visa denial

[VanessaTony 3,567]

I misspoke when i referred to the petition as an immigrant petition. As for the rest, I think Marc Ellis' article is also agreeing with me, see http://www.ilw.com/articles/2006,0323-ellis.shtm

Note that he specifically refers to the K-1 visa example at the beginning of the article and writes "These are the facts we’re using for the article."

No point discussing this further anyway

The link you posted again is titled "This article focuses on the return of approved family-based IV petitions by consulates and how to represent clients in DHS revocation proceedings."

Firstly, a k1 visa is NOT a "family-based immigrant visa" and secondly, it AGAIN refers to "the return of .... petitions by consulates".

But you are correct that he refers to K1 visas, incorrectly, as IV's.

[Tahoma 2,291]

The bona fide's of the relationship are a matter that only the USCIS gets to decide. The trick is to include a lot of evidence, including any derogatory information, with the initial I-129 application. The embassy can only deny a visa for lack of evidence of a bona fide marriage and send the file back to the USCIS when it uncovers new information, not previously considered by the USCIS. So make sure there is no new information to uncover and USCIS has all possible derogatory info to begin with and still approves the case.

One of the the problems with your logic is that, even assuming a petition is front-loaded, and even assuming that the USCIS looks at the front-loaded evidence of a bona fide relationship, it doesn't take into account all of the evidence of a bona fide relationship which occurs from the time the K-1 petition is initially submitted by the petitioner to the USCIS until the time of the USEM interview, nor does it take into account other documents that the beneficiary must submit to the USEM during the interview which, if submitted with the initial petition, would be outdated by the time of the interview. So, as you can see, it is impossible to make sure there is no new information when the beneficiary interviews at the Embassy.

Read the seventh paragraph from that link titles "No readjudication of petitions." The language is clear. The only difference between fiance/spouse petitions has to do with issues of validity and expiration. You can argue that the consular officials don't follow the state department's instructions, but the instructions themselves are clear.

7. In general, an approved petition will be considered by

consular officers as prima facie evidence that the requirements

for classification - which are examined in the petition process

- have been met. Where Congress has placed responsibility and

authority with DHS to determine whether the requirements for

status which are examined in the petition process have been met,

consular officers do not have the authority to question the

approval of petitions without specific evidence, generally

unavailable to DHS at the time of petition approval, that the

beneficiary may not be entitled to status (see 9 FAM 41.53, Note

2, 41.54 Note 3.2-2, 41.55 Note 8, 41.56 Note 10, 41.57 Note 6,

and 42.43 Note 2) due to fraud, changes in circumstances or

clear error on the part of DHS in approving the petition.

Conoffs should not assume that a petition should be revoked

simply because they would have reached a different decision if

adjudicating the petition.

Your interpretation of the paragraph is just plain wrong. At the USEM, the Consular Officers will definitely have specific evidence which is unavailable to DHS at the time of petition approval. Where did you get the idea that they wouldn't?

I misspoke when i referred to the petition as an immigrant petition. As for the rest, I think Marc Ellis' article is also agreeing with me, see http://www.ilw.com/articles/2006,0323-ellis.shtm

Note that he specifically refers to the K-1 visa example at the beginning of the article and writes "These are the facts we’re using for the article."

No point discussing this further anyway.

I think you are repeating my words exactly.

Marc Ellis' article is not agreeing with you. Read this part of Ellis' article again:

What does that language mean? It means an approved petition is prima facie evidence of eligibility for an immigrant visa, unless a consular officer finds substantial evidence of ineligibility. More importantly, this evidence must have been unknown and unavailable to DHS at the time it approved the petition. That is the nearly the whole game for your client right there, in a few words.

As I said above, it's impossible for the USCIS to have all of the evidence when they initially adjudicate the petition because they only have the evidence from before the petition was submitted, and nothing from then until the Embassy interview.

