How can a K-1 misrepresentation denial be overturned?

[JimVaPhuong 4,863]

Thank you for the straight answer. I understand the extent of a Senator's abilities better now.

They did make a fatal mistake and they are unfortunately paying a high price for that now.

Regardless, the conclusion the CO came to was false. They are not married.

What is the best route now? Wait in limbo for a possible NOIR to come or withdraw the petition, get married, and refile via CR-1?

Depends on the service center that receives the returned petition. CSC tends to just allow the petition to expire rather than readjudicating it, though they sometimes send a NOID for a subsequently filed petition citing the CO's reasons for returning the first petition. There's a pinned thread about this tactic. VSC is more likely to readjudicate the returned petition. They'd accept a request to withdraw the petition, but they wouldn't take any action on it until they've made a decision regarding the CO's accusations. If they decide to reaffirm then they'll withdraw the petition as requested. If they decide to revoke then they'll still send a NOIR.

If they don't want to wait for a decision on the returned K1 petition then they can get married and send a CR1 petition. They may still get a NOIR on the returned K1 petition, which the petitioner must respond to even if they've already sent a CR1 petition. If the approval of the K1 petition ends up being revoked then there could be a finding of fraud against the beneficiary. If they can avoid having the K1 petition approval revoked then a CR1 petition should fix the problem with the consulate.

[AKSinghSingh79 143]

Depends on the service center that receives the returned petition. CSC tends to just allow the petition to expire rather than readjudicating it, though they sometimes send a NOID for a subsequently filed petition citing the CO's reasons for returning the first petition. There's a pinned thread about this tactic. VSC is more likely to readjudicate the returned petition. They'd accept a request to withdraw the petition, but they wouldn't take any action on it until they've made a decision regarding the CO's accusations. If they decide to reaffirm then they'll withdraw the petition as requested. If they decide to revoke then they'll still send a NOIR.

If they don't want to wait for a decision on the eturned K1 petition then they can get married and send a CR1 petition. They may still get a NOIR on the returned K1 petition, which the petitioner must respond to even if they've already sent a CR1 petition. If the approval of the K1 petition ends up being revoked then there could be a finding of fraud against the beneficiary. If they can avoid having the K1 petition approval revoked then a CR1 petition should fix the problem with the consulate.

Thank you Jim.

Their service center is VSC. Assuming VSC follows suite and does not let it expire, wouldn't a marriage certificate be enough evidence to respond to a NOIR/NOID? The date on the marriage certificate would show a date after the consulate falsely accused them of being married therefore proving that they were wrong in their decision. Is that right or would still not be enough to overturn a NOIR?

Edited February 27, 2012 by AKSinghSingh79

[vs2011 3]

It may come up in the interview. My advice is to always be prepared to handle a potential question a CO might throw at you. I can tell you truthfully that I have read topics on VJ posted by India members that have had issues with taking a vacation together prior to marriage. The CO was convinced they were married and on their honeymoon. Be prepared to rebut this with affidavits from parents and documents showing you are not yet married.

My fiancee's parents have signed a letter - statement of parents - stating that they are happy with our engagement and are in support of our future marriage. My parents did the same. Both letters are signed and notarized. Also, the letter was signed AFTER our small vacation/trip so it shows that they knew we went on a trip together and are still in support of our upcoming marriage.

Should I get another letter from her parents stating that they are aware of the trip my fiancee and I took together and are OK with it and approved of it? Or is that overboard?

Thanks.

[P+J 47]

Yes. A marriage certificate dated after the false accusation would most likely resolve the issue. (They would not have been able to marry again and acquire a new date if there were previous records of a marriage on file) Although I'm not certain how it would affect the K1 petition because it's a fiance petition. Also, the cultural norms could also have an influence on the perception of the situation. Some countries fully recognize a religious marriage. Others do not. If the country of the beneficiary only recognizes marriage as legal after civil ceremony than there's no reason they wouldn't be in the clear. It depends on the consulate, however. As that chat with VSC director indicated, some consulates are bastards. An immigration attorney (a good one)might be useful in a situation like this.

