HCMC Keep the big picture in mind

[BinhJerome 14]

If the evidence is included in the petition package; i.e., "frontloaded", and the petition is approved, then the consular officer has little authority to challenge it. If it's submitted after the petition is approved then he can challenge it any way he sees fit. He can openly accuse the beneficiary and/or petitioner of outright fraud, and declare the evidence to be fake, regardless of how much additional evidence you provide. It doesn't matter if your evidence is placed in the case file because the consular officer has the discretion to determine how much weight to give to the evidence. The consular officer is not bound by the presumption that the evidence is valid, which he would be if the evidence had been screened and approved by USCIS.

Jim, you are basing this on what? The fact is that even if it is in the petition when you file, this does not make it a truth, it does not force them any more than having it submitted after the interview. I know this from my personal case, we had photos of our engagement ceremony with the front and rear shot with over 100 guests in the photos, and that was still one of the reasons for denial. The fact is that I feel you are basing frontloading on the assumption that if it is in there prior to the CO getting it that they cannot deny you for that reason. This is a false hope. My friend who is a current CO in HCMC even agrees with this because they don’t have to accept ANY front loaded evidence, and in fact they only use what was submitted to ask questions, but they do not consider it fact, it is just as I have said, “more ammo for them to use.” What is required for the initial petition is just that, proof that you are eligible to “FILE” for a petition, and that is what happens, when they deem you eligible to proceed with the petition it is approved, and that is where it stops, they cannot approve a visa, just as the CO cannot actually deny your visa. This is because of the previous lawsuits. What they base their “request for denial” on is the interview, and what investigation the CO has had initiated, and nothing more, then when it goes back to the US they do not look at what you filed with your petition, they look at what the CO has submitted, and then based on that information they will reaffirm/deny/let expire. This is what I was told through my lawyer, not just things I am grabbing from he said she said, this is my personal experience. So to try and justify front loading stating that the CO cannot use those reasons you addressed against you is very untrue, as well as unfounded. Maybe the CO accepts it as truth, maybe not, again the guessing game, but one thing is for sure, what you submit they will have and then be able to use in the interview (ammunition against you) This will likely be a long running debate with conflicting points of view, but in my personal experience and what was told to me completely contradicts your above statements. To make my point, how can the CO have said our engagement ceremony was small and inconsequential when they had 3 specific photos with Binh and me, and in the background 100 guests? Why did they outright call her out on it? How could that be one of the reasons for denial? We frontloaded those photos, and based on your assumption they should not have been able to do that, and also based on your assumption (sorry Scott) why has Scott been put in AP he frontloaded the proof of his divorce. These are facts that you cannot argue against, and your key statement “The consular officer is not bound by the presumption that the evidence is valid” I know I stopped your quote short, but the evidence that is submitted early is only to deem you eligible to apply for a visa, and nothing more, and with that said even with it being screened, it still does not bound the interviewing CO to accept it as proof. Once again this is just my opinion on the matter, with real life personal experiences affecting my personal opinion. Jerome

[JimVaPhuong 4,863]

Jerome, I'm basing what I say on Department of State policy. I believe you are basing what you say largely on your own personal experience and opinions you've heard from others, when you yourself have stated that the consular officer made mistakes and even lied in your case. I don't believe that makes your case a standard on which other people should base their decision. I also believe your petition would have been reaffirmed if you'd chosen to pursue it, but you dropped it when USCIS said your petition had expired so we'll never know. If you want to use your case as proof that DoS doesn't follow their own policies, then I'll use my case as proof that they do. There - now it's a tie.