Jim's post does not agree with you either:

USCIS does not interview either the petitioner or beneficiary, nor do they evaluate evidence of a bonafide relationship during the petition approval process. The consular officer is the first one to see any of this evidence, which makes it abundantly easy for the consular officer to produce evidence which was "generally unavailable to DHS at the time of petition approval". This is, in fact, how the overwhelming majority of denied petitions end up being sent back to USCIS. The consular officer is claiming that the visa was denied based on evidence discovered during the interview, and they're recommending that USCIS revoke the approval of the petition.

diavitirio...please link me to anyone whose K-1 petition was denied by the USCIS for failure to prove a bona fide relationship without the petition ever having reached the USEM level.

[Tahoma 2,291]

By the way, the USEM requires K-1'ers to bring evidence of a genuine relationship to their interview. The following is from the USEM's interview instructions:

REQUIRED DOCUMENTS. It is important that you submit ALL of the following documentation to facilitate the processing of your application.

~clip~

EVIDENCE OF A GENUINE ENGAGEMENT. You must be prepared to prove to the consular officer that you have a genuine relationship with your petitioner and a clear intention to marry within 90 days of admission into the U.S. In the past, successful applicants have submitted photographs, letters, e-mails, phone records, bank records, and remittance records as evidence supporting their relationships and intent to marry.

Link to USEM K-1 interview instructions.

[QueenE 174]

Well of course

By the way, the USEM requires K-1'ers to bring evidence of a genuine relationship to their interview. The following is from the USEM's interview instructions:

REQUIRED DOCUMENTS. It is important that you submit ALL of the following documentation to facilitate the processing of your application.

~clip~

EVIDENCE OF A GENUINE ENGAGEMENT. You must be prepared to prove to the consular officer that you have a genuine relationship with your petitioner and a clear intention to marry within 90 days of admission into the U.S. In the past, successful applicants have submitted photographs, letters, e-mails, phone records, bank records, and remittance records as evidence supporting their relationships and intent to marry.

Link to USEM K-1 interview instructions.

[diavatirio 7]

This discussion has gotten too long and I feel like i have lost track of where the disagreement is. It started from a broad statement I made, saying essentially that USCIS has the final word on the bona fides of a relationship and explaining the benefits of front loading the initial petition, since the authority of consular officers is somewhat limited as per the state department cable.

I got an unsubstantiated response by Tahoma, that there is some sort of difference between spouse and fiance petitions with respect to who considers the evidence of a bona fide relationship. Vanessa and Tony correctly stated that I-130's require evidence of a bona-fide relationship - but that is a fairly recent thing not incorporated in law - as far as the law is concerned, USCIS has always been charged with determining the bona fides for both I-130 and I-129F petitions.

Celeste's next comment explained that the cable refers to petitions returned to USCIS - but a visa that results in a denial associated with the bona fides of a relationship normally results in a returned petition, so I am not sure i understand this comment.

Vanessa&Tony next explained the overall process once again, and I didn't see what it was that I said that conflicted their words.

On the following message Vanessa&Tony goes on and on with a tirade about my ignorance and naivety about the process based on me accidently calling a fiance petition an immigrant petition and how i don’t know what i am talking about. Hard not to take this personally, when I have a J.D. degree from a top school, was managing editor in the immigration law journal, have seen a number of petitions first hand and been researching immigration law for more than ten years.

Tahoma next writes a few things that appear to be generally in agreement with what i wrote. He writes that even if a petition is front loaded, new evidence may come out after the petition is submitted. This does not take into consideratino however that the red flags (age difference, no common language, and all the rest Ellis writes about) generally dont change with time. Finally he asks me to link to anyone whose K-1 petition was denied by the USCIS for failure to prove a bona fide relationship without the petition ever having reached the USEM level. Well i havent seen this happen either, and I don’t see how anything I said implies I should have.

In any case, i dont think there is any point in discussing any of this further. I don’t even see what the disagreement is anymore, and arguing for the sake of arguing is counterproductive.

Best wishes to all and good luck with the process.

