CO Request for Impossible Document

[stevydoo 0]

Vicki and I met on the internet. I went to see her for 3 weeks at the end of 2007. Because my boss retired I've been very busy and we ended up using a local immigration attorney to file our K1 paperwork at the end of 2009. It was accepted by USCIS and Vicki had her interview on June9, 2010. The petition was denied with a request for additional documents.

There are 2 problems: 1.) Vicki entered the wrong dates (issue and expire) for her new passport on the DS156. I thought the attorney checked this but he didn't. The first item checked on the form was for "document verification" and "valid passport for" Vicki. The CO had her current passport so she knew this was a clerical error, but she never mentioned it to Vicki during the interview.

2.) In the EMPLOYMENT-BASED PETITIONS section on the form (relates to employment of petitioner) was a hand written entry under "other." It said "proof petitioner was in the Philippines on Jan19, 2008." I left the Philippines on Jan14, 2008 and among other documents we submitted to prove we met in person were the ticket stubs showing when I was there. The NOA we received from Homeland Security (HS) was dated Jan19, 2010, so I assume this has something to do with that entry.

Since USCIS accepted the petition our attorney says there is no problem with the 2 year application deadline. He said this is a "tug-of-war" between the State Dept. and HS. He wants to play "softball" and simply submit an amended DS156 and statement that the petition was accepted by USCIS so there is no requirement for me to be in Phil on Jan19, 2008.

I think the CO disapproves of our relationship because of the age difference (I 55, Vicki 28 = 27 years) and is simply blocking it. I suspect she will deny the petition on receipt of our documents and kick it back to USCIS.

Has anyone heard of this problem before? Can you offer any advice? From what I read it can take up to 2 years to sort this out and we could still lose in the end.

[sjr09 155]

I doubt it has anything to do with the age deference and everything to do with the request for additional documents. What exactly was the request for? What is the impossible document? Give the CO what they are requesting and you’ll be on your way.

[Audy_Rob 26]

I doubt it has anything to do with the age deference and everything to do with the request for additional documents. What exactly was the request for? What is the impossible document? Give the CO what they are requesting and you’ll be on your way.

I agree it has nothing to do with the age difference as this is very common in the Philippines, even that large of an age difference.

The allegedly "impossible document" refers to the passport stamp showing the USC Petitioner was in the Phils on January 19, 2008, which he was not, because the DOS wants to see that the Petitioner was in the Phils. in the two years preceeding the NOA1 date.

I believe that the DOS may be technically correct in this regard and that the two years before the petition is filed starts with the date of NOA1, not the date the form was filed.

The CO at the Embassy is saying the USC had not met his fiancee in the two years prior to filing the I-129F petition.

You have a lawyer, just follow his advice.

Good luck.

[pushbrk 12,980]

I agree it has nothing to do with the age difference as this is very common in the Philippines, even that large of an age difference.

The allegedly "impossible document" refers to the passport stamp showing the USC Petitioner was in the Phils on January 19, 2008, which he was not, because the DOS wants to see that the Petitioner was in the Phils. in the two years preceeding the NOA1 date.

I believe that the DOS may be technically correct in this regard and that the two years before the petition is filed starts with the date of NOA1, not the date the form was filed.

The CO at the Embassy is saying the USC had not met his fiancee in the two years prior to filing the I-129F petition.

You have a lawyer, just follow his advice.

Good luck.

Correct. The issue is whether the couple was in the same place at the same time within two years of filing the petition. If they weren't, then the Consular officer is correct in denying the visa and recommending the petition approval be revoked. You might make an argument that you filed the petition within two years and the receipt notice was delayed but whether to accept that is at the discretion of the Consular officer. This being a material and primary requirement, it's far from a sure thing, they'll agree with that argument but they might. IMO, the attorney should me actually making that argument in your behalf.

Here's hoping the attorney isn't the cause of the late filed petition.

[stevydoo 0]

Correct. The issue is whether the couple was in the same place at the same time within two years of filing the petition. If they weren't, then the Consular officer is correct in denying the visa and recommending the petition approval be revoked. You might make an argument that you filed the petition within two years and the receipt notice was delayed but whether to accept that is at the discretion of the Consular officer. This being a material and primary requirement, it's far from a sure thing, they'll agree with that argument but they might. IMO, the attorney should me actually making that argument in your behalf.

Here's hoping the attorney isn't the cause of the late filed petition.

Does anyone know where to find a legal definition for the "filing date" of a K1 petition? Can it vary from embassy to embassy? Here is our attorney's explanation, word for word-

"The petition was filed on time and WAS APPROVED by the USCIS that has the JURISDICTION over the matter. If the petition was to be denied, it would have been denied by the USCIS!"

The CONSULATE, on the other hand, has the authority over the VISA which they can refuse based on various assumptions of legitimacy on the relationship and the totality of circumstances."