For what it's worth, a consular officer can only deny a visa if it's determined the applicant is ineligible or inadmissible. Having a small engagement party (whether true or not) does not make the applicant either ineligible or inadmissible. The same is true if the petitioner only makes one or two trips to Vietnam, or if the petitioner's ex-wife was in prison. These are not grounds for denying a visa. They are evidence in support of an accusation by the consular officer. He is accusing the beneficiary of a "sham relationship for the purpose of evading immigration law". If those factors were evidence of a sham relationship at the interview, then they should also have been evidence of a sham relationship when the petition was adjudicated. There is no way that USCIS is going to concede that a consular officer is better qualified to determine if a relationship is a sham when both USCIS and the consular officer have the same evidence available. USCIS also conducts interviews and makes determinations regarding the validity of relationships, so they have the same experience the consular officer has. Ultimately, USCIS is going to determine if the petition lives or dies.

You have sufficient evidence that the consular officer abused his discretion in your case. Your advice presumes every consular officer is going to do the same, which is patently false. I could just as easily claim that my advice is going to result in a visa in every case because it worked in my case, which would be equally false.

There is much more I can say about this, but we've beaten this dead horse before. In the end, people will have to make up their own minds and decide what to do.

[vietazn 1]

Over submission as a red flag. Which would mean frontloading too much.

Gut feeling says consulate can use any reason to deny, provided that they do not

discriminate based on any of the protected classes.

[ScottThuy 140]

protected classes? of visa applicants? no such thing.... Title IV does not apply to citizens of foreign countries...

[BinhJerome 14]

Jim, I am not basing everything on my petition. However what I am stating is that the CO does not have to look at what evidence was submitted and consider that evidence fact. This is clear, because many people have been asked about thing s they have front loaded, not just me, or Scott, but also many others. My point that I disagreed with was your statement that if you front load it becomes fact this is untrue. Maybe I have misunderstood what it was that you meant, but when you said if you frontload because USCIS has approved it then the CO cannot deny you based on what you front loaded. To me this means basically that if you front load it and it goes past USCIS and lands in the CO’s lap that they will not be able to recommend denial based on what you front loaded. Am I correct in my thinking? If I have interpreted this correctly, what do you base this thought process on? That is what I was asking. Too many people have received blues and denials with things they frontloaded for this to be true, that is what I am saying. I do not know what goes on and I do not have a clue about what happens at USCIS, but I do have a clue of what happens at HCMC since I have friend that is a CO there, and what that clue does is tell me that anything and everything that you submit will go under scrutiny of the CO, the more things you submit the more things they can CHOOSE to investigate. It is up to the CO, not USCIS on what gets investigated, and even if USCIS does not have a problem with what they saw, this DOES NOT mean the CO will come up with the same conclusion PERIOD. As for your assumptions that I am basing the facts strictly on my own case, that is not true, some of it of course, but you have done the same. Do I think that every CO will handle peoples case the way they handled mine? NO, that is also why I paid money for a lawyer in hopes that it would not happen to any other person. As far as my case getting reaffirmed, but I let it drop, no that is not how it happened at all, once USCIS let it expire it was OVER, FINISHED even we had wanted something done we couldn’t because that petition had expired, the only thing we could do was file a NEW one. Do we agree to disagree on this topic, maybe, but I do love debates, because not only do you and I learn from them but it allows other people to see what points we have and give them a chance to truly understand a person’s reasoning for what they suggest. Some people might call it hijacking a topic, but I disagree, since something in the original post is what we are discussing. Please Jim if I have missed your point let me know. But what I saw in your point was that you said if it was submitted and got past USCIS then it is considered fact and the CO cannot dispute that because it was frontloaded. My friend the CO clearly said they can and do investigate what was submitted with the initial packet since it was a way for them to have more insight on the relationship members prior to the interview, and also a double check on what USCIS has done, this is in contradiction to what you have said, or at least what I have seen that you said. My basis on this is that this is my opinion such as you have your opinion, and a CO has his opinion on what he see . Jerome

[feelinglucky 1]

I had spent over an hour to write my reply on this topic, but i accidently closed my broswer:crying: . Is there a draft saved somewhere here? what are my options beside kicking myself ?

[ScottThuy 140]

no cache for message after the browser closes.. hope you have time to recreate the post...