denial 212 a6c1

[NY_BX 397]

And it's the 'materiality' that is the issue..the false information (in whatever form) must directly impact the alien's ability to legitimately get a visa. For example, if the info presented fooled the VO initially, but they discovered the fraud, say, the next day, the applicant is toast. And even if the phony documents were crafted poorly, all that matters (usually) is if the VO believes that had those documents been bona fide,a visa would have been issued, that is just about the standard for a 6C finding. It does not (normally) require the same standard as might be the case in a court of law in this country....it will be interesting to hear any follow up...still some missing parts to this story.

But if the alien said he graduated college when in fact he did not, that fact, true or false, would not have any effect on obtaining a family based immigrant visa (it would and could effect getting an employment-based IV)..so it sounds like the alien spouse did something, wrote something, presented something that really rang the bell....

Fantastic observations and insightful thoughts. So, there's a greater chance the denial was because of something HE did (or said) rather than her undisclosed secret marriage to his brother. Or worse, it could be a combination of both. If that's the case, for example- he committed fraud and she lied- would that trigger a lifetime ban? Is there any chance the denial could be overturned?

[Deputy Purple 1,294]

Then why is it worded "by fraud or willfully misrepresenting a material fact ", that isn't my rewording of it but the code as it's written in INA...

It seems that the way it's worded someone could be denied for simply presenting any fraudulent information which would make sense.

FWIW, I'm not trying to dispute that there could be something else happening here.

And it's the 'materiality' that is the issue..the false information (in whatever form) must directly impact the alien's ability to legitimately get a visa. For example, if the info presented fooled the VO initially, but they discovered the fraud, say, the next day, the applicant is toast. And even if the phony documents were crafted poorly, all that matters (usually) is if the VO believes that had those documents been bona fide,a visa would have been issued, that is just about the standard for a 6C finding. It does not (normally) require the same standard as might be the case in a court of law in this country..

Again, I agree the Alien must have said or done something at the interview (as I originally pointed out while everyone was still hung-up on the USC's Petition)...

What I don't understand is if any fraudulent activity during the application process that isn't related to a material fact is irrelevant then they even include "fraud or" in the quoted section. But that's irrelevant here...

Back on the subject though. If the CO felt that the current marriage is fraudulent and only for immigration purposes as a result of the discovery of the marriage which the Alien then denied even existed could that not trigger the CO believing that a material fact was being misrepresented (that being the bonefideness of the marriage)?

I know I'd have serious doubts about a marriage where the husband wasn't aware his wife is also his ex-sister-in-law.

[melcom1122 4]

In this situation there could be some suspicion that the brothers were part of some fraud together, ie they were each trying to get into the U.S. This is assuming facts not presented here. It also assumes the beneficiary withheld information about it and was caught somehow.

But I agree, for the 6c to be applied, it should mean there was a problem with the alien beneficiary. Or, I would hope the USCIS or State Department wouldn't penalize a beneficiary because the USC petitioner lied/withheld some information. I can't imagine the severe penalty of a possible life-time ban because your USC spouse did something (or forgot something).

[momof1 205]

Then why is it worded "by fraud or willfully misrepresenting a material fact ", that isn't my rewording of it but the code as it's written in INA...

It seems that the way it's worded someone could be denied for simply presenting any fraudulent information which would make sense.

FWIW, I'm not trying to dispute that there could be something else happening here.

The fraud or misrep finding does not have to be related to the current petition. For example, a child was brought from the Phillipines by an "uncle" with a USC birth certificate. Said child would be permanently banned for false claim to US citizenship that happened when he was a minor by someone else. Another example, someone uses fraudulent documents to enter the US to apply for asylum...later marries a USC but is inadmissible due to fraudulent entry. Yet another example, visitor visa applicant lies about being married because he thinks his chances of getting approved are greater if he says he's married in his home country...immigrant later overstays and marries a USC/inadmissible for lying to CO for visitor visa. Or, my favorite, someone committed petty crime in the UK and when they visited the US on the VWP they didn't tick the box for crimes of moral turpitude...they didn't know it was a CIMT yet they were found inadmissible for fraud due to that in addition to the criminal issue. These are all true cases...one of which was mine.

