Guangzhou Visa Refusals

[Guest ExChinaExpat]

This is a topic written by attorney John Roth to:

 

 

 

Memorandum to: Ambassador Janice L. Jacobs, Assistant Secretary for Consular

Affairs

President Barack H. Obama

Secretary of State Hillary R. Clinton

Ambassador Clark T. Randt, Jr.

US Embassy

Beijing, China

Crystal Williams,

Esq., Deputy Director,

American Immigration

Lawyers Association

http://www.ilw.com/articles/2009,0623-roth.pdf

[tsap seui]

NIce letter. I'd love to see his reply from the fine folks he sent it to.

 

My letter to them, both of the presidents and both of the State Department heads got answered by some Washington DC flunky in the State Department with a form letter that had damn near nothing to do with what I wrote about and detailed in clear easy to understand English. Those buttwads are too busy fund raising money for the illegals they let in to worry about the broken and criminal legal immigration system. Unfortunately, no one cares about legal immigration.

 

My response letters from the two presidents and both HIllary and her lovely predator accessory...er ah... predecessor was nothing short of defaming and downright insulting. And so it goes........I scream into this manicured wilderness.

 

tsap seui

[Mick]

A fantastic letter to be sure, clearly describing the problem and offering specific data and case examples to back up his claims. i especially liked Part B, where he talks about how GZ, at least according to State Department guidelines, does not have direct authority to do some of the things they are doing in the review process. I, too, would be very interested to see what kind of response this kind of letter will receive.

[MarcRosie]

Proabaly get the same type of response that I got when I sent a letter to Obama. Yes they know the immigration process is screwed up and sorry. They're working on it.

[Guest ExChinaExpat]

Tsap and Mick,

 

I did find this post about a reply to that memo. The reply of course is what most would anticipate:

 

 

 

THURSDAY, MAY 14, 2009

Reply from State Department

The State Department returned my complaint memorandum and supporting case histories by U. S. mail on Monday with an unsigned pro forma letter that is completely and totally unresponsive to the facts/arguments/criticisms cited in the memo. See reply. In effect, the government is saying with this letter: "we will do anything we want to regardless of what you, anyone else, or the law says.”

The only solution now is a political one. Everyone who cares about this issue has to get in the face of their congressional representatives and stay there until our elected representatives explain why the government seems to care infinitely more about the pain and suffering of foreign terrorists held in Guantanamo Bay than they do about U.S. citizens who are separated from their loved ones by an arrogant and unresponsive U.S. State Department. The abuses have been fully documented, and we have seen what the top people in the State Department think. Now is the time to escalate the issue fully into the political arena.

This same “smarter-than-thou” set in the government will soon be telling us what medical service we and our families can and can not have. The stakes couldn’t be higher. Join the fight. I will be doing my part but I can’t do it alone. My goal will be to make the performance of the Guangzhou U.S. Consulate an issue in the confirmation hearings of the next appointed Ambassador to China. It’s the perfect opportunity to lobby for change at Guangzhou. The Ambassador can make very substantial changes in immigrant visa processing. When I filed a complaint against the Warsaw U.S. Embassy in the late 90's that is very similar to the one filed against Guangzhou, the Ambassador contacted me through one of his top aides, promised significant changes in personnel and organization, delivered on all his promises, and the Warsaw Embassy went from being one of the worst in the world to being one of the best in the world (and so remains).

So, speak up now, or forever be silent.

 

http://arctecblog.blogspot.com/2009_05_01_archive.html

 

 

 

The only time most of us look for information about the lawless shit happening in Guangzhou is after we become a victim of it. Those who are lucky to get through do themselves well to leave it behind them. Truly things are so bad in Guangzhou that it can be compared with the lawless behavior we all see on our American borders. With so little attention paid in the media toward legal immigration it's doubtful that anything can be done. Unless of course victims rise up and write about it. There remains a perception in the public that somehow visas are granted according to clean paperwork and not having one of the lawless red flags attached to you or your partner. What's a lawless red flag? It's an arbitrary scarlet letter that has no founding in the law whatsoever that can forever ban your partner from entering America, or add countless months or even years to trying to get here.

 

Some attorneys suggest the kitchen sink approach and "front loading" paperwork to anticipate any and all conoff objections. But, does it work? The evidence is mixed and in fact it may even have the opposite affect.

