k1 visa denied, help pls

[Boiler 45,525]

The London Consulate do determine the needs if you self sponsor based on 90 days.

Think I missed a not above, Manila as far as I know will not allow you to self sponsor.

I would agree with the comment about his income, I have seen other threads, not recently, where the question of whether he was bringing in a nurse/carer or wife came up as well.

[ryna 132]

I can understand that, especially with the K1 kind of being a non-immigrant/immigrant hybrid.

It the uncertainty, lack of hard and fast rules and seemingly arbitrary application of the I-134 and co-sponsor in the K1 process that concern me because I may (or may not) find myself in a co-sponsor situation depending on the timing of the interview...and be turned down even with a long history of sufficient income, assets, and a co-sponsor... I'm even concerned that it could be a problem if my job is too recent for them (even if I'm making more than 4X their 125% limit for 2 people by then.)

If that's the case, is the visa put on hold at the consulate level until current income or minimum time on a new job is met? Or, is it kicked back to square one (a new petition w/waiver and associated wait for USCIS)?

[NVC FAN :( 18]

LOL, i for sure did not mean that. just wondering how many bend the law to my plight, or liberals where in the room. i totally agree. the boy should not be allowed to sponsor. he is disabled and will be for life and worse yet were all supporting him!

[Boiler 45,525]

I can understand that, especially with the K1 kind of being a non-immigrant/immigrant hybrid.

It the uncertainty, lack of hard and fast rules and seemingly arbitrary application of the I-134 and co-sponsor in the K1 process that concern me because I may (or may not) find myself in a co-sponsor situation depending on the timing of the interview...and be turned down even with a long history of sufficient income, assets, and a co-sponsor... I'm even concerned that it could be a problem if my job is too recent for them (even if I'm making more than 4X their 125% limit for 2 people by then.)

If that's the case, is the visa put on hold at the consulate level until current income or minimum time on a new job is met? Or, is it kicked back to square one (a new petition w/waiver and associated wait for USCIS)?

I do not believe your Consulate has the same requirement as Manila.

I have not heard of anyone having issues because they have recently changed jobs. It would be illogical, but that in itself is not relevant.

[ScottThuy 140]

Every consulate accepts co-sponsors Manila included. Ryna is correct if its Fiancée on K1 then you need the I-134. I can only assume that the CO either did not see your dads I-134 (unlikely but possible) or it was not completed/documented correctly. Did the CO mention anything?

NOT TRUE....

Many consulates will NOT accept co-sponsors for fiance visas.. many will only allow them for spouses... CR1's

[idaho_and_surigao 3]

NOT TRUE....

Many consulates will NOT accept co-sponsors for fiance visas.. many will only allow them for spouses... CR1's

It is United States Code, law of the land, that they have to consider it. While it may be true that they will not accept to issue a Visa, they are required by law to at least consider it. thats what I meant, I should have been more specific.

[JimVaPhuong 4,863]

It is United States Code, law of the land, that they have to consider it. While it may be true that they will not accept to issue a Visa, they are required by law to at least consider it. thats what I meant, I should have been more specific.

Can you point out that particular law to me? I've been through most of the INA and 8 CFR several times, and I've never seen that particular law. In fact, I've never even seen a law that requires the consulate to consider a sponsor of any kind for a non-immigrant visa.

What I have seen is INA section 212(a)(4), which says an alien is inadmissible if, in the opinion of the consular officer (at the time a visa is applied for) or Attorney General (at the time AOS is applied for), they are likely at any time to become a public charge in the United States. The things the consular officer is required to consider are age, health, family status, financial status, and education/skills of the applicant. What they may also consider is an affidavit of support.

