K1 NOID's at California Service Center

[DebbyNSeyi 15]

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.

Thanks Marc...this whole process is truly intimidating and it helps when things are explained in laymen's terms to us plain ole folk.

But tell me this...you keep referring to the CSC. Would this process also apply to the way the VSC processes returned K1's?

[ScottThuy 140]

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.

Jim,

I am reading the "good thing" as the fact that CSC is almost quoting the CO in the NOID and that will give the petitioner the ability to address the issue straightaway rather than rolling the dice and hoping they addressed it. So instead of just letting it die and saying try again blindly, they are essentially saying pay the fee again and we will tell you what you did wrong last time...

[Alan-and-Ira 1]

Great post, Thank you a lot!

[ellis-island 6]

This thread probably needs to be referenced to the Tran v. Napolitano class action thread.

Because if Brent Rennison wins that case, California Service Center's policy on reviewing K1's

will change. And consular policies of returning K1 petitions would change as well.

[Always+Forever 7]

ok...sorry to sound like the broken record, but i want to be sure. So...if u get a 221(g) refusal & your case is returned to USCIS through CSC...u pretty much have no choice but to refile the K1 or get married & do CR1? From the sounds of this, it looks like there is no way to get a reaffirmation from my 1st K1 petition through CSC. PLEASE correct me if i'm wrong. And is it true that you can't get a NOID from CSC without filing another petition? Is there any way to request the NOID or another way to find out the real reason for denial? And finally, Can u refile a K1 before the 1st expires? If not, what should be done with the 1st petition? Is it better to wait till it expires (what is the max mths of validity?) or withdraw the petition? I have 8 mths before I would be able to go back to get married, so I'm trying to see if I can do anything with a K1 instead. Any thoughts r welcome.

Monica

[ellis-island 6]

ok...sorry to sound like the broken record, but i want to be sure. So...if u get a 221(g) refusal & your case is returned to USCIS through CSC...u pretty much have no choice but to refile the K1 or get married & do CR1? From the sounds of this, it looks like there is no way to get a reaffirmation from my 1st K1 petition through CSC. PLEASE correct me if i'm wrong. And is it true that you can't get a NOID from CSC without filing another petition? Is there any way to request the NOID or another way to find out the real reason for denial? And finally, Can u refile a K1 before the 1st expires? If not, what should be done with the 1st petition? Is it better to wait till it expires (what is the max mths of validity?) or withdraw the petition? I have 8 mths before I would be able to go back to get married, so I'm trying to see if I can do anything with a K1 instead. Any thoughts r welcome.

Monica

As it stood before Tran versus Napolitano, CSC sends an expiration notice. Consulates administratively close

the file. The Tran class action looks to force CSC to review the cases within thirty days. Essentially,

it's up in the air what will happen now. All bets are off.

It probably won't change until this case is decided. But I could be wrong. Several of us almost sued them last

year in a class action on the same issue. CSC & DOS changed before we could file our complaint.

Note -- I think CSC are the 'good guys' here. Class action lawsuits

should not be necessary. What is happening basically, is DHS is getting

sued for the Department of State's incompetence.

Edited June 30, 2010 by ellis-island

[Always+Forever 7]

As it stood before Tran versus Napolitano, CSC sends an expiration notice. Consulates administratively close

the file. The Tran class action looks to force CSC to review the cases within thirty days. Essentially,

it's up in the air what will happen now. All bets are off.

It probably won't change until this case is decided. But I could be wrong. Several of us almost sued them last

year in a class action on the same issue. CSC & DOS changed before we could file our complaint.

Note -- I think CSC are the 'good guys' here. Class action lawsuits

should not be necessary. What is happening basically, is DHS is getting

sued for the Department of State's incompetence.

Looks like CSC may be changing...Here's the exact info from CSC that my Senator's office received:

"9/9/2010

I just received the above file and forwarded it to our adjudications unit for review. I will send you an update when the review is complete. Thank you...."

Then I received an email that my case was updated with USCIS:

Post Decision Activity

We reopened this I129F PETITION FOR FIANCE(E) on September 13, 2010, and are now reviewing our earlier decision. We also mailed you a notice describing the next steps in the process. Please follow any instructions on this notice. Our review should be completed within 30 days. We will notify you by mail when we make a decision or if we need 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 or call our customer service center at 1-800-375-5283.

For approved applications/petitions, post-decision activity may include USCIS sending notification of the approved application/petition to the National Visa Center or the Department of State. For denied applications/petitions, post-decision activity may include the processing of an appeal and/or motions to reopen or reconsider and revocations.

Has anyone else received anything like this? For more info on our csae see below. Hope everyone is having a smooth journey. I believe it is also important to note my Senator's office involvement has been very strong in our case. Its seems like not so many are. I think that may make a huge difference also.

