K1 denial? how long before filing for a CR1 spouse

[Sandy36 1]

Does anyone know how long I should wait to file for a CR1 after being denied for a fiance K1 visa? Is there a waiting period or do I need to submit any form to USCIS before I began the spouse visa? please let me know because i have to start looking at my options and getting married overseas.

[payxibka 10,045]

Does anyone know how long I should wait to file for a CR1 after being denied for a fiance K1 visa? Is there a waiting period or do I need to submit any form to USCIS before I began the spouse visa? please let me know because i have to start looking at my options and getting married overseas.

you can submit as soon as you are eligible to do so and have all the needed documents

[Sandy36 1]

you can submit as soon as you are eligible to do so and have all the needed documents

Do i have to submit a waiver to immigration to remove the k1 Visa?

[payxibka 10,045]

Do i have to submit a waiver to immigration to remove the k1 Visa?

no, if the K-1 is refused then it is refused and the petition case file will be closed.... The I-130 petition is not subject to any multiple petition limitations.

[FrancElsie 6]

Does anyone know how long I should wait to file for a CR1 after being denied for a fiance K1 visa? Is there a waiting period or do I need to submit any form to USCIS before I began the spouse visa? please let me know because i have to start looking at my options and getting married overseas.

Hello Sandy 36: As stated by others on this forum...you can apply as soon as you are eligible. However, what makes you think your fiance will be approved for a spousal K-3 visa???????? Most likely the reasons for the denial have not changed...just something for you to think about.

Best Wishes,

Franc

[JimVaPhuong 4,863]

no, if the K-1 is refused then it is refused and the petition case file will be closed.... The I-130 petition is not subject to any multiple petition limitations.

Caveat: If the K1 was denied at the consulate, but USCIS has not made a decision yet, then the petition is not yet dead. Filing an I-130 may not necessarily kill it, either. Apparently, there are people who've received NOID's on a returned K1 petition, and ignored them because they'd already filed a CR1 petition. Failure to respond to the NOID caused a P6C finding against the beneficiary (material misrepresentation). When they showed up for their CR1 interview they were told they were inadmissible due to the finding of fraud, their visa was denied, and they had to try to get a hardship waiver to overcome it.

The new CSC tactic described in the pinned topic by Marc Ellis could also conceivably be applied to a CR1 petition filed after a K1 petition was returned to USCIS. In those cases, CSC even SAID the K1 petition was dead, and still used it as a basis for a NOID on a subsequently filed petition.

There's certainly no danger in filing a CR1 petition after a K1 visa has been denied at the consulate. There may, however, be danger in presuming a K1 petition is dead. If you get a NOID then you must respond to it, even if it's for the original K1 petition. If you don't then you're inviting USCIS to conclude that the CO's accusation was true.

[Audy_Rob 26]

Caveat: If the K1 was denied at the consulate, but USCIS has not made a decision yet, then the petition is not yet dead. Filing an I-130 may not necessarily kill it, either. Apparently, there are people who've received NOID's on a returned K1 petition, and ignored them because they'd already filed a CR1 petition. Failure to respond to the NOID caused a P6C finding against the beneficiary (material misrepresentation). When they showed up for their CR1 interview they were told they were inadmissible due to the finding of fraud, their visa was denied, and they had to try to get a hardship waiver to overcome it.

The new CSC tactic described in the pinned topic by Marc Ellis could also conceivably be applied to a CR1 petition filed after a K1 petition was returned to USCIS. In those cases, CSC even SAID the K1 petition was dead, and still used it as a basis for a NOID on a subsequently filed petition.

There's certainly no danger in filing a CR1 petition after a K1 visa has been denied at the consulate. There may, however, be danger in presuming a K1 petition is dead. If you get a NOID then you must respond to it, even if it's for the original K1 petition. If you don't then you're inviting USCIS to conclude that the CO's accusation was true.

Agreed. However if the Ki is denied, he/she can file the new petition.

The problem is "if the USCIS issues a NOID, then you must respond to that NOID." Does a response such as No Contest or Do not wish to pursue keep you from receiving a finding of misrepresentation?

It sounds like you are saying you must vigorously defend against the NOID to the satisfaction of USCIS that you do not receive the finding of misrepresentation or fraud.

Will ALL "no responses" to an NOID result in a finding of misrepresentation or fraud? Is there a clean way to quickly squash the first petition after visa denial so you can go on to the second petition?

Thanks much.

[JimVaPhuong 4,863]

Agreed. However if the Ki is denied, he/she can file the new petition.

The problem is "if the USCIS issues a NOID, then you must respond to that NOID." Does a response such as No Contest or Do not wish to pursue keep you from receiving a finding of misrepresentation?

It sounds like you are saying you must vigorously defend against the NOID to the satisfaction of USCIS that you do not receive the finding of misrepresentation or fraud.

Will ALL "no responses" to an NOID result in a finding of misrepresentation or fraud? Is there a clean way to quickly squash the first petition after visa denial so you can go on to the second petition?

Thanks much.

