Steps to refile K-1 after failed interview

[BinhJerome 14]

I don't need to call the USCIS misinformation line. We had a K1 interview August of 2008 which was denied because my husband couldn't provide details of my classified work. The petition returned to US months later. We refiled in April 2009 , the first petition was under review online, I did an service request in May 2009 on the 1st petition after I received the NOA1 from the second petition and was told it was still under review. In August 2009 the second petition was approved and the first petition was expired. If people can't have 2 petitions in the system then how can a CR1 and a K3 co exist ? People get would denied for one and move forward with the second. ( back in the days when K3 lived with the CR1 )

It sounds like in your case, the person you talked to did not know or had the wrong information. The K3 was replaced with the CR1. With the only exception being a K1 is not closed out, if you were to get married, you would no longer be eligible for a K1, and only a K3 immigrant or a CR1 immigrant visa. So this is the only way that a petitioner might have 2 cases out at the same time, and only because they are different types of visa’s, they will not allow multiple visa’s that are the same to be processed at the same time, this does not mean accidents or things don’t happen from time to time. With your interview being in August of 2008 and your second petition being in April of 2009, this is 8 months later, and rarely are cases that are actually denied not sent back within that amount of time, the usual time is about 3 or 4 months, occasionally 6 months, but most of those that are sent back that take 6 months before they are classified as expired or reaffirmed they are usually already done a month or two prior and they are just sitting in a pile waiting to be sent out so that the petitioner will get the notice. With our case, it took 4 months to get the final decision (expired) but the decision was dated at 3 months, so our sat somewhere for over a month (33 days to be exact.) Many people can tell you that they have called and told nothing new, then the next day they get a letter saying something totally different, it is because most people you talk to do not know or do not have updated information in front of them. You might have slipped through the cracks, but by looking at your date, I would say the person who told you it was under review was misinformed or had non updated information. And even in your own statements, when your second petition was approved your first was expired, you might have actually sent it to them before it was expired, this is possible. But before they approved the second the first must be dealt with, and this is the real point I am trying to make.

Jerome

[NigeriaorBust 4,087]

I have a written reply to my service request dated the end of May 2009 that my petition was under review at that time. A service request means they actually have to look at the status of the petition and answer you in writing. I don't know what everyone wants to believe that you have to wait until they officially tell you it is expired. They gave you a notice that the approval of the petition is valid until a specific date and once that date is past you can assume that the petition is expired. It was Mark Ellis that had me file the second petition while the first was still active. In fact had I had a form that I needed from Joseph we might have sent the second petition in almost 2 months earlier. If Marc Ellis says you can file the second petition without waiting on CSC to inform you that your K1 has expired I think he knows the immigration law better than people that hear about someone they know supposedly doing something or most contract people answering the USCIS misinformation lines. Most likely they didn't address the first petition properly when sending in the second and that is what caused their issues. Just because someone in poorly executed do it yourself attempt fails doesn't mean that it can't be done. By misinforming people here that it is impossible you are causing unnecessary delay in their process. Is it your desire that these couples remain apart any longer than necessary ?

It sounds like in your case, the person you talked to did not know or had the wrong information. The K3 was replaced with the CR1. With the only exception being a K1 is not closed out, if you were to get married, you would no longer be eligible for a K1, and only a K3 immigrant or a CR1 immigrant visa. So this is the only way that a petitioner might have 2 cases out at the same time, and only because they are different types of visa’s, they will not allow multiple visa’s that are the same to be processed at the same time, this does not mean accidents or things don’t happen from time to time. With your interview being in August of 2008 and your second petition being in April of 2009, this is 8 months later, and rarely are cases that are actually denied not sent back within that amount of time, the usual time is about 3 or 4 months, occasionally 6 months, but most of those that are sent back that take 6 months before they are classified as expired or reaffirmed they are usually already done a month or two prior and they are just sitting in a pile waiting to be sent out so that the petitioner will get the notice. With our case, it took 4 months to get the final decision (expired) but the decision was dated at 3 months, so our sat somewhere for over a month (33 days to be exact.) Many people can tell you that they have called and told nothing new, then the next day they get a letter saying something totally different, it is because most people you talk to do not know or do not have updated information in front of them. You might have slipped through the cracks, but by looking at your date, I would say the person who told you it was under review was misinformed or had non updated information. And even in your own statements, when your second petition was approved your first was expired, you might have actually sent it to them before it was expired, this is possible. But before they approved the second the first must be dealt with, and this is the real point I am trying to make.

