class action lawsuit for HCMC and K1 visa

[BinhJerome 14]

Hi Jerome.

I read the entire complaint, and the comment I posted was based on that and not on your opening posts. As I said before, I think the case has merit on many grounds, and a reasonably good chance of succeeding. I just think the "due process" claim is weak.

Regarding the issue over the number of visits and engagement ceremonies, it's certainly true that nothing in the law requires these things in order to be eligible to receive a visa. By the same token, nothing in the law requires the petitioner and beneficiary to actually love each other, or in fact have any sort of relationship at all. The law DOES require that the relationship not be primarily for the purpose of evading immigration law to secure an immigration benefit, and it gives the consular officer wide latitude in making this determination.

Yes, a US citizen files the petition, and a US citizen has certain Constitutional rights, but obtaining a visa for his/her fiancee or spouse is not one of them. The authors of the Declaration of Independence declared that your "inalienable rights" included "life, liberty, and the pursuit of happiness", but the authors of the Constitution were more pragmatic when they crafted the "due process" clause of the Bill of Rights - they included only "life, liberty, and property" as the things you cannot be deprived of without due process. If they had included "pursuit of happiness" in the due process clause it would have opened up a grab bag of "rights" they never intended to infer, such as the "right" to smear your body with mayonnaise and run down the street naked, if that's what makes you happy.

Anyway, the points in the lawsuit which I think are meritorious include the fact that there is a "colossal sparring match" going on between DHS and DoS, that denials have been "capricious and arbitrary", that consular officers and USCIS often abuse their statutory power, and that consulates have been promising that DHS will provide the petitioner an opportunity to appeal when it is not within their jurisdiction to make such a promise. I think there's a reasonably good chance that changes will be made as a result of this lawsuit. Will it force the consulate to issue a visa when the petitioner has made only one trip to visit the beneficiary and/or did not have a cultural engagement ceremony? I wouldn't hold my breath.

This is where the big misconception is. In the US supreme court it was argued that a free person has the right to marry and live with their wife as long as both are able to be married, this held up as the pursuit of happiness, this is EVERY free americans right, and this is why the K1 visa is not an immigrant visa, but a non immigrant visa the way it was designed was to help reduce the fraud, meaning once they were here certain steps were met and interviews were made to conclude that the marriage was infact real and with love, and not a way to simply evade immigration laws. Yes some things on the lawsuit seem weak if you look at them from one point of view and then if you stand back, turn your head to the right a bit it becomes stronger, and likewise with the strong points. The fact is that the pursuit of happiness does include marriage if you are both able and willing. Jerome

[Boiler 45,501]

The marriage has to be real.

Love is not required.

[Alan-and-Ira 1]

The marriage has to be real.

Love is not required.

Yes, it really looks like this... But what is a marriage w/o love?

[Gary and Alla 3,694]

FWIW I will add my 2 cents.

The requirements (or lack thereof) for meeting in person multiple times, engagement parties, love, emails...whatever...are regarding PETITION APPROVAL. A Petition is not a visa. It is an approved request to request a visa. It says that USCIS says you meet the qualifications to APPLY for a K-1 visa. That is all. Period, end of story.

There are no "laws" which specify exactly what is required for the issuance of a visa and stae department rules, allowed by the law, designate this responsibility to the conculates in the countries they administer visas for. The "law" requires that the DOS determine that the visa is not being used to circumvent other immigration law. That is all. HOW they do that, is not specified.

The idea put forth that consulates are "required" to deny a certain number of visas or that there are a certain number of visa numbers available is preposterous and wholly ignores facts. People that conduct themselves in ignorance of facts are going to have problems in life...including getting visas issued.

That a "well known" attorney has decided to make a lot of money from this case does not, in itself, give the case any merit. The merit of a legal case is based on facts, not how many or which attorneys will cash in on it. The FACTS in this case simply don't support it winning. Even if handled on "contingency" (I doubt it) or "pro-bono" it could be a very profitable publicity stunt at $2000 per petition. One has to bear in mind that attorneys exist in this process largely as parasites. Kind of like a tapeworm insisting you "need him" to stay thin and healthy. Absent the ability to make money in large denominations, attorneys vanish into thin air.

The idea that a petitioner is being denied "due process" when the petitioner has received an APPROVED petition is preposterous as well. You will complain because you GOT what you asked for? And Jim is correct, unless they forcibly remove money or property from you, there is no "due process" due to you.

The vast majority of denied VISA APPLICATIONS are because the visa applicants were not prepared for what was needed at that consulate. Whether or not you agree that what that consulate requires is "reasonable" doesn't matter.

It will be interesting, but other than a publicity stunt and fundraiser for attorneys I just do not see this going anywhere. My concern is that a court decision in "favor" of the plaintiffs, could result in stricter laws for ALL of us. I would not expect the DOS response to an unfavorable ruling to be to open the gates and let everyone in Vietnam, Morroco, Pakistan, Syria and Iraq have a visa under the same requirements applied in, say, Canada. I would expect them to apply Vietnam rules to Canada instead.

