The appeal is dismissed

[Wander 0]

My fiance and I had filed K1 visa and later we got denied and at that time I just knew that his divorce wasn't final. Then we made the appeal and my fiance got this later , dated on August 30,2007

on 1st page :

This is the decision of the AAO in your case. All documents have been returned to the office that originally decided your case. ANy further inquiry must be made the that office.

On the last paragrah, it said

The denial of this petition is without prejudice. The petitioner may file a new form I-129F petion on the beneficiary's behalf in accordance with the statutory requirements. The burden of proof in these proceedings rests solely with the peitioner. Section 29... The petioner has not met the burden.

Order : The appeal is dismissed

-----------------------------------------

and on the same day I recevied the email :

The last processing action taken on your case

>

> Receipt Number: WACXXXXXX

>

> Application Type: I129F , PETITION FOR FIANCE(E)

>

> Current Status: This case is now pending at the office to which it was transferred.

>

> The I129F PETITION FOR FIANCE(E) was transferred and is now pending standard processing at a USCIS office. You will be notified by mail when a decision is made, or if the office needs something from you. If you move while this case is pending, please use our Change of Address online tool to update your case with your new address. We process cases in the order we receive them. You can use our processing dates to estimate when this case will be done, counting from when USCIS received it. Follow the link below to check processing dates. You can also receive automatic e-mail updates as we process your case. To receive e-mail updates, follow the link below to register.

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and I asked him to call USCIS, the operator said that dismissed means denied ,we should refile the application and he said that I can refile now but my question is why i got the email that it is said ''pending'' and how can I refile if i still don't receive the decision letter from USCIS. I'm afraid that if i refile , there will be a duplicate document. and the operator also said that on the internet is not up to date. I'm very curiuos because after Aug 30,07. I got touched 4 times, the last time is on April 24,2008

Any suggestions?

Thank you

[Sylvia_n_Joseph 3]

You both must be legally free to marry WHEN the k1 is filed. If either of you weren't divorced then the petition gets denied. Without prejudice means there is nothing bad in your files that will impact your next petition when you are both free to marry. However you have to pay new fees and wait all over.

[emt103c 10]

Is his divorce now final? and Was his divorce in progress when you filed the first time.

There is a really good article floating around this site and a the Family Based Imm. site about denial of fiance visas and their affect on future adjudications. Based on that article, there is a chance that you will have to file a waiver for Misrepresentation because a part of the fiance paperwork is whether or not the petitioner and beneficiary are both "free" to marry. If you were stating that you both were, and you weren't you will either need to prove that you were BOTH unaware that the divorce was not final, or you will possibly have to file a waiver if the consular officer choses to treat this as a misrepresentation.

In the meantime, you probably want to consult an attorney, but your best bet seems to be refiling the petition once the divorce is completely final, and to plan to bring proof of why there was a mistake about the original finality of the divorce.

[LadyJane 1]

Depending on the speed of the consulate in granting interviews and other factors, it may be advantageous to go down the CR1 route. But, you'll need to get married first.

You'll need to include evidence of divorce in the I-130: so you'll need to submit a divorce decree with the paperwork. It may be a good idea to include a copy of the divorce decree regardless of what path you decide, and I'd suggest writing a brief letter to include with your petition that states your previous denial of visa (without prejudice) and now you are including evidence that you are both free to marry. And, I agree with everything emt said-be prepared to include evidence that you both thought the divorce was final.

Good luck!

[Wander 0]

Yes, his final divorce was on January 3,2007

Thank you very much for every suggestions

[blueblue 0]

I wonder why you would spend time and money on an appeal for a denied K-1 where your fiance's divorce was not final yet. Seems there is no question of the facts nor of the law. What was the basis for the appeal?

Nevertheless, as the AAO said, the denial doesn't prejudice you from filing again. Either another I-129F for K1 or getting married and then filing I-130/I-129F for K3/CR1.

The letter EMC was referring to likely doesn't apply in your case. That letter, if I am thinking of the same one, referred to petitions that were returned where the CO accused the couple of fraud marriage/relationship. In that case, the OP would need to respond to any NOID to avoid a potential misrep charge where CO prematurely enters that in the system even though it is based only on an accusation.

You will likely however, have to deal with IMBRA, where another I-129F filed by same petitioner. Not a big deal, but just another step in the process and again, per attorney Marc Ellis, a misinterpretation. It is supposed to only apply when it is a different beneficiary, not the same one.

Anyway, you might want to consult with an attorney to answer any questions you have and make sure you have all your documents properly prepared this time. But go for it.

[emt103c 10]

You will likely however, have to deal with IMBRA, where another I-129F filed by same petitioner. Not a big deal, but just another step in the process and again, per attorney Marc Ellis, a misinterpretation. It is supposed to only apply when it is a different beneficiary, not the same one.

I filed two I-129F's for the same person, years apart. . .I sent the letter explaining why and they approved it without asking for any further information.

[*JG* 2]

Fees went up a lot since the last time you filed.

Good luck in the future.

[Wander 0]

What is EMC ? What was the basis of appeal? you mean why we sent the appeal,rite? hm...it's my fiance decision, I didn't know that we shouldn't. If I could turn back time, I think I should post the topic in this forum first. We really wasted time and money as you said.

Anyway Thank you again for all suggestions and supports.

[LadyJane 1]

I think we meant the poster emt