Jerome

[BinhJerome 14]

I have a written reply to my service request dated the end of May 2009 that my petition was under review at that time. A service request means they actually have to look at the status of the petition and answer you in writing. I don't know what everyone wants to believe that you have to wait until they officially tell you it is expired. They gave you a notice that the approval of the petition is valid until a specific date and once that date is past you can assume that the petition is expired. It was Mark Ellis that had me file the second petition while the first was still active. In fact had I had a form that I needed from Joseph we might have sent the second petition in almost 2 months earlier. If Marc Ellis says you can file the second petition without waiting on CSC to inform you that your K1 has expired I think he knows the immigration law better than people that hear about someone they know supposedly doing something or most contract people answering the USCIS misinformation lines. Most likely they didn't address the first petition properly when sending in the second and that is what caused their issues. Just because someone in poorly executed do it yourself attempt fails doesn't mean that it can't be done. By misinforming people here that it is impossible you are causing unnecessary delay in their process. Is it your desire that these couples remain apart any longer than necessary ?

It is funny that you say Marc Ellis told you to file it, because with our case he told us we HAD to wait until they were done with it

[NODINK 0]

I had to refiled earlier this year. And in a letter, USCIS said it closed my case and I'm free to file a new one. Only then I started a new petition.

[NigeriaorBust 4,087]

I bet you are a vermont filer, used to be they woudl really review a return petition and CSC always expired it

It is funny that you say Marc Ellis told you to file it, because with our case he told us we HAD to wait until they were done with it

[wreath 4]

I know 3 people personally that have done this, and all petitions were sent back, checks not cashed with letters stating that the original petition MUST be closed BEFORE a new petition can be granted. Until it is closed, allowed for a rebuttal, or allowed to expire you cannot have multiple petitions. When the Embassy denies it they do not actually deny anything, the embassy only has the power to GRANT a visa, they CANNOT DENY ANY visa, only RECCOMEND it to be denied, all the denials are done stateside, not at the embassy abroad, this is why they will not allow a second petition to start until the original one has been delt with.

To the OP, you must wait until they send you notice that your case has been closed. This is a must, or many people would continue to refile as soon as they recieved a denial in hopes of getting a different CO and then getting a visa. Anyone who tells you different has been miss informed.

Jerome

i know someone that was told to refile k-1 after being denied by a famous lawyer there in hcmc. he told him everything should be good all the way back up to the interview stage.the people he told that was in fraud investigation though.they hadnt been completly denied so i dont know.

[BinhJerome 14]

i know someone that was told to refile k-1 after being denied by a famous lawyer there in hcmc. he told him everything should be good all the way back up to the interview stage.the people he told that was in fraud investigation though.they hadnt been completly denied so i dont know.

If you are talking about Mark Ellis, he told me and my fiancee we Had to wait for it to be done.

[wreath 4]

If you are talking about Mark Ellis, he told me and my fiancee we Had to wait for it to be done.

strange

[BinhJerome 14]

strange

Now for clarification, he said our petition was dead, finished, not to try and keep it at HCMC, and once it got back to the US we did not need to do a rebuttal, and once it was closed we could go ahead and refile a K1 or a CR1. I think this is where most of the confusion is, some people think it means go ahead and file while you wait, but that is not the case, I have also heard some people have refiled, and since the petition was over 4 months old and coming back on a denial that they just went ahead and expired the first petition once the second petition got to where it was accepted. So MAYBE the second petition can allow the first to expire, but as I have said I know a few people personally that got their checks sent back, because the first wasnt closed/expired. For obvious reasons they dont want multiple petitions all being floating around in approved mode, and you can only have ONE petition approved at a time or people could just do as I said earlier and simply file 3 or 4 petitions, so they would not have to wait, and the first one that got approved, then cancel the rest.

I truly believe that the best bet is to always wait until the first is either allowed to expire or until after any rebuttal or reaffirmation. Knowing the law clearly states you cannot have multiple petitions at the same time for a K1 visa, I would not try to push the theory that a few people might have truly still had an active petition and the second canceled the first. I truly think that most of the people were given bad information, or all the computer systems were not up to date when information was given, especially because I have personally seen 2 letters stating that they were not allowed to have 2 open petitions at the same time and they needed to wait for final judgement on the first before they could file the second.

Jerome

[Dau Que 6]

Thank you so much for replying !!!

I understand my case must be closed before filing again.