Edited August 29, 2010 by Gary and Alla

[clayr 35]

7. Plaintiff Dzu Cong Tran is a naturalized United States citizen, born in Vietnam in

1978, and a resident of Portland, Oregon. He filed a Form I-129F petition for fiancé(e) with

USCIS on August 24, 2009, which was approved by USCIS on October 27, 2009. Defendant

State Department communicated to Plaintiff that it had returned the approved petition to

defendant USCIS for revocation on or about May 12, 2010. Defendants subsequently

communicated to Plaintiff’s counsel that the petition was returned on July 31, 2010, much later

than he was originally informed in writing.

8. Plaintiff Daniel Mai Dinh is a U.S. born citizen of the United States, and a

resident of Bonney Lake, Washington. He filed a Form I-129F petition for fiancé(e) with USCIS

on May 19, 2009, which was approved by USCIS on August 25, 2009. Defendant State

Department communicated to Plaintiff that it had returned the approved petition to Defendant

USCIS for revocation on or before January 7, 2010. Defendant USCIS refused to take action on

the petition, and in a letter dated June 24, 2010, communicated that all USCIS action was

concluded due to the expiration of the petition validity of the I-129F petition.

9. Plaintiff Austin Peter Tran is a U.S. born citizen of the United States, and a

resident of Baldwin Park, California. He filed a Form I-129F petition for fiancé(e) with USCIS

on October 13, 2009, which was approved by USCIS on March 19, 2010. Defendant State

Department communicated to Plaintiff that it had returned the approved petition to Defendant

USCIS for revocation in a letter dated August 11, 2010.

10.

Add your names to this list take action!!!!!!!!!!!!

PARTIES

[Boiler 45,501]

There are no "laws" which specify exactly what is required for the issuance of a visa and stae department rules, allowed by the law, designate this responsibility to the conculates in the countries they administer visas for. The "law" requires that the DOS determine that the visa is not being used to circumvent other immigration law. That is all. HOW they do that, is not specified.

This is the crux of the case, you may call it profiling but I believe the Feds are allowed to do it.

The idea put forth that consulates are "required" to deny a certain number of visas or that there are a certain number of visa numbers available is preposterous and wholly ignores facts. People that conduct themselves in ignorance of facts are going to have problems in life...including getting visas issued.

I saw somebody say this the other day, that you should not have an appointment at the end of the month!

That a "well known" attorney has decided to make a lot of money from this case does not, in itself, give the case any merit. The merit of a legal case is based on facts, not how many or which attorneys will cash in on it. The FACTS in this case simply don't support it winning. Even if handled on "contingency" (I doubt it) or "pro-bono" it could be a very profitable publicity stunt at $2000 per petition. One has to bear in mind that attorneys exist in this process largely as parasites. Kind of like a tapeworm insisting you "need him" to stay thin and healthy. Absent the ability to make money in large denominations, attorneys vanish into thin air.

It sounded ACLU ish, that is how they make their money, suing the Government and getting reimbursed for their 'costs'. How is this being funded?

The vast majority of denied VISA APPLICATIONS are because the visa applicants were not prepared for what was needed at that consulate. Whether or not you agree that what that consulate requires is "reasonable" doesn't matter.

The crux of the matter.

I would not expect the DOS response to an unfavorable ruling to be to open the gates and let everyone in Vietnam, Morroco, Pakistan, Syria and Iraq have a visa under the same requirements applied in, say, Canada. I would expect them to apply Vietnam rules to Canada instead.

It would not be that hard to issue a document that pretty much gave allowance to investigate anything and everything, depending on the individual case circumstances. So you just end up with a codified version of what happens now.

[clayr 35]

I will be joining. Finally this gets attention to the abuse going on at consulate in Saigon

[JimVaPhuong 4,863]

This is where the big misconception is. In the US supreme court it was argued that a free person has the right to marry and live with their wife as long as both are able to be married, this held up as the pursuit of happiness, this is EVERY free americans right, and this is why the K1 visa is not an immigrant visa, but a non immigrant visa the way it was designed was to help reduce the fraud, meaning once they were here certain steps were met and interviews were made to conclude that the marriage was infact real and with love, and not a way to simply evade immigration laws. Yes some things on the lawsuit seem weak if you look at them from one point of view and then if you stand back, turn your head to the right a bit it becomes stronger, and likewise with the strong points. The fact is that the pursuit of happiness does include marriage if you are both able and willing. Jerome

I don't think there's any argument that marriage and living with your spouse would be "pursuit of happiness". What I said was that "pursuit of happiness" is not guaranteed by the Constitution. It was mentioned in the Declaration of Independence, which is an important historical document but it's not law.

The Supreme Court cases you mention are specifically Loving v. Virginia and Zablocki v. Redhail. In Loving v. Virginia, the right to pursue an interracial marriage was being argued. In Zablocki v. Redhail, the right to marry without having to obtain permission from the state because of support arrears was being argued. Both cases had to do with the right to marry, and not the right to live with your spouse in the United States.