[AKSinghSingh79 143]

Yes. A marriage certificate dated after the false accusation would most likely resolve the issue. (They would not have been able to marry again and acquire a new date if there were previous records of a marriage on file) Although I'm not certain how it would affect the K1 petition because it's a fiance petition. Also, the cultural norms could also have an influence on the perception of the situation. Some countries fully recognize a religious marriage. Others do not. If the country of the beneficiary only recognizes marriage as legal after civil ceremony than there's no reason they wouldn't be in the clear. It depends on the consulate, however. As that chat with VSC director indicated, some consulates are bastards. An immigration attorney (a good one)might be useful in a situation like this.

In this case, she is going through a country which recognizes civil marriages (in her case because they are of different religious background).

As for the K-1, they would withdraw their petition before getting married and filing the I-130.

I agree though. If she were to get married now and show the date of her marriage to USCIS then how can they dispute this case any further? She would already have proved that the CO responsible for issuing them the misrepresentation denial was incorrect.

Thanks for the response!

Yes. A marriage certificate dated after the false accusation would most likely resolve the issue. (They would not have been able to marry again and acquire a new date if there were previous records of a marriage on file) Although I'm not certain how it would affect the K1 petition because it's a fiance petition. Also, the cultural norms could also have an influence on the perception of the situation. Some countries fully recognize a religious marriage. Others do not. If the country of the beneficiary only recognizes marriage as legal after civil ceremony than there's no reason they wouldn't be in the clear. It depends on the consulate, however. As that chat with VSC director indicated, some consulates are bastards. An immigration attorney (a good one)might be useful in a situation like this.

In this case, she is going through a country which recognizes civil marriages (in her case because they are of different religious background).

As for the K-1, they would withdraw their petition before getting married and filing the I-130.

I agree though. If she were to get married now and show the date of her marriage to USCIS then how can they dispute this case any further? She would already have proved that the CO responsible for issuing them the misrepresentation denial was incorrect.

Thanks for the response!

Yes. A marriage certificate dated after the false accusation would most likely resolve the issue. (They would not have been able to marry again and acquire a new date if there were previous records of a marriage on file) Although I'm not certain how it would affect the K1 petition because it's a fiance petition. Also, the cultural norms could also have an influence on the perception of the situation. Some countries fully recognize a religious marriage. Others do not. If the country of the beneficiary only recognizes marriage as legal after civil ceremony than there's no reason they wouldn't be in the clear. It depends on the consulate, however. As that chat with VSC director indicated, some consulates are bastards. An immigration attorney (a good one)might be useful in a situation like this.

In this case, she is going through a country which recognizes civil marriages (in her case because they are of different religious background).

As for the K-1, they would withdraw their petition before getting married and filing the I-130.

I agree though. If she were to get married now and show the date of her marriage to USCIS then how can they dispute this case any further? She would already have proved that the CO responsible for issuing them the misrepresentation denial was incorrect.

Thanks for the response!

Yes. A marriage certificate dated after the false accusation would most likely resolve the issue. (They would not have been able to marry again and acquire a new date if there were previous records of a marriage on file) Although I'm not certain how it would affect the K1 petition because it's a fiance petition. Also, the cultural norms could also have an influence on the perception of the situation. Some countries fully recognize a religious marriage. Others do not. If the country of the beneficiary only recognizes marriage as legal after civil ceremony than there's no reason they wouldn't be in the clear. It depends on the consulate, however. As that chat with VSC director indicated, some consulates are bastards. An immigration attorney (a good one)might be useful in a situation like this.

In this case, she is going through a country which recognizes civil marriages (in her case because they are of different religious background).

As for the K-1, they would withdraw their petition before getting married and filing the I-130.

I agree though. If she were to get married now and show the date of her marriage to USCIS then how can they dispute this case any further? She would already have proved that the CO responsible for issuing them the misrepresentation denial was incorrect.

Thanks for the response!

Sorry for the multiple posts! Stupid phone!

[JimVaPhuong 4,863]

Thank you Jim.