If the filing date is NOA1 then Vicki and I were misled by our attorney and he is the exact cause of the late filing. I've searched the USCIS and embassy websites and can find no reference to an official definition of the filing date. If it is NOA1, what options do we have? Sue the attorney (his fee was $2500)? Should we explain our circumstances to the CO? If the attorney is wrong then his response to the request for more documents will fail for sure.

Thank you very much for any ideas you can offer- We have no idea how to proceed and are rapidly losing confidence in our attorney.

[belinda63 3,039]

At this late date I would say stick with your attorney until the end and if it is denied due to a question of meeting in the past two years requirement being fulfilled then I would consider asking for a refund from the attorney.

Probably the bigger issue, although the embassy may be using the two year requirement as a solid grounds for denial, might be why you have not visited in more than two years. Although technically one meeting of one minute within the last 730.5 days meets the requirements to file it certainly would not show an ongoing relationship. So I think there is a little more to this than just meeting the two year requirement on a technicality.

[stevydoo 0]

At this late date I would say stick with your attorney until the end and if it is denied due to a question of meeting in the past two years requirement being fulfilled then I would consider asking for a refund from the attorney.

Probably the bigger issue, although the embassy may be using the two year requirement as a solid grounds for denial, might be why you have not visited in more than two years. Although technically one meeting of one minute within the last 730.5 days meets the requirements to file it certainly would not show an ongoing relationship. So I think there is a little more to this than just meeting the two year requirement on a technicality.

Thanks for everyone's thoughtful responses. To answer your question- I work for UCBerkeley and my boss retired last year. Because of budget cuts I've essentially been doing the work of 2 people since then. The Department is planning to downsize my facility and if I had left for several weeks there might not have been an office to return to. I speak daily with my fiancee and exchange emails whenever possible. This may not look like an ideal relationship but the politics of financial crisis don't make exceptions for marriage. I should have filed earlier but I was working 70 hour weeks and procrastinated for almost a year waiting to see if I would be laid off after the first round of cutbacks last year. I also grossly underestimated the time it would take to collect all the required evidence.

With regard to a refund request if the attorney's appeal fails;

1.) His fee was $2500, but that did not include filing costs after NOA1. Would you agree that all subsequent fees such as the medical exam, embassy filing fee, telephone calls to the embassy, hotel bills, etc... should be included in the refund as well? This adds up to more another $1K.

2.) Even if he is legally correct and the embassy has a right to make determinations of timeliness as it wishes (Volume 9 of the FAM- section 41.81, Fiance(e) of a U.S. Citizen, INA 214.f.1), he still should have known that filing a petition so close to the deadline was hazardous. Wouldn't that constitute professional negligence if he claims to have extensive experience filing K1 visas in the Philippines? If he was negligent why shouldn't he be responsible for the additional cost of another trip to Phil to reset the 2 year clock plus all fees connected with a second petition?

From the start (8/2009) our lawyer told us qualifying for the visa was no problem. When I expressed concern about the 2 year deadline (my return from Manila was 1/14/2008) he never expressed a sense of urgency. On 1/10/2010 he said he "hoped to file this petition this week" while requesting additional information. In short, can't we also consider suing him for negligence? The total cost to file a second petition will be at least $4K without the help of a second attorney, ignoring the additional 6-9 months we have to wait before the visa is issued if we are lucky.

[sara..... 371]

Thanks for everyone's thoughtful responses. To answer your question- I work for UCBerkeley and my boss retired last year. Because of budget cuts I've essentially been doing the work of 2 people since then. The Department is planning to downsize my facility and if I had left for several weeks there might not have been an office to return to. I speak daily with my fiancee and exchange emails whenever possible. This may not look like an ideal relationship but the politics of financial crisis don't make exceptions for marriage. I should have filed earlier but I was working 70 hour weeks and procrastinated for almost a year waiting to see if I would be laid off after the first round of cutbacks last year. I also grossly underestimated the time it would take to collect all the required evidence.

With regard to a refund request if the attorney's appeal fails;

1.) His fee was $2500, but that did not include filing costs after NOA1. Would you agree that all subsequent fees such as the medical exam, embassy filing fee, telephone calls to the embassy, hotel bills, etc... should be included in the refund as well? This adds up to more another $1K.

2.) Even if he is legally correct and the embassy has a right to make determinations of timeliness as it wishes (Volume 9 of the FAM- section 41.81, Fiance(e) of a U.S. Citizen, INA 214.f.1), he still should have known that filing a petition so close to the deadline was hazardous. Wouldn't that constitute professional negligence if he claims to have extensive experience filing K1 visas in the Philippines? If he was negligent why shouldn't he be responsible for the additional cost of another trip to Phil to reset the 2 year clock plus all fees connected with a second petition?

