Another White (Denied) for HCM

[Tommy Tran 0]

Hi Everyone.

Reason: lack of formal tradition enagement ceremony, & less than 3 trip visit to VN.

I have visit VN 2 time now, and our engagement ceremony schedule for september 26 (which will be my 3rd visit)... I tried to explain to them that but reasoning w/ them is impossible. They said our case will sent back to NVC.

Question: What do I now?

Do I:

1. Appeal? if so, how/when?

2. seek consular review? if so, how/when?

3. cut our loss and file new petitition? if so, now or after engagement ceromony w/ pictures?

4. arrange for engagement and wedding in same month and file for CR-1 (screw K1)?

5. which is better CR-1 or K-1? length of wating, procedure, restriction, cost, and guide line diiference?

I'm physically and mentally exhausted from this whole process and willing to do everything/anything to bring my fiance to the state.... please help w/ your insight.

Thank You so Much

~Q.T.

Admin, sorry for the redundency post.... not sure which forum is appropriate for this.....

[Tuanv 2]

This is the right forum for these kinds of questions. I cannot answer your questions but other people can.

[ScottThuy 140]

Sorry to hear this Tommy.. regardless of which option you choose, you need to address the issues... saying only 2 trips is a lame cause for denial as some others here have been approved after only 1. The Dam Hoi needed to be done before the interview, but again.. others have been approved without it. but since they made that as one of the two issues you noted.. it needs to be done...

If you wait to rebut, if they allow that, it will take at least 6 months from now...just to get the chance to respond and they may just send you a letter saying sorry , petition expired refile... If you do the dam hoi now and refile when you get back, you could potentially have an interview 6-8 months later... if you go over and get married it would be at least 6-8 months that route and is not a sure thing when it comes to getting approved..

[JimVaPhuong 4,863]

I've been wondering what exactly is USCIS policy when you file a new K1 before the previous K1 is officially dead and buried. Unfortunately, USCIS has redacted the entire K1 section from the public version of the Adjudicators Field Manual, supposedly because it's undergoing revision, but it's been that way since 2006.

I know that USCIS is required to maintain a database to keep track of multiple petitions filed by the same petitioner. Can they actually allow the same petitioner to have more than one approved I-129F at the same time? Has anyone ever filed a second I-129F, gotten it approved by USCIS, and then received notice of any action on the returned petition - approved, denied, revoked, whatever? In other words, evidence that the first petition was still alive even after the second petition was approved?

I remember reading a post from a lawyer in another forum that if USCIS receives a second petition before a decision has been made on the first petition then they just revoke the approval of the first petition and proceed with the second one. The lawyer said the same thing happens if you withdraw the returned petition before USCIS has made a decision on it. The lawyer was advising people not to withdraw the returned petition, or file a second petition before they knew the disposition of the returned petition. He was saying that, in either case, you could end up confirming the consulate's accusations. This would convert a P6C marker into a finding of fact. I should have bookmarked that post...

I'm not certain if what the lawyer wrote in that post is correct, though. Marc wrote that great article about how to deal with returned petitions, but it was mainly regarding what happens if you get married and file a CR1 petition. From that article, it was obvious that filing the CR1 petition did not stop USCIS from making a decision on the returned I-129F petition. In fact, the whole thrust of the article was that a negative decision on the returned petition could be a show stopper when the beneficiary went to interview for the CR1 visa.

There's also the new behavior of CSC in resurrecting a returned petition that had already been declared dead, and using it as a basis to deny a second petition. However, in that case Marc specifically mentioned that the petitioner had been told the first petition had expired and that they were free to refile. Has anyone had the same thing happen at CSC after having NOT been specifically told that the first petition had expired?

I'd really like to know how USCIS handles this. The conventional wisdom around here is to tell people to refile, and I'm not sure this is always good advice.

[ScottThuy 140]

IMO it all depends on How USCIS handles the first petition... I'll never understand the logic behind a P6C marker for 2 trips and no dam hoi, but thats not to say it could not happen...

I wonder what happens if the new petition gets to USCIS long before HCMC ever gets the first back to them... there would have to be a waiver request in the new petition explaining why a second one so soon...

[Penguin_ie 5,995]

I am not a Vietnam expert, but would the best option not be to keep the file at the embassy, and (possibly with the help of senator/ congressman) request a second interview with both beneficiary and petitioner, during his third trip, after the engagement ceremony?

[ScottThuy 140]

I am not a Vietnam expert, but would the best option not be to keep the file at the embassy, and (possibly with the help of senator/ congressman) request a second interview with both beneficiary and petitioner, during his third trip, after the engagement ceremony?

Not an option at HCMC... It is very rare to get the case held back at the consulate...

[Peter&TT 0]

Sorry to hear that. I've been through this experience. No much anyone including your senator/lawyer can do now.