Their service center is VSC. Assuming VSC follows suite and does not let it expire, wouldn't a marriage certificate be enough evidence to respond to a NOIR/NOID? The date on the marriage certificate would show a date after the consulate falsely accused them of being married therefore proving that they were wrong in their decision. Is that right or would still not be enough to overturn a NOIR?

A marriage certificate is evidence, but I wouldn't go so far as to say it's conclusive proof. It varies in inverse proportion with the degree to which it's possible to remarry or to get a marriage certificate altered by greasing the right palms. I don't know the marriage laws in India, nor how thorough their records are, but I do know that there's a different set of marriage laws depending on which religious group you belong to. Would it be possible for someone to marry in India even if they were already married and had never divorced? Would the government find out about the first marriage? How hard would it be to bribe someone into creating a marriage certificate with a different date on it?

I know that in the US the state relies entirely on the applicants to be honest when they apply for a marriage license. It would be very easy to marry in one state, and then marry again in another state. It wouldn't be legal, but it's certainly possible.

The real problem is how do you prove something didn't happen? Even if you got a letter from every local government office that registers civil weddings stating that they had no record of a marriage between the petitioner and beneficiary, that wouldn't prove they didn't have a religious ceremony somewhere. I think about the best they could do is get sworn statements from as many members of both families as possible stating that they are not aware of any marriage between them at the time of the visa interview. Certainly not the most compelling evidence, but as I said, it's very difficult to prove something didn't happen.

To be honest, I think USCIS knows the dilemma here. An adjudicator who sent a NOIR for this returned petition would have to be asking themselves what sort of evidence would convince them that the beneficiary and petitioner were, in fact, not married at the time of the interview. Put yourself in the adjudicator's shoes. What would convince YOU?

I somewhat doubt there'll be a NOIR in this case unless the consular officer presents some compelling evidence that the couple were actually married. In that case, they should focus on countering the specific evidence from the consular officer. If the only evidence the CO has is screen shots of an online photo album then that should be reasonably easy to address. A detailed letter from the petitioner explaining what event is depicted in the photos, why they chose to label it "wedding album", and affidavits from anyone and everyone who know about the photo album and their understanding of what was depicted in the photos and that the couple were not actually married.

[pushbrk 12,883]

See this is where they really get in a bind. Best bet now IS to get married, for real, get a marriage certificate and re-file for a CR-1

Appealing this will likely take longer and cost more anyway. The fact that they have a new marriage certifcate can be more easily explained than "well that is not really our wedding even though it says it is" The CO documented this and they are not just going to let it go without a dispute and that means a lot of time will pass, even if they could win. A senator is not going to go up against the consulate when they have this evidence, they can't. What can a Senator say "Yeah I know it looks like a duck and walks like a duck and quacks like a duck, but it is not a duck, trust me" Ironically,the new marriage certificate will be the best evidence they can provide that they were NOT married. But then they WILL be married so they need to file a CR-1

People really have to avoid this silliness, especially in high fraud consulates. Those kind of photos do not need to be used as evidence or posted all over the place.

Bottom line, this was dumb. They made a dumb mistake and it is going to cost them some time and money. It happens when you make dumb mistakes in life. Good news? I doubt they will attach a ban to this.

IF they do, then they should see their congressperson or Senator.

I haven't read the thread past this post. If others have concurred, great. The thing for the couple to do now is to officially and legally marry, then file the I-130 to start a CR1 visa process. Atop the I-130 package, add a letter withdrawing the original I-129F petition.

There's no sense arguing or appealing. The couple posted a wedding album and took a honeymoon. When you and your family consider the couple married, then you are "too married" for a fiancee visa and "not married enough" for a spouse visa. It's a common "Catch 22". People get into this situation when they are not "honest" and "accurate" in their communication.

Just chalk this one up as another in a long line of similar stories coming out of India. Other readers can learn from this mistake.

The Kuwait couple having an Orthodox Priest bless their "rings" at an "engagement ceremony" are playing with fire and gasoline together. Time for a change of plans. Marry or don't marry. No play marriage.

