K-1 Considerations

[Randy W]

Those who are considering filing an I-129F for a K-1 visa would do well to consider some of these aspects of the visa process. That being said, the choice of which visa to file for is a personal decision which should be made after careful consideration of your own situation.

the K-1 is in a visa category (NON-IMMIGRANT VISAS) which ALLOWS fairly arbitrary rejections and denials. I realize the consulates process them as Immigrant visas, but can you really expect the same accountability stateside that is applied to Immigrant visas?

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The US consulate in Guangzhou has arbitrarily rejected as many as 70% of all K1 petitions they receive and are never held to account to provide specific details for rejection, and further the petitioner and beneficiary are never provided the option to rebut any allegation. If you're thinking of going K1, you may want to consider that whether a K1 is accepted or rejected is a matter of chance and arbitrary decision making at the consular level.

 

 

 

RandyW, on 07 Jul 2014 - 8:36 PM, said:http://static-forums.visajourney.com/public/style_images/master/snapback.png

On 7/7/2014 at 8:36 PM, RandyW said:

Nice little discussion you've got going here, but it strikes me that at the end of the day, the K-1 is in a visa category (NON-IMMIGRANT VISAS) which ALLOWS fairly arbitrary rejections and denials. I realize the consulates process them as Immigrant visas, but can you really expect the same accountability stateside that is applied to Immigrant visas?

Perhaps a change IS called for, to ensure that petitions and applications are treated with the fairness they deserve, but it's not clear that it can be applied to what we have NOW.

 

 

From Marc Ellis, Immigrations attorney -http://candleforlove...able-person-do/

. . . . . . http://www.ilw.com/a...0323-ellis.shtm

But the Consular Officials ALWAYS have "substantial evidence relevant to petition validity not previously considered by DHS" available to them, simply through the visa application and the interview. Regardless of ANY evidence, they are ALSO REQUIRED BY LAW to DENY any application where they feel (or get the wild hair up their a$$) that the relationship is NOT bona-fide - and they are not required to justify their findings beyond a simple statement that "the relationship is not bona-fide".

The law is that the visa is awarded at the sole discretion of the Interviewing Officer. Under the Doctrine of Consular Non-reviewability (which HAS been re-affirmed in the courts many times), these decisions cannot be changed.

The Doctrine may (and has been) challenged in the courts - and has been upheld.

Challenging the Doctrine of Consular Non-
Reviewability in Immigration Cases

If someone is able "to compel the consulate to produce the NEW and compelling evidence", they might just do exactly that - remember that new evidence, unavailable to the USCIS in adjudicating the original petition, is ALWAYS available through the visa application, P3 and P4 material, and the interview itself

The pitfalls of the K-1 fiance visa: Consular nonreviewability

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Unfortunately, due to a rule known as the doctrine of consular nonreviewability, there was no way to require a U.S. Department of State visa office to justify either its lack of action or rejection of a visa application. We cannot get a federal court to force a decision, because the courts will defer to the U.S. Department of State under this doctrine. The only way to get past this judicial deference to visa decisions is to prove that the visa office acted in bad faith, an impossibility in the vast majority of cases. This is because the applicant has no information from the visa office, much less information about what evidence the decision is actually based upon.

 

Edited December 20, 2020 by Randy W (see edit history)

[Randy W]

I found this in the U.S. Department of State Foreign Affairs Manual, dated 05-27-2010 - 9 FAM 42.43 N1 SUSPENDING ACTION IN PETITION CASES

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You should bear in mind that the Department considers the approval of a visa petition prima facie evidence of the relationship between the petitioner and the beneficiary.

Therefore, it is your responsibility to review, not to readjudicate petitions. However, in the course of that review, if you obtain sufficient facts so that you know or have reason to believe that the beneficiary is not entitled to the status approved in the petition you will return the petition to the U.S. Citizenship & Immigration Services (USCIS) through the National Visa Center (NVC).

 

http://www.state.gov/documents/organization/87852.pdf - document no longer available

Edited December 20, 2020 by Randy W (see edit history)

[Randy W]

Fiance visas are still available, and, on occasion, actually awarded, but may become even more volatile and unwise in the near future

Obama asks for review of K-1 fiance visas after California shooting

Edited December 20, 2020 by Randy W (see edit history)