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NOID's at California Service Center Update


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Hi. I have some news for you. Recently, I was retained on a K1 NOID

from a consulate in another part of the world, (not GUZ or HCMC).

There were some new features to the NOID that some of you might

want to know about.

 

***

For background:

 

I've written on this topic before, here:

 

http://candleforlove.com/forums/index.php?showtopic=37301

 

And here

 

http://candleforlove.com/forums/index.php?showtopic=37279

***

 

This new case was one where the petitioner had filed a 2009 K1 petition

and the beneficiary was refused at the consular interview. California

sent petitioner a notice of decision that the petition had expired, but

that she could refile and pay a fee.

 

So she refiled and paid the fee. (And she asked for the IMBRA waiver,

which by statute is not necessary for the same beneficiary.)

 

Anyway, before approving her new K1 petition, CSC sent her

an NOID, (Notice of Intent to Deny). And she was required to respond

to it within 30 days.

 

Here is the interesting part, the allegations in the NOID came from the

previous consular interview. So, CSC had pulled the previous K1 petition

file and quoted the consular officer's reasons for denying the previous

K1 visa application. (Those reasons were written in the return

memorandum.) But CSC had done this in the context of a new petition.

 

Remember, the new petition has not been approved yet. It has a 2010

case number. The old petition was approved & expired. It had a 2009

case number. So CSC would be using the 2009 reasons to justify

denying the 2010 petition.

 

The old 2009 K1 petition and the consular memorandum were never

reviewed UNTIL petitioner filed a new K1 petition for the same

beneficiary. At that point, CSC promptly reviewed them and sent out an

NOID.

 

This is a better & fairer system for US citizen petitioners than what CSC

& the consulates were doing last year. Some of you might recall, there

was almost a class-action lawsuit against CSC over the issue of

reviewing expired K1's returned by consulates. Consulates were sitting

on re-filed petitions waiting for CSC to review them -- and that was

taking years.

 

This is not a problem now. There is no danger of a consulate sitting on

the case waiting for CSC to move -- because the consulate does not

have the new case yet. It hasn't even been approved.

 

There is no danger of waiting years for CSC to review an expired K1

petition that has been returned by a consulate -- because that old

petition is dead. It has expired. And the consular reasons for refusing it

have died with it, UNLESS the petitioner files a new K1 petition. At that

point, the consulate's reasons are revived and addressed in the NOID

procedure.

 

Personally, I think this is a better system all around.

 

What should you do?

 

If you're filing a second K1, make sure you respond in advance to

the reasons the consulate refused the first visa application. For

instance, if one of the problems was photographic evidence, include a

lot of photos. If the consulate concludes that one party is still living

with an ex-spouse, include evidence that it ain't so. If you don't know

why it was refused, you need to find out.

 

The vast majority of the time, I already know why a consulate refused

a case just by interviewing the parties. Even if the consulate doesn't

list them on the OF-194 refusal sheets, I can usually figure it out.

 

Anyway, you should do that as a matter of practice anyway. If you file

an I-130 after a K1 was refused, address the reasons it was refused

when when you file. That may save CSC the necessity of sending you

an NOID (K1's) or an NOIR (CR/IR-1's).

 

Finally, another reason I like this system is that it removes the old

inadmissibility trap found in 9 FAM 40.63 n8.1 that ruins so many cases.

 

I'll get to that in the next post.

Edited by ellis-island (see edit history)
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There's a trap for the unwary here.

 

9 FAM 40.63 N10 MISCELLANEOUS

9 FAM 40.63 N10.1 Misrepresentation in

 

Family Relationship Petitions

(CT:VISA-1030; 09-22-2008)

 

U.S. Department of State Foreign Affairs Manual Volume 9¨DVisas

9 FAM 40.63 Notes Page 25 of 29

 

Pursuant to 8 CFR 205, invalidation of a labor certification for

fraud in accordance with the instructions of USCIS or the

Department of State automatically revokes an employment-based

immigrant visa (IV) petition. On the other hand,

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.

 

http://www.state.gov/documents/organization/87011.pdf

***

 

Every time a K1 or family visa is refused at a consulate,

a fraud marker is placed in beneficiary's file. It doesn't matter if the

officer's reasons are half-baked or factually incorrect. That fraud marker

is still hanging there over your beneficiary's future. It's called a P6C

marker. And it will continue to hang there until you either win a

revocation, or the officer removes it.

 

When the petition is returned to USCIS, there is a revocation

proceeding for family petitions. Petitioner is sent an NOIR. Most of

the time with CSC, the reasons in the NOIR mirror those written

by the consulate. It's unfortunate that CSC doesn't seem to stop

and measure the legal sufficiency of consular conclusions. But I'll

take whatever I can get. CSC's failure to measure legal or factual

insufficiency makes these things easier for lawyers to win.

 

But if the petitioner does not succeed in defeating that NOIR and

proving the consulate wrong, those half-baked conclusions the consular

officer may have written in the memorandum become findings of facts

by USCIS.

 

That means your loved one has become inadmissible for life,

under INA 212(a)(6)(c )(i), (Misrepresentation). You can apply

for a waiver. But waivers are discretionary. And they are damned

difficult.

 

This fraud trap set by DOS made no sense with K1's. For instance,

how can an expired petition be revoked? It's like beating a dead horse.

The thing is dead. Why are they still flaying away at it?

 

But DOS kept flaying away until last summer. It pretended the 120

day life period of K1 approvals did not exist. Now -- that is no longer a

problem.

 

If an NOID is sent prior to a new K1 being approved, DOS doesn't even

know about it. It hasn't received the petition yet. But the issues raised

by the consulate in the previous petition are addressed, because CSC

now pulls the file and recites them in an NOID to the petitioner.

 

So once CSC approves the new petition, after the petitioner wins the

NOID or NOIR, that hanging fraud marker in the beneficiary's file has to

be taken out.

 

I'd hope that DOS is no longer putting the damned things into

K1 beneficiary's files anyway. It's pointless. An expired K1 is a dead

horse. It cannot be revoked. There is no legal or logical reason 'for that fraud marker to ever take hold in a K1 case now.

Edited by ellis-island (see edit history)
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