[Tahoma 2,291]

Tahoma next writes a few things that appear to be generally in agreement with what i wrote. He writes that even if a petition is front loaded, new evidence may come out after the petition is submitted. This does not take into consideratino however that the red flags (age difference, no common language, and all the rest Ellis writes about) generally dont change with time. Finally he asks me to link to anyone whose K-1 petition was denied by the USCIS for failure to prove a bona fide relationship without the petition ever having reached the USEM level. Well i havent seen this happen either, and I don’t see how anything I said implies I should have.

Please don't twist my words. Where did I say that new evidence "may" come out after the petition is submitted? Here's what I said:

...it is impossible to make sure there is no new information when the beneficiary interviews at the Embassy.

...the Consular Officers will definitely have specific evidence which is unavailable to DHS at the time of petition approval. Where did you get the idea that they wouldn't?

...it's impossible for the USCIS to have all of the evidence when they initially adjudicate the petition because they only have the evidence from before the petition was submitted, and nothing from then until the Embassy interview.

Also, you can hedge your argument all you want by saying that red flags "generally" don't change over time. This demonstrates a lack of knowledge about the K-1 process. Red flags can and do change over time. An example of this is when a petitioner and a beneficiary have not visited each other for almost two years by the time the petition is filed with the USCIS. After the petition is filed, they visit each other two or three times. I'd say that's a pretty big change, not to mention it's new information.

Further, Ellis' article only focuses on a few obvious rudimentary examples of some potential red flags on the petitioner's side of things, and he says nothing about the beneficiary's red flags other than to acknowledge that there may be some. Additionally, you ignored my comment about the beneficiary's documents which are submitted at Embassy interview, and not the USCIS. Wouldn't all of these documents be new information? Please keep in mind that Ellis has a bias; he's trying to sell something. More disturbingly, he doesn't seem to know that, despite an approved K-1 petition's four-month validation period, the USEM routinely revalidates them for up to one year.

Finally, even though you don't want to give a straight answer, there's a very good reason why you haven't seen the USCIS deny a K-1 petition for failure to prove a bona fide relationship before it's been to the Embassy level...because it doesn't happen! If it did happen, a person with your bona fides would have no problem providing a single case where it did happen.

[QueenE 174]

Who cares? Calm down people and stop hijacking op's thread. This arguement is like the song that never ends

[Tahoma 2,291]

it says on the form that they did not have past the number of evidence.. We juz dnt get it coz if they didnt submit the required evidence then why did the service center not send them rfe or why did they get the approval?

Who cares? Calm down people and stop hijacking op's thread. This arguement is like the song that never ends

I care. The OP cares. The OP's friend who got denied cares. I'll bet the friend's fiancé cares. Isn't that enough for you?

I'm calm. Why are you getting upset over the discussion in this thread?

Why don't you read the OP's post above and tell me how this thread has been hijacked.

[QueenE 174]

The op cares about what is relevant to his case, not about what you said which is what this thread is turning into. Im not upset. Im not the one getting all hot and bothered on here and being hostile, but anyway keep it up... I dont even know why I engaged you this is obiviously a good time for you. Now Im being like you'll contributing a whole of nothing to op's situation. Keep it relevant or keep it moving.

I care. The OP cares. The OP's friend who got denied cares. I'll bet the friend's fiancé cares. Isn't that enough for you?

I'm calm. Why are you getting upset over the discussion in this thread?

Why don't you read the OP's post above and tell me how this thread has been hijacked.

[Tahoma 2,291]

The op cares about what is relevant to his case, not about what you said which is what this thread is turning into. Im not upset. Im not the one getting all hot and bothered on here and being hostile, but anyway keep it up... I dont even know why I engaged you this is obiviously a good time for you. Now Im being like you'll contributing a whole of nothing to op's situation. Keep it relevant or keep it moving.

I see you haven't noticed that everyone except you is discussing the reasons why the OP's friend could have gotten an RFE. Instead of discussing the issue, you've decided to anoint yourself the thread police. Since you are so bored and have nothing to contribute, why don't you go rant on some other thread.