Here were what happened to me.

3/23/2009: my then-fiancee submitted the our notarized timeline, list of relatives in the U.S. and were still denied. Case was sent back to USCIS.

3/twenty-something/2009: i had my senator contacted the Consulate and they responded with "the case would be sent back to USCIS and the petitioner would have a chance to rebut the consular findings..." (In a rare case as with Vermont Service Center, never expect a chance to rebut for a returned I129F)

4/10/2009: I flew back entered the consulate but an CO, after (pretending) listening , said our case would be sent back to USCIS, blah blah blah. I then had Marc Ellis submitted more evidence a few days later but still no luck.

Back to the U.S. I never got a NOID from USCIS. On July 10, 2009 I finally got the Notice of Decision (see below) which came as a Freedom of Information Act (FOIA) which I had requested in June 2009.

This notice is in reference to the Form I-129F, Petition for an Alien Fiancee, filed for ABC NGUYEN pursuant to section 101(a)(15)(K) of the Immigration and nationality Act, as amended. The petition was approved on Dec 15, 2008 and was forwarded abroad to a United states Embassy/Consulate with a validity period of 4 months. subsequently, the petition has been returned to the USCIS with a finding that the beneficiary was not issued the requested K1 visa. Since the period of validity has now expired the petition will not be revalidated. Therefore, in accordance with 8 C.F.R 214.2(k)(5), all USCIS action on this petition is concluded as of the date of this notice. However, the petitioner may choose to file a new Form I-129F, Petition for an Alien Fiancee, for the beneficiary with fee.

I flew back in 9/2009, got married, applied & obtained our marriage certificate in Vietnam (yes it was time-comsuming and a hassle but it wasn't too bad when you gave them $$$). I visited my wife again last March and just filed I-130 (CR1) (uploading a lot of evidence) on July 22. I haven't got my NOA1 yet.

Anyway, my point is if it has been 3 months after your case was sent back to USICS and you haven't heard from USICIS, do a FOIA.

Good lucks.

Peter

[Peter&TT 0]

1/ Did you upload your I-129F with many evidences?

2/ Did you submit your timeline with your I-129F?

3/ Did you clearly explain your plan (formal engagement in 3rd trip after getting K1 visa) in your I-129F?

I didn't and realized it was a big mistake. The CO very much won't care what is brought to the interview or submitted after a blue/white sheet. They gave you a blue/white sheet just to follow procedures. I believe a decision had already been made.

Peter

[JimVaPhuong 4,863]

IMO it all depends on How USCIS handles the first petition... I'll never understand the logic behind a P6C marker for 2 trips and no dam hoi, but thats not to say it could not happen...

I wonder what happens if the new petition gets to USCIS long before HCMC ever gets the first back to them... there would have to be a waiver request in the new petition explaining why a second one so soon...

Marc doesn't understand it either. He says that the consulate places the marker in the file with the attitude "Let's see what USCIS thinks about this". If USCIS ultimately decides to revoke the approval of the petition, they haven't made any decision whatever in regards to the P6C accusation by the consulate, but the consulate presumes that they have. The consulate's attitude is that USCIS determined there was a material misrepresentation, when USCIS made no such determination. In many cases, they just revoked the approval of the petition because they gave the petitioner a chance to respond, and the petitioner ignored the NOIR because they had already moved on and filed another petition. In some cases, their attorneys TOLD them to ignore the NOIR.

My main concern is what happens to the returned petition if it's NOT dead, and USCIS hasn't made any decision on it yet, and a second I-129F is filed. It isn't clear to me at all what happens to the returned petition after that.

[jagrup 0]

Marc doesn't understand it either. He says that the consulate places the marker in the file with the attitude "Let's see what USCIS thinks about this". If USCIS ultimately decides to revoke the approval of the petition, they haven't made any decision whatever in regards to the P6C accusation by the consulate, but the consulate presumes that they have. The consulate's attitude is that USCIS determined there was a material misrepresentation, when USCIS made no such determination. In many cases, they just revoked the approval of the petition because they gave the petitioner a chance to respond, and the petitioner ignored the NOIR because they had already moved on and filed another petition. In some cases, their attorneys TOLD them to ignore the NOIR.

My main concern is what happens to the returned petition if it's NOT dead, and USCIS hasn't made any decision on it yet, and a second I-129F is filed. It isn't clear to me at all what happens to the returned petition after that.

just marry the person

[Alan-and-Ira 1]

JimVaPhuong

<...>

I know that USCIS is required to maintain a database to keep track of multiple petitions filed by the same petitioner. Can they actually allow the same petitioner to have more than one approved I-129F at the same time? Has anyone ever filed a second I-129F, gotten it approved by USCIS, and then received notice of any action on the returned petition - approved, denied, revoked, whatever? In other words, evidence that the first petition was still alive even after the second petition was approved?

