ellis-island Posted March 2, 2010 Report Share Posted March 2, 2010 (edited) 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 March 2, 2010 by ellis-island (see edit history) Link to comment
ellis-island Posted March 2, 2010 Author Report Share Posted March 2, 2010 (edited) There's a trap for the unwary here. 9 FAM 40.63 N10 MISCELLANEOUS9 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¨DVisas9 FAM 40.63 Notes Page 25 of 29 Pursuant to 8 CFR 205, invalidation of a labor certification forfraud in accordance with the instructions of USCIS or theDepartment of State automatically revokes an employment-basedimmigrant visa (IV) petition. On the other hand,USCIS retains exclusive authority to disapprove or revokefamily-relationship IV petitions. Thus, a misrepresentationwith respect to entitlement to status under a family relationshippetition, e.g., document fraud, sham marriage ordivorce, etc., cannot be deemed material as long as thepetition is valid. Upon discovery of a misrepresentation, youmust return the petition to the appropriate USCIS office. Ifthe petition is revoked, the materiality of themisrepresentation 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 March 2, 2010 by ellis-island (see edit history) Link to comment
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