I know I must wait for the US Consulate General-HCM to return the case to the USCIS. My fianceé stated that it could be up to 1 year. Does anyone know how long it takes the US Consulate General-HCM to send the case back to the USCIS?

Is there anything I can do to expedite this process? I'm planning on visiting my Congressman, Gary Ackerman's office Thu morning (11.11.10). Should I request any assistance? I don't want to cause more problems.

I've been asking around and some say that it's faster to accept the denial then do a rebuttal. Can someone confirm this?

Regardless, I plan on arguing why the US Consulate General-HCM denied me per everyone's replies.

To answer some common questions on the board.

My degree is a BS in Industrial Hygiene-Environmental Toxicology. I only told my fianceé once but wasn't even sure how to say it in Vietnamese. I said it had to do with Chemistry. It was my fault I did NOT follow up with her. We talked about my college, degree, etc and we are clear.

My company and colleagues/boss. She forgot the name of the Pharma Advertising firm I presently work for. I started in March 2nd 2009 and filed the Form I-129F, Petition for K-1 Fiancée on July 7th 2009. My previous job was at an investment bank and I hated it. I didn't care for my boss or my colleagues. I was a manager and laid off entire departments. I didn't feel like "whining" to my fianceé when I'm pretty well off compared to distant relatives and my fianceé in Vietnam. We talked about my employers, names of colleagues at work, neighbors, neighbors names etc and we are clear.

My immigration to the US was from a helicopter at the US Embassy to a ship then to Gaum, then to Pennsylvania then to Massachusetts. Totally my fault that I did NOT fully explain this to her. This is something my parents never really talked about. My mom still screams at night after 30+ years. My mom was a secretary for the US Embassy and my dad was a medic in the SVA (South Vietnamese army). We lived in a poor area and everyone was threatening my mom and dad. The neighbors said they would report our family to the Viet Cong when they take over the South. The Viet Cong would then kill my parents and the kids would be orphans. This would happen every day. Anyway, we hit the jackpot when we got rescued. My family couldn't make it to the roof of the US Embassy in HCM because the roof/helipad was over run by young guys forcing their way in. My family was stuck in the court yard. Since the roof/helipad was packed with people, a helicopter landed right in front of us. My mom and dad told me they were ready to die. They don't like talking about but had to ask them. My mistake that I just told my fianceé the basics. She now understands how I emigrated to the US with my family.

Marriage within 90 days. My fianceé was furious when she read this. She totally understands that we have 90 days. I (Petitioner) and my fiancée (Beneficiary) "both" wrote letters certifying intent to marry within 90 days. These letters were included in the original I-129F submission on July 7th 2009 and an updated package on July 31st 2010 for her interview. I have all our copies. We talked about a wedding but again, it was my fault that I never told her the exact date, location, place, number of people, type, honeymoon etc. We are clear now.

I'm planning on doing an engagement party in Feb/Mar of 2011. All her family and my mom/boyfriend. My dad/girlfriend can't make it.

If anyone has any questions, please let me know.

Thanks again to everyone. I so much appreciate everyone's advice.

You're an engineer and the way you made your planning puzzled me. By the way, if you and your family really immigrated to the US like the way you said, you would NEVER use that Vietcong communist red flag in your profile! If I were the CO, I would never believe after 4 long years of knowing each other, there are still so many things you wouldn't willing to share with her (count on how many things you publicly admitted here on VS).

Refiling will make you feel better. That doesn't change the situation though. Spend more time to GET TO KNOW EACH OTHER BETTER.

PS> Do you still think going this journey alone by yourself (without an attorney) is a good and wise idea? You're en engineer and you know how to calculate the acceptable deviation right?

[Dau Que 6]

The board won't allow me to edit so I add one more post.

OP, take time to do things the proper way, rebutting their decision, then the engagement, then the wedding to show the CO your true commitment to her. Then in a year or so, file a new petition for her as a spouse. The Consulate is testing you to see if your relationship is genuine. Be patient. If she can wait 4 years, she shouldn't be impatient now. And that applies to you as well.

[clayr 35]

I feel for your experience and Jerome is right. You have to allow the first petition to be closed before you can refile.It took mine 5 months to end before I could refile. Reading the reasons why your fiance failed her interview are standard and worded the same as many others on this site. I hope the best for you but I also encourage you to have a plan B. I envy Jerome who has responded to your post many times, he lives in Saigon with his wife now and I am looking to do the same. There comes a time where you have to think what will you do if she doesn't get a visa.