K1 NOID's at California Service Center

[ellis-island 6]

Hi. This is a 'head's up' to any petitioners who have filed a second K1 petition

after their loved one's first visa application was refused at the consulate.

I have some news for you. Recently, I saw a K1 NOID from CSC

that was different from what I've seen in the past.

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 the petitioner could refile and pay a fee.

So petitioner refiled and paid the fee. Then, before approving the new K1 petition,

CSC sent petitioner an NOID, (Notice of Intent to Deny). And it required a response

within 30 days.

Here is the interesting part, the allegations in the NOID came from the

previous consular interview, not from the new petition filing.

So, CSC had pulled the previous K1 petition file and quoted the consular officer's

reasons for denying the previous K1 visa application. But CSC had done this in the context

of approving a new petition.

Remember, the new petition has a 2010 case number.

The old petition had a 2009 case number. It had already been approved

& had expired. So CSC here was using the 2009 reasons to justify

denying the 2010 petition.

The old 2009 K1 petition and the consular memorandum were not

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

never happening.

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. It hasn't even been

sent to NVC yet.

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.

I'm sure a lot of veteran VJ forumites can figure it out too.

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 the futures of

so many couples.

I'll get to that in the next post.

[ellis-island 6]

There's a trap for the unwary here.

9 FAM 40.63 N10 MISCELLANEOUS

9 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―Visas

9 FAM 40.63 Notes Page 25 of 29

Pursuant to 8 CFR 205, invalidation of a labor certification for

fraud in accordance with the instructions of USCIS or the

Department of State automatically revokes an employment-based

immigrant visa (IV) petition. On the other hand,

USCIS retains exclusive authority to disapprove or revoke

family-relationship IV petitions. Thus, a misrepresentation

with respect to entitlement to status under a family relationship

petition, e.g., document fraud, sham marriage or

divorce, etc., cannot be deemed material as long as the

petition is valid. Upon discovery of a misrepresentation, you

must return the petition to the appropriate USCIS office. If

the petition is revoked, the materiality of the

misrepresentation 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 just-plain wrong. That fraud marker

is still hanging there over your beneficiary's future. It's called a P6C marker.

And it will 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 written in the NOIR mirror those written

by the consulate. It's unfortunate that CSC doesn't seem to stop

and measure the legal or factual sufficiency of consular conclusions.

But I'll take whatever I can get. CSC's failure to measure legal or factual

sufficiency makes these things much easier to win and puts routine consular

ineptitude under a magnifying glass for DHS adjudicators and supervisors to

closely examine.

But beware -- if the petitioner does not succeed in defeating that NOIR and

proving the consulate wrong, those half-baked conclusions contained in the consular

in the consular return memorandum become findings of facts by USCIS. You don't

want that to happen.

The last words of that section of the FAM I quoted are deadly.

"....If the petition is revoked, the materiality of the misrepresentation is established.

That means the fraud marker placed in your loved one's file has become a hard finding

of fraud. 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 appears to

no longer be 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.

[Rebecca Jo 1,962]

Glad to see you still around.

Thanks.

[Otto 83]

"VJ forumites" Word of the Day Award Nomination and definitely Post of the Day. Thanks.

So when you say "If you're filing a second K1, make sure you respond in advance to the reasons the consulate refused the first visa application." - What's the suggested/best-practice way you'd suggest? (Something like a copy of the NOID/R and supporting evidence to overcome the reason? And would this be sent with the new petition?) ~ It comes up now and then around here.

But DOS kept flaying away until last summer. It pretended the 120 day life period of K1 approvals did not exist.

Why do you suppose they (DOS) would even do this? Inter-agency rivalry?

[TracyTN 237]

Very interesting read - thank you. There's a recent thread here (see below) where the K1 was denied at interview for just that reason - invalidation of a labor certification. It didn't make any sense to us. Honestly it still doesn't even after reading your post. I get that they're saying it's essentially a misrep, but why the language about labor certification on a family based visa?