The fact that INA 212(a)(4) applies separately to both consular officers and the Attorney General is important. Consular officers work for the Department of State. The Attorney General establishes policies for the Department of Homeland Security (including USCIS). Each department has established it's own policies for implementing the requirements of section 212(a)(4). DoS policies are outlined in the Foreign Affairs Manual. Neither the law nor the FAM provide strict guidance to a consular officer in making the "public charge" determination, which leaves it pretty much up to the discretion of each consulate to establish it's own policies. USCIS, on the other hand, has issued much more detailed guidance, and requires an affidavit of support that meets the requirements of INA section 213A. Many consulates tend to lean on USCIS policies for guidance when establishing their own policies for the "public charge" requirement, but no consulate is bound to strictly follow USCIS policy.

[idaho_and_surigao 3]

Can you point out that particular law to me? I've been through most of the INA and 8 CFR several times, and I've never seen that particular law. In fact, I've never even seen a law that requires the consulate to consider a sponsor of any kind for a non-immigrant visa.

TITLE 22 - FOREIGN RELATIONS

CHAPTER I - DEPARTMENT OF STATE

SUBCHAPTER E - VISAS

PART 42 - VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED

subpart i - REFUSAL, REVOCATION, AND TERMINATION OF REGISTRATION

42.81 - Procedure in refusing individual visas.

(a) Issuance or refusal mandatory. When a visa application has been properly completed and executed before a consular officer in accordance with the provisions of INA and the implementing regulations, the consular officer must either issue or refuse the visa under INA 212(a) or INA 221(g) or other applicable law. Every refusal must be in conformance with the provisions of 22 CFR 40.6.

(b) Refusal procedure. A consular officer may not refuse an immigrant visa until Form OF230, Application for Immigrant Visa and Alien Registration, has been executed by the applicant. When an immigrant visa is refused, an appropriate record shall be made in duplicate on a form prescribed by the Department. The form shall be signed and dated by the consular officer. The consular officer shall inform the applicant of the provision of law or implementing regulation on which the refusal is based and of any statutory provisions under which administrative relief is available. Each document related to the refusal shall then be attached to Form OF230 for retention in the refusal files. Any documents not related to the refusal shall be returned to the applicant. If the grounds of ineligibility may be overcome by the presentation of additional evidence and the applicant indicates an intention to submit such evidence, all documents may, with the consent of the alien, be retained in the consular files for a period not to exceed one year. If the refusal has not been overcome within one year, any documents not relating to the refusal shall be removed from the file and returned to the alien.

© Review of refusal at consular office. If the grounds of ineligibility upon which the visa was refused cannot be overcome by the presentation of additional evidence, the principal consular officer at a post, or a specifically designated alternate, shall review the case without delay, record the review decision, and sign and date the prescribed form. If the grounds of ineligibility may be overcome by the presentation of additional evidence and the applicant indicates the intention to submit such evidence, a review of the refusal may be deferred. If the principal consular officer or alternate does not concur in the refusal, that officer shall either (1) refer the case to the Department for an advisory opinion, or (2) assume responsibility for final action on the case.

(d) Review of refusal by Department. The Department may request a consular officer in an individual case or in specified classes of cases to submit a report if an immigrant visa has been refused. The Department will review each report and may furnish an advisory opinion to the consular officer for assistance in considering the case further. If the officer believes that action contrary to an advisory opinion should be taken, the case shall be resubmitted to the Department with an explanation of the proposed action. Rulings of the Department concerning an interpretation of law, as distinguished from an application of the law to the facts, are binding upon consular officers.

(e) Reconsideration of refusal. If a visa is refused, and the applicant within one year from the date of refusal adduces further evidence tending to overcome the ground of ineligibility on which the refusal was based, the case shall be reconsidered. In such circumstance, an additional application fee shall not be required.