From the start (8/2009) our lawyer told us qualifying for the visa was no problem. When I expressed concern about the 2 year deadline (my return from Manila was 1/14/2008) he never expressed a sense of urgency. On 1/10/2010 he said he "hoped to file this petition this week" while requesting additional information. In short, can't we also consider suing him for negligence? The total cost to file a second petition will be at least $4K without the help of a second attorney, ignoring the additional 6-9 months we have to wait before the visa is issued if we are lucky.

i wish u all the luck with refund from your attorney our attorney told us many times if visa was not obtained we would get full refund when visa was not given i demanded refund and was told by the "lady" that took over our case that we were told if noa2 was not obtained then we would receive full refund.........you can not fight the attorneys if they are bad they are bad all the way......i hope u at least get your fees back but i would not count on anything else as it is fees you would have had to pay even if you succeeded in getting the visa....

sara

[JimVaPhuong 4,863]

Thanks for everyone's thoughtful responses. To answer your question- I work for UCBerkeley and my boss retired last year. Because of budget cuts I've essentially been doing the work of 2 people since then. The Department is planning to downsize my facility and if I had left for several weeks there might not have been an office to return to. I speak daily with my fiancee and exchange emails whenever possible. This may not look like an ideal relationship but the politics of financial crisis don't make exceptions for marriage. I should have filed earlier but I was working 70 hour weeks and procrastinated for almost a year waiting to see if I would be laid off after the first round of cutbacks last year. I also grossly underestimated the time it would take to collect all the required evidence.

With regard to a refund request if the attorney's appeal fails;

1.) His fee was $2500, but that did not include filing costs after NOA1. Would you agree that all subsequent fees such as the medical exam, embassy filing fee, telephone calls to the embassy, hotel bills, etc... should be included in the refund as well? This adds up to more another $1K.

2.) Even if he is legally correct and the embassy has a right to make determinations of timeliness as it wishes (Volume 9 of the FAM- section 41.81, Fiance(e) of a U.S. Citizen, INA 214.f.1), he still should have known that filing a petition so close to the deadline was hazardous. Wouldn't that constitute professional negligence if he claims to have extensive experience filing K1 visas in the Philippines? If he was negligent why shouldn't he be responsible for the additional cost of another trip to Phil to reset the 2 year clock plus all fees connected with a second petition?

From the start (8/2009) our lawyer told us qualifying for the visa was no problem. When I expressed concern about the 2 year deadline (my return from Manila was 1/14/2008) he never expressed a sense of urgency. On 1/10/2010 he said he "hoped to file this petition this week" while requesting additional information. In short, can't we also consider suing him for negligence? The total cost to file a second petition will be at least $4K without the help of a second attorney, ignoring the additional 6-9 months we have to wait before the visa is issued if we are lucky.

I think you might have misquoted the FAM. INA section 214(d) applies to fiancee visa petitions. 214(f) is about alien crewmen acting as strike breakers.

The rule applied by USCIS is that a petition is "properly filed" when it has been signed by the petitioner, and the fee has been collected by the department. This means the day your check is cashed. They use the same rule for determining the priority date for family preference visa petitions. This is the date of your NOA1. This is also why they won't cash the check if the petition is obviously deficient, since cashing the check means that the petition has been accepted, and establishes a filing date.

The consulate can deny a visa if they discover an ineligibility or inadmissibility that was not known to USCIS when the petition was approved, or if they believe USCIS clearly erred when they approved the petition. See the notes for 9 FAM 42.53. The consulate is saying that, unless you can provide evidence to the contrary, your petition should never have been approved. From the looks of things, the only way you could successfully appeal this is if you can prove either that you were in the Philippines on or after January 19, 2008, or that your petition was actually "properly filed" on or before January 14, 2010.

If your attorney offers a money back guarantee, then you have a good shot at getting a refund of your attorney fees. If he doesn't, you may have a tough time in civil court, depending on when you first went to the attorney with your fiancee visa case. By your own admission, you delayed filing by nearly a year by your own choice. On the other hand, it does sound like your attorney has a misunderstanding of when the petition is "properly filed", and where the separation of authority lies between DHS and DoS. I hate to guess someone's chances in a civil lawsuit. I've seen people collect in cases I was certain were a lot weaker than yours.

If you did succeed in getting the attorney to pay for everything you want, I'm not sure you'd want it known that your attorney paid for your second trip to the Philippines. The Embassy in Manila is known to be fairly strict about the financials and the affidavit of support, and they have almost total discretion in making the "public charge" call. If you can't afford to pay for your own travel expenses then it isn't going to instill them with much confidence that you'll be able to support your new wife at the required level.

If I were in your shoes, I'd take a little time off and make a second trip to the Philippines. I'd have your fiancee withdraw the K1 visa application. The consulate should close the case without prejudice. I'd file another K1 petition as soon as I got back, using the resources here at VJ, and then I'd pursue the malpractice suit against the attorney at my leisure. This will also give you a chance to beef up the "bona fides" of your relationship.

The FAM does allow a consular officer to consider a large difference in age when judging the "bona fides" of a relationship, but they are also allowed to consider whether something is culturally or socially appropriate for the beneficiary's country. An older man and younger women with a substantial difference in age is pretty common in the Philippines, and the consulate approves cases like this all the time.