If an attorney can successfully argue that spouses have a legal right to live together, and the Supreme Court agrees, then there are vast segments of the Code of Federal Regulations that must be discarded. The Pentagon will not be able to compel a soldier to deploy to a theater of war because it will separate the soldier from his/her spouse. The criminal courts will not be able to send a convicted criminal to prison because it will separate the criminal from his/her spouse. The US consulates will not be able to deny a visa to a spouse of US citizen just because they have a serious inadmissibility like drug addiction or a murder conviction because it will separate them from their US citizen spouse.

The list goes on...

[Boiler 45,501]

Slightly off topic, but Thebes had the Sacred Band:

And if there were only some way of contriving that a state or an army should be made up of lovers and their loves, they would be the very best governors of their own city, abstaining from all dishonour, and emulating one another in honour; and when fighting at each other's side, although a mere handful, they would overcome the world. For what lover would not choose rather to be seen by all mankind than by his beloved, either when abandoning his post or throwing away his arms? He would be ready to die a thousand deaths rather than endure this. Or who would desert his beloved or fail him in the hour of danger?

Now in this case they were gay, but the US forces are, unlike Thebes, of both genders.

Edited August 29, 2010 by Boiler

[BinhJerome 14]

FWIW I will add my 2 cents.

The requirements (or lack thereof) for meeting in person multiple times, engagement parties, love, emails...whatever...are regarding PETITION APPROVAL. A Petition is not a visa. It is an approved request to request a visa. It says that USCIS says you meet the qualifications to APPLY for a K-1 visa. That is all. Period, end of story.

There are no "laws" which specify exactly what is required for the issuance of a visa and stae department rules, allowed by the law, designate this responsibility to the conculates in the countries they administer visas for. The "law" requires that the DOS determine that the visa is not being used to circumvent other immigration law. That is all. HOW they do that, is not specified.

The idea put forth that consulates are "required" to deny a certain number of visas or that there are a certain number of visa numbers available is preposterous and wholly ignores facts. People that conduct themselves in ignorance of facts are going to have problems in life...including getting visas issued.

That a "well known" attorney has decided to make a lot of money from this case does not, in itself, give the case any merit. The merit of a legal case is based on facts, not how many or which attorneys will cash in on it. The FACTS in this case simply don't support it winning. Even if handled on "contingency" (I doubt it) or "pro-bono" it could be a very profitable publicity stunt at $2000 per petition. One has to bear in mind that attorneys exist in this process largely as parasites. Kind of like a tapeworm insisting you "need him" to stay thin and healthy. Absent the ability to make money in large denominations, attorneys vanish into thin air.

The idea that a petitioner is being denied "due process" when the petitioner has received an APPROVED petition is preposterous as well. You will complain because you GOT what you asked for? And Jim is correct, unless they forcibly remove money or property from you, there is no "due process" due to you.

The vast majority of denied VISA APPLICATIONS are because the visa applicants were not prepared for what was needed at that consulate. Whether or not you agree that what that consulate requires is "reasonable" doesn't matter.

It will be interesting, but other than a publicity stunt and fundraiser for attorneys I just do not see this going anywhere. My concern is that a court decision in "favor" of the plaintiffs, could result in stricter laws for ALL of us. I would not expect the DOS response to an unfavorable ruling to be to open the gates and let everyone in Vietnam, Morroco, Pakistan, Syria and Iraq have a visa under the same requirements applied in, say, Canada. I would expect them to apply Vietnam rules to Canada instead.

Are you a lawyer? Have you talked to him? If the answer is NO to either or both of them then you are clearly stating opinion that is 100% unfounded. He is not charging anyone to be added to the petition, maybe it is or maybe it isn’t a stunt for free publicity, or that he wants to make money. We don’t know, this is the beginning stages, and from what I understand this is more about policy change than money, but there should be a money end when all the smoke clears if it goes our way, but with this being the US government then it will probably not be very much for anyone. And you are correct, they want the same standard everywhere, there is I no way shape or form that this is wanting easier restrictions, just better clarification along with them having some standard when they try to pass judgment, the K1 visa is a non immigrant, and it was designed for the major checks coming after the beneficiary arrives in the US, not before it arrives, after all it is a NON immigrant, and not a immigrant such as the CR1, and yet the CO’s seem to treat the K1 Visa like the CR1 visa when they are totally separate. Jerome

[Boiler 45,501]

the K1 visa is a non immigrant, and it was designed for the major checks coming after the beneficiary arrives in the US, not before it arrives, after all it is a NON immigrant, and not a immigrant such as the CR1, and yet the CO’s seem to treat the K1 Visa like the CR1 visa when they are totally separate. Jerome

That was not my personal experience.

Nor have I come across this statement before.

[fred n Dao Honey 0]

I am happy to see some inteligent discussion on here. I just wanted to add two cents with a quote from the originator of our most prestigious document the United States Declaration of Independence. The Consulate in all countries seem to interpret their own rules.

"Laws are made for men or ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for metaphysical subtleties which make them mean everything or nothing at pleasure." - Thomas Jefferson 3rd President of the USA.