Either way it doesn't sound too great for the couple in the thread.

http://www.visajourney.com/forums/index.ph...244418&st=0

[ellis-island 6]

"VJ forumites" Word of the Day Award Nomination and definitely Post of the Day. Thanks.

So when you say "If you're filing a second K1, make sure you respond in advance to the reasons the consulate refused the first visa application." - What's the suggested/best-practice way you'd suggest? (Something like a copy of the NOID/R and supporting evidence to overcome the reason? And would this be sent with the new petition?) ~ It comes up now and then around here.

Why do you suppose they (DOS) would even do this? Inter-agency rivalry?

(1). Conduct a background check on yourself. See who the database shows is living in your home.

See who it shows is sharing assets or debts with you. If the DB is wrong, point that out in your filing.

Ditto for your beneficiary. Make sure you know where he or she is living & where the ex is living, if there is an ex.

Beyond that, peruse the various lists of red flags that are out there. I published one. There are other good ones

around as well. See if there are other red flags you may have missed.

Why do you suppose they (DOS) would even do this? Inter-agency rivalry?

The ways of DOS are myriad and mysterious. It's not for me to speculate as to why the visa gurus in

Foggy Bottom decide to do something one way or another.

It's my job to observe what they do and make careful notes. At some point, a consulate will have to put it's reasons for refusing

a visa in writing. When that happens, the entire reasoning and administrative process that led to that decision opens itself

up to closer examination, by DHS* and if necessary, by the courts.

*There shouldn't be any inter-agency rivalry anymore. DHS is in charge of the consular visa process.

DOS may not know that. DHS may not have noticed. But that's been the law since 2002.

DHS is in charge of visa issuance. I'm not sure why that agency hasn't gotten around to actually taking charge

of the process. Eventually it will. Put it in the bank.

(See sections 402 & 428) http://www.dhs.gov/xlibrary/assets/hr_5005_enr.pdf

Very interesting read - thank you. There's a recent thread here (see below) where the K1 was denied at interview for just that reason - invalidation of a labor certification. It didn't make any sense to us. Honestly it still doesn't even after reading your post. I get that they're saying it's essentially a misrep, but why the language about labor certification on a family based visa?

Either way it doesn't sound too great for the couple in the thread.

http://www.visajourney.com/forums/index.ph...244418&st=0

Concerning the labor-certification rationale for a family visa refusal, a consular officer in Guangzhou wrote:

Visa Officer Marc Cook: 212(a)(5)(A) is a proper ground of refusal for IV applicants who are determined not to be eligible for the IV category under which they have applied. For example, it is used to refuse family-based IV applicants when it is determined that the requisite family relationship does not exist (e.g., a marriage to circumvent immigration law, or DNA tests establish lack of paternity/maternity). A 212(a)(5)(A) refusal is appropriate in these cases because, once the alien no longer falls within a family-based IV category, the alien is no longer exempt from the labor certification requirement that would otherwise normally apply to immigrant applicants.

http://guangzhou-ch.usembassy-china.org.cn...cript081217.doc

So DOS uses 212(a)(5)(A) as a ground to refuse a family or K1 visa. It doesn't seem logical. But make a note

of it and save it for future reference. In my experience, these are not fatal. They are somewhat analogous to 221(g)

refusals and they can eventually be overcome.

[TBoneTX 45,047]

Conduct a background check on yourself. See who the database shows is living in your home. See who it shows is sharing assets or debts with you. If the DB is wrong, point that out in your filing.

How does one attain access to the contents of the database -- FOIA request? Other? What if items in the database are "classified" or are otherwise ineligible for release?

[Darnell 8,478]

How does one attain access to the contents of the database -- FOIA request? Other? What if items in the database are "classified" or are otherwise ineligible for release?

Hey Si Man - http://www.usaimmigrationattorney.com/Secu...tiveReview.html

That's mostly 'current' -

fwiw, it's not one database - but there is a commercial service (the link escapes me) that can run a background check on ya - the same one an employer can run without 'security checks that the FBI might do'.

[Darnell 8,478]

(1). Conduct a background check on yourself. See who the database shows is living in your home.