I think we may be splitting hairs, and frankly I do not care to get into a legal debate. I have already discovered VJ to be a troll haven and time suck, and as such will be limiting my posting here. But, Jim, since its you. Here it is, I am not an immigration lawyer, but I interpret Section C above to be that the consular officer must at least consider the additional evidence, to wit; the I-134 now we could drag this out forever and say that the above only applies to immigrant visa's, is tough to interpret or could be interpreted differently. Now, you, I and everyone else knows that the CO has the omnipotent power to issue the Visa or not. I suppose that the only way that this could be really be tested is to file suit. But then again the CO, could just say, yeah, I considered it and I determined the applicant is ineligible. So in the end, does it really matter if they HAVE TO CONSIDER it or not? NO. We all know this. I think boiler said it best..."there are no certainties in Immigration"

end of chat for me.

[JimVaPhuong 4,863]

What, you don't think this is fun?

Yeah, it definitely IS a time suck!

42.81(c ) says the visa section chief will review a denied visa case that could not be overcome by additional evidence, but allows the consular officer to defer the review if additional evidence might overcome the denial. This is the infamous blue 221(g) sheet - come back with more documentation and the CO might reverse the decision and approve the visa. In other words, it's not out of the CO's hands yet.

Title 22, 40.41 would have been a better section to quote, since it deals specifically with public charge and affidavits of support. Check out paragraphs (a), (b), and (c ):

http://cfr.vlex.com/vid/40-41-public-charge-19720395

This sounds pretty enticing when you first read it:

(b) Affidavit of support. Any alien seeking an immigrant visa under INA 201(b)(2), 203(a), or 203(b), based upon a petition filed by a relative of the alien (or in the case of a petition filed under INA 203(b) by an entity in which a relative has a significant ownership interest), shall be required to present to the consular officer an affidavit of support (AOS) on a form that complies with terms and conditions established by the Attorney General. Petitioners for applicants at a post designated by the Deputy Assistant Secretary for Visa Services for initial review of and assistance with such an AOS will be charged a fee for such review and assistance pursuant to Item 61 of the Schedule of Fees for Consular Services (22 CFR 22.1).

(c ) Joint Sponsors. Submission of one or more additional affidavits of support by a joint sponsor/sponsors is required whenever the relative sponsor's household income and significant assets, and the immigrant's assets, do not meet the Federal poverty line requirements of INA 213A.

Sounds good, yes? You might get the impression from this that the CO is required not only to accept an affidavit of support, but they are ALSO required to accept a co-sponsor.

Unfortunately, it specifically refers to INA 201(b)(2), which describes visas for spouses, children and parents of US citizens, and sections 203(a) and 203(b), which describes other family visa classes. None of the referenced sections of the INA apply to K non-immigrant visas.

Paragraph (a) still applies:

(a) Basis for Determination of Ineligibility. Any determination that an alien is ineligible under INA 212(a)(4) must be predicated upon circumstances indicating that, notwithstanding any affidavit of support that may have been filed on the alien's behalf, the alien is likely to become a public charge after admission, or, if applicable, that the alien has failed to fulfill the affidavit of support requirement of INA 212(a)(4)(C ).

The "if applicable" part is the killer. Paragraphs (b) and (c ) don't say that an affidavit of support is specifically applicable to a K non-immigrant visa. In fact, they specifically say it's application to certain classes of immigrant visas.

The reason I'm so confident about this is because INA section 213A places some very strict requirements on the affidavit of support submitted under section 212(a)(4)(C ). The I-864 meets these requirements. The I-134 does not. So, if the consulate was to use INA 212(a)(4)(C ) as a basis for asking for an affidavit of support (in other words, applying the same standards applied to a immigrant visas under Title 22), then they wouldn't be able to accept an I-134, and would have absolutely no discretion. What's more, petitioner's would be suing the pants off of the Department of State for forcing them to sign a binding support contract for someone who hasn't even immigrated yet.