[pushbrk 12,883]

A marriage certificate is evidence, but I wouldn't go so far as to say it's conclusive proof. It varies in inverse proportion with the degree to which it's possible to remarry or to get a marriage certificate altered by greasing the right palms. I don't know the marriage laws in India, nor how thorough their records are, but I do know that there's a different set of marriage laws depending on which religious group you belong to. Would it be possible for someone to marry in India even if they were already married and had never divorced? Would the government find out about the first marriage? How hard would it be to bribe someone into creating a marriage certificate with a different date on it?

I know that in the US the state relies entirely on the applicants to be honest when they apply for a marriage license. It would be very easy to marry in one state, and then marry again in another state. It wouldn't be legal, but it's certainly possible.

The real problem is how do you prove something didn't happen? Even if you got a letter from every local government office that registers civil weddings stating that they had no record of a marriage between the petitioner and beneficiary, that wouldn't prove they didn't have a religious ceremony somewhere. I think about the best they could do is get sworn statements from as many members of both families as possible stating that they are not aware of any marriage between them at the time of the visa interview. Certainly not the most compelling evidence, but as I said, it's very difficult to prove something didn't happen.

To be honest, I think USCIS knows the dilemma here. An adjudicator who sent a NOIR for this returned petition would have to be asking themselves what sort of evidence would convince them that the beneficiary and petitioner were, in fact, not married at the time of the interview. Put yourself in the adjudicator's shoes. What would convince YOU?

I somewhat doubt there'll be a NOIR in this case unless the consular officer presents some compelling evidence that the couple were actually married. In that case, they should focus on countering the specific evidence from the consular officer. If the only evidence the CO has is screen shots of an online photo album then that should be reasonably easy to address. A detailed letter from the petitioner explaining what event is depicted in the photos, why they chose to label it "wedding album", and affidavits from anyone and everyone who know about the photo album and their understanding of what was depicted in the photos and that the couple were not actually married.

Good analysis, Jim but it won't overcome the denial. A reaffirmed petition is not a visa approval. IMO, they would be wasting their time. Marry and withdraw the I-129F at the same time they file the I-130. If they can't marry right away, just go ahead and withdraw the I-129F now and start over when they are married. They made some big mistakes playing married when they weren't. This is what happens when you try that in India. Live and learn.

[AKSinghSingh79 143]

I haven't read the thread past this post. If others have concurred, great. The thing for the couple to do now is to officially and legally marry, then file the I-130 to start a CR1 visa process. Atop the I-130 package, add a letter withdrawing the original I-129F petition.

There's no sense arguing or appealing. The couple posted a wedding album and took a honeymoon. When you and your family consider the couple married, then you are "too married" for a fiancee visa and "not married enough" for a spouse visa. It's a common "Catch 22". People get into this situation when they are not "honest" and "accurate" in their communication.

Just chalk this one up as another in a long line of similar stories coming out of India. Other readers can learn from this mistake.

The Kuwait couple having an Orthodox Priest bless their "rings" at an "engagement ceremony" are playing with fire and gasoline together. Time for a change of plans. Marry or don't marry. No play marriage.

+1000

This is why I opted for the CR-1 over the K-1. The consulates don't get a chance to play the "are they married guessing game"

I will pass this along to her.

[AKSinghSingh79 143]

A marriage certificate is evidence, but I wouldn't go so far as to say it's conclusive proof. It varies in inverse proportion with the degree to which it's possible to remarry or to get a marriage certificate altered by greasing the right palms. I don't know the marriage laws in India, nor how thorough their records are, but I do know that there's a different set of marriage laws depending on which religious group you belong to. Would it be possible for someone to marry in India even if they were already married and had never divorced? Would the government find out about the first marriage? How hard would it be to bribe someone into creating a marriage certificate with a different date on it?

I know that in the US the state relies entirely on the applicants to be honest when they apply for a marriage license. It would be very easy to marry in one state, and then marry again in another state. It wouldn't be legal, but it's certainly possible.

The real problem is how do you prove something didn't happen? Even if you got a letter from every local government office that registers civil weddings stating that they had no record of a marriage between the petitioner and beneficiary, that wouldn't prove they didn't have a religious ceremony somewhere. I think about the best they could do is get sworn statements from as many members of both families as possible stating that they are not aware of any marriage between them at the time of the visa interview. Certainly not the most compelling evidence, but as I said, it's very difficult to prove something didn't happen.