See who it shows is sharing assets or debts with you. If the DB is wrong, point that out in your filing.

Hey Marc - good on ya for checking in ...

for those of you who don't know of Marc - he's an immigration attorney specializing in petitions filed to Guangzhou and HoChiMin - and has vast experience in assisting petitioners with overcoming blue slips, white slips, and initial prep for red flag issues. Many ppl speak highly of his work, and the work he's done for them.

[morocco4ever 63]

So in a nutshell you address the reason for the initial denial with your response to the NOID. If it is approved at the service center then this will prevent it from being denied for the same reason once it is at the consulate?

[ellis-island 6]

So in a nutshell you address the reason for the initial denial with your response to the NOID. If it is approved at the service center then this will prevent it from being denied for the same reason once it is at the consulate?

Consulates are supposed to follow their own regulations.

Assuming the section chief is actually aware of the reg, he or she

is required to follow it.

9 FAM 42.43 N2.1 "Reason to Believe"

U.S. Department of State Foreign Affairs Manual Volume 9 - Visas

9 FAM 42.43 Notes Page 2 of 7

(CT:VISA-872; 03-23-2007)

In general, knowledge and reason to believe must be based upon evidence

that USCIS did not have available at the time of adjudication and that such

evidence, if available, would have resulted in the petition being denied. This

evidence often arises as a result of or during the interview of the beneficiary.

Reason to believe must be more than mere conjecture or speculation—there

must exist the probability, supported by evidence, that the alien is not

entitled to status.

[TracyTN 237]

Concerning the labor-certification rationale for a family visa refusal, a consular officer in Guangzhou wrote:

http://guangzhou-ch.usembassy-china.org.cn...cript081217.doc

So DOS uses 212(a)(5)(A) as a ground to refuse a family or K1 visa. It doesn't seem logical. But make a note

of it and save it for future reference. In my experience, these are not fatal. They are somewhat analogous to 221(g)

refusals and they can eventually be overcome.

Great - thank you!

[JimVaPhuong 4,863]

Hi Marc.

I was always under the impression that when CSC said "Your petition has expired. You can file again." that it was a good thing. I figured that meant you didn't have to worry about responding to a NOID for the first petition, and could just go ahead and file a new petition, this time armed with the knowledge of why the first petition didn't succeed at the consulate.

So, consulates were actually sitting on the second petition waiting for USCIS to make a decision on the first petition, even after USCIS had told the petitioner that the first petition was expired and dead? Or, were consulates only sitting on the second petition if the first petition hadn't been laid to rest yet by USCIS? I'm just trying to wrap my head around why it's good thing that the first petition will come back to haunt you when you file the second petition, even though USCIS told you the first petition was dead.

[LEX355 0]

Thanks for ur posting..my is compilcated.after we were put on AP, a home investgation was made by CO and after my fiancee was invited back to the consulate and she was not re interviewed and was given the blue paper which said that our relationship was a sham and for immigration purposes.so how do u over come this kind of situtation..what kind of proof do u send in to validate ur relationship.

[Kikibearylala 2]

There's a trap for the unwary here.

***

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 just-plain wrong. That fraud marker

is still hanging there over your beneficiary's future. It's called a P6C marker.

And it will 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 written in the NOIR mirror those written

by the consulate. It's unfortunate that CSC doesn't seem to stop

and measure the legal or factual sufficiency of consular conclusions.

But I'll take whatever I can get. CSC's failure to measure legal or factual

sufficiency makes these things much easier to win and puts routine consular

ineptitude under a magnifying glass for DHS adjudicators and supervisors to

closely examine.

But beware -- if the petitioner does not succeed in defeating that NOIR and

proving the consulate wrong, those half-baked conclusions contained in the consular

in the consular return memorandum become findings of facts by USCIS. You don't

want that to happen.

The last words of that section of the FAM I quoted are deadly.

That means the fraud marker placed in your loved one's file has become a hard finding

of fraud. 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 appears to

no longer be 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.

thank you for this!!its very informative..