 

 

 

Documenting a K-1 Visa Petition: Minimalist or Kitchen Sink?

I have been arguing for years against the "throw in the kitchen sink" approach to documenting U.S. immigration petitions. I recently received support for my position petition while speaking at an immigration law seminar in New York City. Sitting to my right was William Yates, former Chief of Domestic Operations for the USCIS. He strongly advised the assembled attorneys not to follow a “kitchen sink” approach to assembling immigrant petitions, noting that internally the USCIS mantra is “approve only if you can’t deny,” so the fewer opportunities you give the USCIS to deny a petition, the better.

Many petitioners believe that the more they show the government, the less likely the government will be to deny their petition or ask for additional evidence. My view has always been that its best to give the government the minimum necessary documentation to create an approvable petition (including, in some cases documents carefully addressed to a discrete “red flag” issue), and nothing else, because each superfluous document contains the possibility of eventually creting the basis for a denial. We have seen this dozens of times (if not hundreds of times) as petitioners come to us with a failed petition and we see that an unnecessary and damaging document was included in the case petition. Worse still, we're stuck with these documents because they remain part of the case record no matter what is submitted in the appeal or in new petition. A common example of this type of mistake is the petitioner who includes in his petition copies of the Western Union receipts showing money being regularly sent to his fiancée. The U.S. petitioner thinks this shows his commitment to his fiancée and seriousness in regard to the relationship. The U.S. consular officer, on the other hand, is more likely to view this financial support as something that undermines the fiancée's claim to be motivated solely by the desire for love and romance.

There is a more sophisticated argument for "frontloading" I-129F petitions, which is based on the notion that the U.S. consulate is not allowed to deny a petition based on a “re-adjudication" of facts already reviewed by the USCIS. The problem with his theory is that that U.S. consulates routinely disregard this constraint on their behavior. We've tried to argue it before the consulates many times and they simply ignore it based on their view that new facts have arisen during the consular interview and therefore they have every right to reassess the fiancé or petitioner’s qualification for the visa. The consular officers are especially emboldened by the fact that most of their judgments are subjective and that a consular officers decision may be challenged only based on mistakes in law, not on mistakes in facts or their evaluation.

Arguing their re-adjudication point makes some sense if you are appealing the case after it's been returned to the USCIS with a request for revocation. But the USCIS no longer allows appeals of K-1 petitions denied by the Consulate, instructing petitioners instead to re-file the I-129 petition, so this rationale for frontloading no longer exists for K visa cases. Even in you are preparing a spousal visa case, where an appeal of a consular denial is still possible, do you really want to take the risk of a USCIS or consular denial based on the very small possibility that some extra document thrown into the USCIS petition will be useful to you months or years later in an appeal of a denial of your fiancées case? Of course not, the disadvantages far outweigh the advantages.

 

http://arctecblog.blogspot.com/2009_04_01_archive.html

Edited July 30, 2014 by ExChinaExpat (see edit history)

[Mick]

I was not able to find the reply by following the links. I got on Roth's website but when I clicked on the "reply" button in the text, it took me to his home page. Even so, it does not surprise me that he got the response he did. the State Department couldn't give a rat's ass about what is going on in GZ. They are too busy with "more pressing issues of a political nature" than to concern themselves with something as trivial as keeping legitimate families torn apart at the whim of one of their Consulates. They will just ignore any and all evidence offered detailing the illegal and unethical activities of their employees. It matters not which party is in charge of the Executive Branch of government, the reality is that what we get is, in the epic words of Aerosmith: Same Old Story; Same Old Song and Dance.

 

Jesse, I wonder if the attorney would mind it I sent a copy of his letter and packet to my congressman and/or Senators? I would use it to support a letter I would write. Others also might be inclined to do something similar. Just a thought. The only solution I can see is through Congressional inquiry and even that may be a reach. Right now, we are in the last two years of an administration and those in power in the State Department are more concerned with getting their ducks in a row for transitioning back into the private workforce. But any concerted movement started now, might bear fruit in the next administration.

[tsap seui]

Good idea Mick.

 

Yes, they don't care and nobody, not us as citizens in distress, immigration attorney's, and even a congress person (if they gave a flyin' F) would ever get a decent response beyond a damn near form letter (I know that is all I got from DOS with my two letters to presidents and their DOS heads).