To be honest, I think USCIS knows the dilemma here. An adjudicator who sent a NOIR for this returned petition would have to be asking themselves what sort of evidence would convince them that the beneficiary and petitioner were, in fact, not married at the time of the interview. Put yourself in the adjudicator's shoes. What would convince YOU?

I somewhat doubt there'll be a NOIR in this case unless the consular officer presents some compelling evidence that the couple were actually married. In that case, they should focus on countering the specific evidence from the consular officer. If the only evidence the CO has is screen shots of an online photo album then that should be reasonably easy to address. A detailed letter from the petitioner explaining what event is depicted in the photos, why they chose to label it "wedding album", and affidavits from anyone and everyone who know about the photo album and their understanding of what was depicted in the photos and that the couple were not actually married.

I see your point. India is a tough country to handle records because it is very common to find someone who will "get you what you need" if you offer the right price.

Even if their petition was reaffirmed, I still think they have an uphill battle to face (age difference, religious difference) and therefore would be safer to withdraw the K-1 petition, get married, and start over with a CR-1 petition.

[Holliver 0]

here is a suggestion

Just refer to each other by your names. Gary and Alla worked for us quite well. Everything you do for the next 4-5 years is subject to scrutiny, remember that. You are NOT in a normal relationship until your spouse becomes a citizen.

You can also try Sweetheart, honey, darling, hunny bunny, but NOT "husband" or "wife" I never figured out how you even do that anyway. What do you say? "how is my wife today?" I don't even say that to my wife. I just say "How are you today?"

Do you have to apply for citizenship? Does that mean I lose my British passport?

[pushbrk 12,883]

Do you have to apply for citizenship? Does that mean I lose my British passport?

No and if you do decide yes, then no to the second question.

[AKSinghSingh79 143]

My fiancee's parents have signed a letter - statement of parents - stating that they are happy with our engagement and are in support of our future marriage. My parents did the same. Both letters are signed and notarized. Also, the letter was signed AFTER our small vacation/trip so it shows that they knew we went on a trip together and are still in support of our upcoming marriage.

Should I get another letter from her parents stating that they are aware of the trip my fiancee and I took together and are OK with it and approved of it? Or is that overboard?

Thanks.

I don't think that's necessary. If something were to happen at the interview, the 221g would give specifics on what they actually want.

Good luck! I truly hope that you and your fiancee have a smooth journey and do not face any problems.

[JimVaPhuong 4,863]

I see your point. India is a tough country to handle records because it is very common to find someone who will "get you what you need" if you offer the right price.

Even if their petition was reaffirmed, I still think they have an uphill battle to face (age difference, religious difference) and therefore would be safer to withdraw the K-1 petition, get married, and start over with a CR-1 petition.

Agreed. I'm not suggesting they should continue with the K1, even if it's reaffirmed. However, getting married and filing a CR1 petition doesn't automatically stop them from readjudicating the returned K1 petition. They could still get a NOIR. If they do then they need to respond to it, even if they've already filed a CR1 petition. Not responding to a NOIR would result in the K1 petition approval being revoked, which could result in a finding of fraud against the beneficiary. They would be denied the visa at the CR1 interview, and told to submit an I-601 waiver request.

[pushbrk 12,883]

Agreed. I'm not suggesting they should continue with the K1, even if it's reaffirmed. However, getting married and filing a CR1 petition doesn't automatically stop them from readjudicating the returned K1 petition. They could still get a NOIR. If they do then they need to respond to it, even if they've already filed a CR1 petition. Not responding to a NOIR would result in the K1 petition approval being revoked, which could result in a finding of fraud against the beneficiary. They would be denied the visa at the CR1 interview, and told to submit an I-601 waiver request.

I would concur that if the actually GET and NOIR, they should respond to it. However, what I recommended was that they send a withdrawal letter with the new CR1 filing, if they haven't already received an NOIR. This works.