<...>

There's also the new behavior of CSC in resurrecting a returned petition that had already been declared dead, and using it as a basis to deny a second petition. However, in that case Marc specifically mentioned that the petitioner had been told the first petition had expired and that they were free to refile. Has anyone had the same thing happen at CSC after having NOT been specifically told that the first petition had expired?

I'd really like to know how USCIS handles this. The conventional wisdom around here is to tell people to refile, and I'm not sure this is always good advice.

Hi there,

We were denied the K1 at the time of the interview, and our I-129F was returned back to VSC for review and possible revokation on the grounds of inadmissibility. We have never been given an official denial, so we have no clear idea what was the actual 'ground'.

A few months later, after consulting with the attorney, we got married and filed I-130 for CR1 while our returned I-129F was still with USCIS. Our new petition stayed longger than 5 months with CSC, and we called their office to report about the case outside the normal processing time (5 months + a few days). A couple of weeks that our new petition got a 'touch' and USCIS website, and a week later we got an official paper letter informing us that our first petition was closed due to the term expiration (it toook one year from the returning time!). And in another week after that out I-130 was approved at CSC, and it is currently at NVC.

So, at USCIS stage we have never been sent any RFE for our new petition, or any NOID which we, actually, expected! Well, for now we are just trying to be prepaperd for any possible questions at the interview.

As you see, that's a real story of two petitions from the same petitioner pending at the USCIS at the same time (only one was approved at a time), one of which got closed before another's approval.

Best wishes to everyone!

Edited August 15, 2010 by Alan-and-Ira

[Tommy Tran 0]

Thank You Everyone for Insights and Supports.

Peter... I agreed w/ everything you said. My I-129F had plenty of evidence (chat log, text msg, email, mail, etc) Pictures were a little weak b/c for some odd reason, we ended up submit pictures w/ same clothes. From what my fiance told me, the CO only flip thru the pictures and just look for the clothes you wore.. and they determine that you only spent 2-3 days together. Timeline was submit at the resubmission after BLUE, should've done it w/ I-129F. We did explain clearly about the engagement (even had the invitation cards) but stumble on the detail of the wedding plan after enter U.S.

The blue and White is definiely just a procedure. Like you said, decision has already been made.

My plan now is to come back on September 26 and get married like we have planned.. Try to obtain marraige certificate and file for CR-1....

Should there's anything I need to between now to 9/26? As far as NVC,USCIS, etc.

From the respond of what I understand is that the petition #1 for K-1 eventually will be expired or denied after 5-8 months after. Do I have to wait that entire time to recieve a letter saying so before file new petition where K1 or CR-1 or can I just start a new petition after our wedding?

Thanks

[CoolHand2x2y2z 0]

I'm very sorry to hear of your results.

There's not much to be done now (until after USCIS contacts you), unless you have somebody pretty high up in D.C. that can shake the monkeys' cage. Those chimps at HCMC won't budge at this point.

They can't tell who is legit and who's a fraud, so they just pile everyone together and deny just about everybody. Don't take it personally.

You know, we all ought to all pitch in and order a truck or two of bananas and have it all delivered to the compound. And have a sign to go with it: "Eat up monkeys! We love you!"

[David-Hien 11]

Thank You Everyone for Insights and Supports.

Peter... I agreed w/ everything you said. My I-129F had plenty of evidence (chat log, text msg, email, mail, etc) Pictures were a little weak b/c for some odd reason, we ended up submit pictures w/ same clothes. From what my fiance told me, the CO only flip thru the pictures and just look for the clothes you wore.. and they determine that you only spent 2-3 days together. Timeline was submit at the resubmission after BLUE, should've done it w/ I-129F. We did explain clearly about the engagement (even had the invitation cards) but stumble on the detail of the wedding plan after enter U.S.

The blue and White is definiely just a procedure. Like you said, decision has already been made.

My plan now is to come back on September 26 and get married like we have planned.. Try to obtain marraige certificate and file for CR-1....

Should there's anything I need to between now to 9/26? As far as NVC,USCIS, etc.

From the respond of what I understand is that the petition #1 for K-1 eventually will be expired or denied after 5-8 months after. Do I have to wait that entire time to recieve a letter saying so before file new petition where K1 or CR-1 or can I just start a new petition after our wedding?

Thanks

You should have plan before you come back to VN for wedding. The marriage certificate will need at least one more trip to get; therefore, you should have your wife check at "So Tu Phap" for the schedule to make sure that your marriage certificate can be done with a minimum cost.

You don't have to wait to receive the letter from USCIS about the K1 petition. You can start the new petition right now.

I gave this advice to you just for your willingness. However, I believe that the Consulate had their reasons to deny based on the fact. I followed up many cases on the other website. According to my experience, almost the denied cases had a short time gap for decision to get engagement.