 

The laws were written by congress a long time ago and especially in Guangzhou they don't even abide by them, or any laws that they make up themselves on the fly. Our cases are acted upon as if they were top military secrets and NOBODY is going to get any answers...DOS hides it's ugly head behind Homeland Security. I'll admit, I tell people to write letters to their congressmen, etc., but I know from experience that it is useless. QUite bluntly and in all honesty what I do know and why I advise people to do it is simply because it keeps you, the petitioner, busy and it shows your loved one in China that you are "doing something". Will it get you any answers? No. Period. The system is broke, and the system has grown into nothing but something political....just as has everything else in AMerica....POLITICAL...people covering their sorry asses for the good of their party. THere is no more we the people, it is we the party...how can we get more voters...and what a disingenuous new way are we seeing with what is going on right now at our borders. Illegals downright legally coming in, and the legal petitioners and their beneficiaries being kicked around like yesterdays trash.

 

The trouble is, there aren't enough of "us" to get anyone on our side, or to get congress to do anything for us. I'll bet we couldn't get 2,000 people in the whole country to help get congress to make any changes for us who did and do use the legal approach. Two thousand people, hell, there are more new voters coming in illegally each week than our paltry two thousand law abiding citizens. The system has grown upside down....er...ah...political. And it wouldn't matter which party was in office, one is just as bad as the other...all of their glass are half "empty".

 

Jesse, that article about the "kitchen sink" has one major flaw that I can see. The initial application we send in to the USCIS is the ONLY TIME any of us have to present our case. Sure the application goes to USCIS, but for myself, the 600+ pages I sent to the USCIS, other than the !-130 etc., was ALL for the State Department workers in GUangzhou. If I only sent in the 6 or 8 pages required by the USCIS, when would I be able to make the REAL case to Guangzhou?????? You can't!!!!!!! They won't take additional evidence once it leaves your USCIS field office. At the interview in Guangzhou our women are lucky if the VO will even look at our passports...much less take additional evidence of our bona fide relationships AT THE LAST MINUTE WHEN THEY ARE STANDING THERE FOR THEIR INTERVIEW!!!! The interview which already (in damn near every case) has the decision to pass or fail the beneficiary BEFORE she walks up to the window.....LOL The damned interview is nothing but window dressing!!!

 

As far as my huge initial application for our IR-1 interview, I wrote a short letter placed on top of my application and said I was sorry for so much paperwork to the USCIS, that, the additional paperwork was for the State Department workers in Guangzhou. LOL Hey, make em laugh where you can, I always say.

 

No, that advice to not send in all of your evidence to the USCIS in a kitchen sink like fashion, omits one important fact...there is no where else to send in your REAL case...they won't allow you to anywhere else.

 

As far as the approval from the USCIS....jeez, a person would have to have a real piss poor, and glaringly bad record, and case to flunk and not get a positive I-797 letter from USCIS. I'll stop short of saying it's damn near a given that you will pass the USCIS.

[Guest ExChinaExpat]

Jesse, I wonder if the attorney would mind it I sent a copy of his letter and packet to my congressman and/or Senators? I would use it to support a letter I would write. Others also might be inclined to do something similar. Just a thought. The only solution I can see is through Congressional inquiry and even that may be a reach. Right now, we are in the last two years of an administration and those in power in the State Department are more concerned with getting their ducks in a row for transitioning back into the private workforce. But any concerted movement started now, might bear fruit in the next administration.

 

 

I think that is precisely what he wants. Meaning, for everyone to contact as many congressmen and government officials regarding the abuse happening at the consulate in Guangzhou. Unfortunately, there is a perception among so many couples that they have a substantial effect upon the interview result be behaving properly and front-loading paperwork. As more evidence surfaces about the actual numbers, there appears to be more evidence that shows just how arbitrary the approval process is.

 

If even 10% of people involved with Guangzhou would write their congressman, we could have a voice. But far too many are intimidated by writing, or have fears that by writing it may affect their immigration status. In other words, complainers get sent to the gas chamber and those who tow the line win. That's bullshit to the 'enth degree and violates everything about what America stands for. When a consulate like Guangzhou can spit in the face of the people and laugh------then, it's obviously a serious issue. The issues are even more troubling when it's so easy to see and yet virtually no outcry from the public. We are not powerless. However, it may not be possible to get a voice from men who file to bring a foreign woman to America. They just want to keep it private.