[bmagno23 0]

hi nate. i was in the same position as your bro. i am currently here in the philippines. we went to the embassy because my fiance had the same letter of denial. i made less then the minimum poverty guidelines and even had my parents co sponser....they did not take it. they dont usually allow CO SPONSORs for any k1 visa....but then again it depends on each person and the circumstances...in my case i am 24 years old, just my luck because at 24 years and above, they will not consider even looking at my co sponser paperwork regardless how many times we mentioned or showed it in their face but if you are under 24....they MAY acknowledge it, they dont have to...ultimately its up to the lucky consular that you are placed with to decide. sad to say but its in their hands. thats what the consular told me....straight from the US embassy of MANILA... anyways...this has been a hectic ride for me and for my fiance....WHAT A NIGHTMARE.

nate, all i can tell you is if your bro can go to the philippines for that dispostion of the case on the date stamped on there TELL HIM TO GO. you know what the CO told me? he didnt know i was coming....he interviewed me. i told him everything. my situation here, why i didnt make the income last year on my tax return...i told him. i lived with my parents in hawaii up till june 2009. i was a full time student there. worked only part-time so i only made $12,000. i graduated in june 2009 with my associates degree. i told him i moved to out and moved to washington state (thats where i live now). im independent. i establised residency here, i live by myself, no relative. i have 2 jobs, one part-time and one fulltime. i did not give him the chance to speak ( the CO) i was overwhelmed. (its good to show them how you feel)...the CO couldnt even say anything after i was done talking. i just tried my best to tell him how i felt. how much it hurt when they denied her visa. i told the CO, "through all this, i know we are nothing special, we are just like everyone else. we want to be together....i cant sleep, eat or do anything anymore....after reading the denial letter....im so stressed, crying at work....it has been tough....all we want is to be together and i will do my best to support her the best i can.....if you dont want to approve us now...i want you to marry us! the CO just sat there. he said you know what bryant, i want you to enjoy this "sudden" vacation, get some rest, you look tired, everything will be ok.........i approve this.......

wow.....................................up till now i am speechless......................................

have faith.....whats meant to be will find its way...... i know how your bro feels........i am thankful for that CO for reconsidering despite the fact that he could have easily denied us for good.......the CO did not expect me to be there, they thought just my fiance, since the CO was dealing with her from the start...the CO even said that it was good that i was present, he now fully understands our situation and he openly admitted that this is the one of the number one reasons why they deny many many k1 visa....not enough sustained income...and people always assume that they can use a co sponsor but they usually dont. it ultimately depends on the consular dealing with your case.

ULTIMATELY depends on the consular BUT:

24 years of age & older petitioner ==== no secondary sponsor, no ifs, buts, why, who, what...etc.

23 years of age and under ------ may considor secondary (more likely if you are in college, not a guarantee (DEPENDS ON THE CO HANDELING YOUR CASE)

hoping for the best for you and your family, keep your head up.....a visa may fall .....lol just wanna make you guys laugh for a few seconds....in this time of seriousness.....let me know if you have any questions....give me a heads up....sorry if wrong english grammer.....

[nate96 0]

hi nate. i was in the same position as your bro. i am currently here in the philippines. we went to the embassy because my fiance had the same letter of denial. i made less then the minimum poverty guidelines and even had my parents co sponser....they did not take it. they dont usually allow CO SPONSORs for any k1 visa....but then again it depends on each person and the circumstances...in my case i am 24 years old, just my luck because at 24 years and above, they will not consider even looking at my co sponser paperwork regardless how many times we mentioned or showed it in their face but if you are under 24....they MAY acknowledge it, they dont have to...ultimately its up to the lucky consular that you are placed with to decide. sad to say but its in their hands. thats what the consular told me....straight from the US embassy of MANILA... anyways...this has been a hectic ride for me and for my fiance....WHAT A NIGHTMARE.