Monica

[bridget and alen 0]

Looks like CSC may be changing...Here's the exact info from CSC that my Senator's office received:

"9/9/2010

I just received the above file and forwarded it to our adjudications unit for review. I will send you an update when the review is complete. Thank you...."

Then I received an email that my case was updated with USCIS:

Post Decision Activity

We reopened this I129F PETITION FOR FIANCE(E) on September 13, 2010, and are now reviewing our earlier decision. We also mailed you a notice describing the next steps in the process. Please follow any instructions on this notice. Our review should be completed within 30 days. We will notify you by mail when we make a decision or if we need 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 or call our customer service center at 1-800-375-5283.

For approved applications/petitions, post-decision activity may include USCIS sending notification of the approved application/petition to the National Visa Center or the Department of State. For denied applications/petitions, post-decision activity may include the processing of an appeal and/or motions to reopen or reconsider and revocations.

Has anyone else received anything like this? For more info on our csae see below. Hope everyone is having a smooth journey. I believe it is also important to note my Senator's office involvement has been very strong in our case. Its seems like not so many are. I think that may make a huge difference also.

Monica

MONICA,I LIKE YOU FIND THIS CONFUSING. We my fiance was sent a letter from the consulate sayin we were denied and our case would be sent back. we emailed a request that a senoir officer review our case before it was sent back . As of june our case was denied and has never been sent back . uscis still says it isunder ap. And the consulate doesnt respond to our emails. I have no idea how long the consulate can sit on it before they send it back.we got our notice of denial in may saying we had one year to respond. I have no idea what to do. Should we refile or what our case has been . I have no idea if they will send it back or what.

[articslayer 0]

My friend just had this happen. He has till April 7th 2011 to reply. The kicker is that new evidence was given in the "Intent to Deny" that was not known in the first visa application. This evidence is very bad. I filed both of his I-129F's for him. BUT this really puts me in a bad situation. I tried to get answers why the first application was denied and it took me a lot longer than 30 days. I also re-filed according to the instructions from Chris Poulos. Because there was no indication of anything but a "Expired Application".... soooooooo here we are now three years later and the second application didn't even make it to the consulate before it was squashed!!! I'm in the process of filing a FOIA to get any evidence I can to try and stop this "Intent to Deny" from killing his current visa application. I really don't have much hope at this point. But, I am filing a responce to the Intent to Deny just try and keep the case open till I can get more information... Thanks all and great read ellis-island

[NigeriaorBust 4,087]

Ellis Island is the VJ account of immigration lawyer Marc Ellis. The man lives to do battle with immigration over wrongly denied petitions.

[articslayer 0]

Ellis Island is the VJ account of immigration lawyer Marc Ellis. The man lives to do battle with immigration over wrongly denied petitions.

Thanks and yes I know about his battles. I have been reading for over 5 days now and I feel that with his info I can wage a formidable battle also... I pray!

Thank you all at VJ for all the help.. not only here but for my visa also as I was a former member that seeked help here before. With all your help my wife and I are here in Alaska. She is from Argentina. Thanks again, John and Nora Scott

[ellis-island 6]

The bad news is Tran v. Napolitano was dismissed on March 29, 2011.

Good news? I talked to Brent. He said he'd always planned to have to win this on appeal.

What does this mean?

It means the current system will continue for the future. K1's will expire.

Petitioners will have to marry or re-file a K-1 with an IMBRA Multiple Petition Limit waiver.

To me, the worst part of this dismissal is the Judge did not directly address the p6c1 issue.

The court simply ruled that plaintiffs had not shown they were damaged by this weird procedure

of creating misrepresentation findings out of thin air.

I think the p6c issue is still to be resolved. It's a class-action by itself.

As soon as I get a link to the decision that is outside AILA Info-Net, I'll post it.

For those who do not know about p6c's. http://www.ilw.com/articles/2010,0713-ellis.shtm

Edited April 5, 2011 by ellis-island

[ellis-island 6]

Oops. I should say I exchanged emails on this with Brent. I haven't talked with him on the suit recently.

Edited April 5, 2011 by ellis-island

[TBoneTX 45,319]

Bad news, but thanks for the update. What are the chances on appeal, would you surmise?

[ellis-island 6]

Bad news, but thanks for the update. What are the chances on appeal, would you surmise?

Brent said he'd always thought he'd have to win it on appeal.

At least he's in the best possible circuit to hear it.

Right now, the procedure is better than it was two years ago, when people had to wait

up to seven years to have an expired K1 reviewed. Brent is seeking to get 30 day review.

I'd think the p6c1 thing won't stand even rational scrutiny, if the 9th Circuit goes past

the standing issue.

The issue of prompt review & expiration of K1 approvals is something different.

Agencies have a lot of power to write regulations that give effect to statutes.

The expiration is (Brent is correct) purely regulatory, not statutory.

Bottom line: I don't know what the 9th Circuit will do. But I'm happy he's in the 9th Circuit.

And I pray they get past the standing issue on the p6c issue.