Edited July 30, 2014 by ExChinaExpat (see edit history)

[Randy W]

There is a more sophisticated argument for "frontloading" I-129F petitions, which is based on the notion that the U.S. consulate is not allowed to deny a petition based on a “re-adjudication" of facts already reviewed by the USCIS. The problem with his theory is that that U.S. consulates routinely disregard this constraint on their behavior. We've tried to argue it before the consulates many times and they simply ignore it based on their view that new facts have arisen during the consular interview and therefore they have every right to reassess the fiancé or petitioner’s qualification for the visa. The consular officers are especially emboldened by the fact that most of their judgments are subjective and that a consular officers decision may be challenged only based on mistakes in law, not on mistakes in facts or their evaluation.

 

Yes - front-loading is NOT a time for true confessions or a confession of sins. Neither approval of the USCIS nor absolution by the Pope will let you off of THAT hook - the Visa Officer is REQUIRED BY LAW to deny your petition if he feels your relationship is NOT bona-fide. Don't help him out by front-loading the evidence.

 

Front-loading CAN be used to good effect, however, by painting a picture of a loving relationship which will be in the hands of the VO at the time of the interview.

 

Provide evidence which will HELP him approve your visa, NOT work against it.

[Guest ExChinaExpat]

Jesse, that article about the "kitchen sink" has one major flaw that I can see. The initial application we send in to the USCIS is the ONLY TIME any of us have to present our case. Sure the application goes to USCIS, but for myself, the 600+ pages I sent to the USCIS, other than the !-130 etc., was ALL for the State Department workers in GUangzhou.

 

As you know most petitions are denied at the consular level. USCIS passes most all petitions, and they should. Consulates like Guangzhou have been repeatedly warned not to readjudicate petitions, but they do it virtually every single time. The evidence shows they don't read the content of what they receive. It doesn't matter whether it was there from the front-loading or not. The consulate considers themselves to be gods and mind-readers and soothsayers. They know the future and therefore have the right to push someone through, or send 'em packing.

Edited July 30, 2014 by ExChinaExpat (see edit history)

[credzba]

 

There is a more sophisticated argument for "frontloading" I-129F petitions, which is based on the notion that the U.S. consulate is not allowed to deny a petition based on a “re-adjudication" of facts already reviewed by the USCIS. The problem with his theory is that that U.S. consulates routinely disregard this constraint on their behavior. We've tried to argue it before the consulates many times and they simply ignore it based on their view that new facts have arisen during the consular interview and therefore they have every right to reassess the fiancé or petitioner’s qualification for the visa. The consular officers are especially emboldened by the fact that most of their judgments are subjective and that a consular officers decision may be challenged only based on mistakes in law, not on mistakes in facts or their evaluation.

 

Yes - front-loading is NOT a time for true confessions or a confession of sins. Neither approval of the USCIS nor absolution by the Pope will let you off of THAT hook - the Visa Officer is REQUIRED BY LAW to deny your petition if he feels your relationship is NOT bona-fide. Don't help him out by front-loading the evidence.

 

Front-loading CAN be used to good effect, however, by painting a picture of a loving relationship which will be in the hands of the VO at the time of the interview.

 

Provide evidence which will HELP him approve your visa, NOT work against it.

 

 

This makes so much sense, that I am surprised you even have to say it, but I am glad you did.

Tsap is right, it is a crap shoot, but as in craps you should know your odds, and place your bet to give you highest possible chance of winning, even if its a loosing game.

 

Front loading, as you say, is NOT a time for true confession. It is a time for YOU to know what your liabilities and strengths are, and to present the data to provide the best chance of your success.

 

Reading that 19 page letter made me remember the process, and frustrated me.

Will it move me to write to my congressman? Sadly, NOPE.

There is no gain for me, I know that is selfish, but it has no upside for me to write congress, and has potential (albeit small) downsides.

[Guest ExChinaExpat]

 

 

There is a more sophisticated argument for "frontloading" I-129F petitions, which is based on the notion that the U.S. consulate is not allowed to deny a petition based on a “re-adjudication" of facts already reviewed by the USCIS. The problem with his theory is that that U.S. consulates routinely disregard this constraint on their behavior. We've tried to argue it before the consulates many times and they simply ignore it based on their view that new facts have arisen during the consular interview and therefore they have every right to reassess the fiancé or petitioner’s qualification for the visa. The consular officers are especially emboldened by the fact that most of their judgments are subjective and that a consular officers decision may be challenged only based on mistakes in law, not on mistakes in facts or their evaluation.