nate, all i can tell you is if your bro can go to the philippines for that dispostion of the case on the date stamped on there TELL HIM TO GO. you know what the CO told me? he didnt know i was coming....he interviewed me. i told him everything. my situation here, why i didnt make the income last year on my tax return...i told him. i lived with my parents in hawaii up till june 2009. i was a full time student there. worked only part-time so i only made $12,000. i graduated in june 2009 with my associates degree. i told him i moved to out and moved to washington state (thats where i live now). im independent. i establised residency here, i live by myself, no relative. i have 2 jobs, one part-time and one fulltime. i did not give him the chance to speak ( the CO) i was overwhelmed. (its good to show them how you feel)...the CO couldnt even say anything after i was done talking. i just tried my best to tell him how i felt. how much it hurt when they denied her visa. i told the CO, "through all this, i know we are nothing special, we are just like everyone else. we want to be together....i cant sleep, eat or do anything anymore....after reading the denial letter....im so stressed, crying at work....it has been tough....all we want is to be together and i will do my best to support her the best i can.....if you dont want to approve us now...i want you to marry us! the CO just sat there. he said you know what bryant, i want you to enjoy this "sudden" vacation, get some rest, you look tired, everything will be ok.........i approve this.......

wow.....................................up till now i am speechless......................................

have faith.....whats meant to be will find its way...... i know how your bro feels........i am thankful for that CO for reconsidering despite the fact that he could have easily denied us for good.......the CO did not expect me to be there, they thought just my fiance, since the CO was dealing with her from the start...the CO even said that it was good that i was present, he now fully understands our situation and he openly admitted that this is the one of the number one reasons why they deny many many k1 visa....not enough sustained income...and people always assume that they can use a co sponsor but they usually dont. it ultimately depends on the consular dealing with your case.

ULTIMATELY depends on the consular BUT:

24 years of age & older petitioner ==== no secondary sponsor, no ifs, buts, why, who, what...etc.

23 years of age and under ------ may considor secondary (more likely if you are in college, not a guarantee (DEPENDS ON THE CO HANDELING YOUR CASE)

hoping for the best for you and your family, keep your head up.....a visa may fall .....lol just wanna make you guys laugh for a few seconds....in this time of seriousness.....let me know if you have any questions....give me a heads up....sorry if wrong english grammer.....

Thanks for the reply, i was wondering about that disposition of his case. So he can actually go over there and speak with a CO about his case? thanks for your time

[Tahoma 2,292]

@bmagno23...

...your story left me practically speechless too...it was very inspiring. It shows how important it can be for the fiancé to attend the interview.

Good on you, bmagno23.

[bmagno23 0]

tnk you tahoma....it has been an overwhelming experience...im also still speechless....we dont know what we would have done if they didnt approve us.....i guess its just one of the things we go through....we are happy we surpassed it and hopefully it will be an easier process from here out....cant wait for this to be over and be done with all this legal issues...then we can concentrate on us and move forward with our lives....

@nate....your bro and/or fiance can go and speak to a CO about the disposition....not necessary for petitioner to be present but it help me in my situation....i didnt even honestly know if i could go or not...coz that letter of disposition was in her name but i went with her anyway and they didnt mind at all. im not saying your brother HAS to be there but i can tell you, it helps ALOT...i didnt even have the extra finance to actually go back home to the philippines on such short notice but i love my girl, will do anything and everything in this world to be together...im sure everyone feels the same way. good luck guys and wish your family and everyone out there the best, for those who are awaiting a visa...stay strong and have faith, dont stress to much and always have a smile on your face =) everything will be alright....all i can say is WHAT A "VISA JOURNEY" FOR ME & MY WIFE! lol.

[nate96 0]

My brother's fiancee got her visa in the mail from the manila embassy yesterday, we all can not believe it. After several letters written to the Manila Embassy and lots of prayer they reconsidered her visa. My brother is still in shock. We never thought they would reconsider given the circumstances of their case. I just wanted to update everyone here on visa journey about their case. Never give up if u get denied, do whatever it takes to change their minds, persistence pays off as u can see here with my brothers case. thanks for all the help visa journey. Godbless

[Tahoma 2,292]

nate96...Thanks for the update. I'm glad it all worked out for your brother and his sweetheart.