.

Disclosure is definitely the best way to go.

 

If there were disclosure, then a petitioner wouldn't be re-filing

blindly.

 

There is the appearance of abuse in not informing a petitioner

why a visa application by his or her loved one has been refused.

Where the process is not transparent - it looks suspicious.

 

And it's all so unnecessary. All they have to do is state the reasons on

the DS-194. It would defuse a lot of the problems. But the lack of

transparency causes huge problems of perception.

 

I've done so many of these cases that I will already know

reasons why a visa has been denied with 80-90% certainty just

by interviewing P&B. Now & then, there will be a case that

just baffles me. But I don't see them very often.

 

But I think CSC is doing the right thing here. The revocation

process can drag on for years. And in the case of K-1's,

there is no law or regulation justifying it.

 

HKG:

If a petition is returned for the non-bonafide reasons and one is not given a chance to review but only the option to refile, now add the cost of this refile from both the petitioner and beneficiary, the original petition expires not through the fault of the petitioner but the process of the system, why should the petition not be given a chance to be reaffirmed and sent back. What bothers me, is the added cost of a refile, a penalty, even though quite possible no fault of the petitioner or beneficiary.

 

Jeff & Qingyun:

I have got to agree with HKG on this one, not only is it an added expense, that in most cases was not the fault of the petitioner and beneficiary, but what about not knowing what the reason for the denial was in the first place. I felt very confident when my fiancee went for her interview, heck, I front loaded a lot things in our petition, including many emails. In our case the VO told my fiancee that the emails we submitted were not legitimate, which is BS, but all she received is a standard form letter that says we have a non-bonafide relationship. When we go to refile, our evidence remains the same as it was the first time, including our emails, so how can I have any faith that she won't be denied a second time? They should have to disclose the reason or reasons why a denial was given. I personally think they deny some visas to accumulate cash for the consulate. Now if they allowed you to refile without having to pay the fees a second time, I don't think they would deny so many, because they would have to do twice the work for the same fees. This is why I think the Service Centers should review the denials in a reasonable time frame and either tell you why you were denied or resubmit your petition to the consulate with recommendation to award a visa. Jeff

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