 

Yes - front-loading is NOT a time for true confessions or a confession of sins. Neither approval of the USCIS nor absolution by the Pope will let you off of THAT hook - the Visa Officer is REQUIRED BY LAW to deny your petition if he feels your relationship is NOT bona-fide. Don't help him out by front-loading the evidence.

 

Front-loading CAN be used to good effect, however, by painting a picture of a loving relationship which will be in the hands of the VO at the time of the interview.

 

Provide evidence which will HELP him approve your visa, NOT work against it.

 

 

This makes so much sense, that I am surprised you even have to say it, but I am glad you did.

Tsap is right, it is a crap shoot, but as in craps you should know your odds, and place your bet to give you highest possible chance of winning, even if its a loosing game.

 

Front loading, as you say, is NOT a time for true confession. It is a time for YOU to know what your liabilities and strengths are, and to present the data to provide the best chance of your success.

 

Reading that 19 page letter made me remember the process, and frustrated me.

Will it move me to write to my congressman? Sadly, NOPE.

There is no gain for me, I know that is selfish, but it has no upside for me to write congress, and has potential (albeit small) downsides.

 

 

 

Front loading makes sense in a world where Guangzhou Conoffs follow the rules. But, we know they don't follow the rules and in fact they have been repeatedly reprimanded about not following them. Reprimanded by DOS, USCIS, the Ombudsman, and countless lawyers and families have reminded them.

 

Consulates are NOT supposed to be adjudicating approved petitions. They are not trained to do so, and further they are not authorized to do so. The evidence is clear that most petitions clear USCIS, but extraordinarily high return rates to the USCIS occur in Guangzhou (50%-70% rejection rates). The vast majority of those returns are found to be without merit and baseless, and eventually returned to the consulate to give another interview.

 

What's happening is conoffs are playing nanny. The laws are clear, but conoffs at Guangzhou exploit flexibilities. For example, supposed red flags from attorney John Roth's complaint:

 

1. “No English, No Visa”

2. “One visit, no visa”

3. “Marriage on first visit, no visa”

4. “Very large age difference, no visa”

5. “Three or more marriages by petitioner, no visa”

So, where do those five points and others come from? I contend they are pulled from the nanny ass of the overly rambunctious conoff. If it were a US law, then what are the ranges? For example, how much of an age difference is too much? Further, there is nothing in immigration law that specifically mentions any of these things. Why? Because they are arbitrary and nanny-law. And what business does the conoff or US government have in making a decision as to the nature of whether a relationship is bonafide outside of specific evidence that it's not? Their job is not to predict the future for the couple, but to flag issues where there is obvious evidence of fraud, sickness, or another deniable event like HIV, or TB.

Because lawyers feel powerless to affect the outcome of a petition, some engage in and recommend front-loading a petition with anything and everything that can be guessed as a potential issue and providing an explanation for it. The reason being is that if the answer appears in the petition, then the conoff will find it and decide against sending it back to the USCIS. But, more and more evidence is surfacing that front loading has little to no effect upon the outcome. In fact, some lawyers are suggesting today that front-loading may cause a negative impact to your petition. Most lawyers tell their clients to refuse to answer questions by law enforcement. But, lawyers don't know what to tell their clients when they are questioned by god. Okay, so you front loaded your petition and the answer to their question and concern is there? In the end, they still send it back to the USCIS and you wait for months for it to go back to consulate. The NOID may or may not be upheld at USCIS level.

The bottom line is the consulate receives approved petitions. Instead of conducting interviews and looking for obvious violations, they are pulling them out of their asses and bringing pain and anguish to good people and destroying lives.

There is a reason attorney John Roth opened the letter to his complaint with the following:

Introduction

The U.S. Consulate in Guangzhou is a high fraud post. Shockingly, the fraud in recent

years comes not primarily from the applicants, but rather from the Consulate itself.

The Consulate routinely re‐adjudicates K‐1 and K‐3 visa petitions, employing review

standards that are not consistent with Department of State policies, and then it

engages in a never‐ending pattern of deceit to ensure that no interested party may

learn the reasons for the Consulate’s action, or may challenge its decisions.

Edited July 30, 2014 by ExChinaExpat (see edit history)