The answer to the bolded part is no, it depends on the reason for the visa denial. Assuming the visa was not denied for an inadmissibility, the most common reason for a consulate to use when denying a visa is "sham relationship for the purpose of evading immigration law". This constitutes an accusation by the CO that the beneficiary is lying about their relationship. The accusation is a time bomb. According to Marc, it sits in the beneficiary's file as a "P6C marker", referring to INA section 212, paragraph 6C, which deals with misrepresentation.

At the point that USCIS receives the petition from the consulate, the accusation is just that - an accusation. Whether it becomes anything else depends on what USCIS decides to do with it. If they reaffirm the approval of the petition, then they are discarding the accusation, essentially saying they don't buy the CO's argument. CSC had a habit of just letting the petition approval expire so they wouldn't have to deal with adjudicating the CO's accusation. Lately, they've been resurrecting those expired petitions and using the CO's denial as a basis for a NOID on the second petition, actually quoting the CO's reason for denying the first visa as a basis for the NOID on the second petition.

However it happens, if you get a NOID and don't respond to it, or if you respond and USCIS isn't satisfied and either denies the second petition or revokes the approval of the first petition, then the P6C marker becomes a "finding of fact" - the beneficiary is guilty of material misrepresentation - an inadmissibility that requires a waiver. A response of "no contest", "No intention to pursue", or anything else that does not rebut the CO's accusation will still result in the finding of fact being entered. Withdrawing the petition after the NOID is issued would have the same effect as not rebutting the NOID.

If the NOID is issued against the second petition, then you must successfully rebut the NOID in order to save the petition. If the NOID is issued against the first petition, then you still must rebut, but after the petition is reaffirmed it will either be administratively closed because the petitioner is now married to the beneficiary, or the petitioner can simply withdraw the petition and USCIS will close it. The point is that when that first petition dies it must be either because USCIS just let it expire, or because they reaffirmed it and then administratively closed it. If it dies because USCIS revoked the approval, then the beneficiary is facing some problems at the second interview.

I don't know of any sure fire way to force that first petition to go away. It dies when USCIS decides that it dies. Once a petition has been returned, if the petitioner wishes to continue to pursue the relationship, I think they should be prepared to respond with evidence in case they end up getting a NOID.

[Sandy36 1]

Thank you for all your responses. I'm just trying to look at my options in case the CO in Haiti does not accept my evidence for approval. the case is on pending status after they had requested for more pictures so I'm still waiting. If I don't get approve then I'll have to go and get married there and I know the process will be much longer and irritating. Where do I get the noid from in order to have USCIS close it so it doesn't affect the CR1?

[pushbrk 12,882]

In these situations, when filing an I-130 prior to hearing from USCIS about the I-129F, I suggest including an I-129F withdrawal letter with the I-130 filing. I've seen it work just fine in a California case.

[sachinky 465]

Why was your K-1 denied, btw?

[Sandy36 1]

Why was your K-1 denied, btw?

the K1 is not denied but has been under review for the past few days after the CO requested more pictures. She didn't like the ones we previously handed to her because they weren't intimate enough. My fiance answered all her questions but she requested more pictures. He brought more pictures now he's home waiting for a phone call. not sure when they're going to call and give a decision.

[Audy_Rob 26]

the K1 is not denied but has been under review for the past few days after the CO requested more pictures. She didn't like the ones we previously handed to her because they weren't intimate enough. My fiance answered all her questions but she requested more pictures. He brought more pictures now he's home waiting for a phone call. not sure when they're going to call and give a decision.

Absolutely. You haven't been denied yet. Be positive and hang in there. If they haven't denied you, you can't go and file again. They just wanted more photos.

Good luck.

[Darnell 8,478]

Caveat: If the K1 was denied at the consulate, but USCIS has not made a decision yet, then the petition is not yet dead. Filing an I-130 may not necessarily kill it, either. Apparently, there are people who've received NOID's on a returned K1 petition, and ignored them because they'd already filed a CR1 petition. Failure to respond to the NOID caused a P6C finding against the beneficiary (material misrepresentation). When they showed up for their CR1 interview they were told they were inadmissible due to the finding of fraud, their visa was denied, and they had to try to get a hardship waiver to overcome it.

The new CSC tactic described in the pinned topic by Marc Ellis could also conceivably be applied to a CR1 petition filed after a K1 petition was returned to USCIS. In those cases, CSC even SAID the K1 petition was dead, and still used it as a basis for a NOID on a subsequently filed petition.

There's certainly no danger in filing a CR1 petition after a K1 visa has been denied at the consulate. There may, however, be danger in presuming a K1 petition is dead. If you get a NOID then you must respond to it, even if it's for the original K1 petition. If you don't then you're inviting USCIS to conclude that the CO's accusation was true.

To add some more -

If you are serious to go to Haiti, get married, and file the I-130 -

then send of a letter to USCIS and US Embassy Haiti to WITHDRAW THE I-129F PETITION, on or about the same day that you file for the I-130. This will clear up any silliness that might linger ..