The sticking point with fraud is was the omission willful and was it material. Had she mentioned she was married but didn't have the appropriate divorce paperwork, would they have been approved? No. Therefore the omission becomes central to the petitioner and immigrant's application.

I believe that we don't know all of the details of the case. The CO obviously knew the wife was married and when/if he was asked he said no she was not. This leads the CO to believe that he was lying and the fraud finding.

I believe a motion to reconsider may be an option if one doesn't want to pursue the waiver route. There are numerous legal remedies for this situation but, as I said before, they are neither easy or guaranteed.

EDIT TO ADD:

I should note that in the last situation I mentioned about the CIMT and VWP, the fraud finding was overturned by the AAO after waiver denial in London. COs can apply any ban that they like whether it's valid or not. Your only option is to file a motion to reconsider, file a waiver anyway arguing against the inadmissibility finding, and even if it is denied at that stage appealing to the AAO arguing against the inadmissibility .

Edited February 4, 2012 by momof1

[melcom1122 4]

Again, I agree the Alien must have said or done something at the interview (as I originally pointed out while everyone was still hung-up on the USC's Petition)...

What I don't understand is if any fraudulent activity during the application process that isn't related to a material fact is irrelevant then they even include "fraud or" in the quoted section. But that's irrelevant here...

Back on the subject though. If the CO felt that the current marriage is fraudulent and only for immigration purposes as a result of the discovery of the marriage which the Alien then denied even existed could that not trigger the CO believing that a material fact was being misrepresented (that being the bonefideness of the marriage)?

I know I'd have serious doubts about a marriage where the husband wasn't aware his wife is also his ex-sister-in-law.

[TBoneTX 44,920]

OP, are you going to write something, or just post the quoted words of others?

We need to know EVERY question and EVERY answer from the interview, as completely and accurately as possible. So does the attorney whom you NEED to hire as your chief priority.

[sachinky 464]

The sticking point with fraud is was the omission willful and was it material. Had she mentioned she was married but didn't have the appropriate divorce paperwork, would they have been approved? No. Therefore the omission becomes central to the petitioner and immigrant's application.

^This.

[melcom1122 4]

OP, are you going to write something, or just post the quoted words of others?

We need to know EVERY question and EVERY answer from the interview, as completely and accurately as possible. So does the attorney whom you NEED to hire as your chief priority.

[melcom1122 4]

sorry guys i haven't written in a while because im tired of getting criticized. i have been reading everyone's comments and about how the denial may be because of my husband and not me, and i spoke to him and he told me that the only thing he can think of is how he has not legally declared his son yet on his sons birth certificate. the reason is that in the Dominican republic you are allowed to apply for birth certificates later on. his sons mother applied for the birth certificate when his son was about one and at the time she was not getting along with my husband and didnt want my husband or me to be part of the babys life so she did not let allow my husband to claim him. only until a couple of weeks ago did she give my husband permission to claim his son. and since we have been so busy getting ready for the interview and lack of money he has not gotten around to it.

now let me clear this up, we are not trying to bring his son here at this moment, we simply mentioned his sons name on the i 130 and on the 230 ds.

this is how the interview went

c0- "do you guys have kids"

my husband-"yes"

me-"no he has a son we dont have kids together"

then my husband was sent to get fingerprints and a couple hours later we get called back to a different person

co-"do you guys have kids"

me-"no"

my husband-"i have a son"

c0-"how old"

my husband -"three"

co-"can i see proof of marriage any bank statements"

i went to get receipts of money i send him ,co cuts me off says let me see pics

we only had small amount of pics

co- "this is it, this is all the pics you have..leave me alone with you husband please"

when he calls me in he asks me the following questions

when did you guys first meet? 2001

where? my cousin was married to his sister,i was on vacation staying in his cousins house

so you go a lot to yours cousins house? well every time i went on vacation which was almost every summer since i was 12

ok.when was your first kiss? 2003, the next time we saw each other

first time were intimate?2008

when in 2008? the summer June 2008

if you guys have been supposedly together since 2001 why does he have a three year old son? he had a baby, with someone else.

whats the babys name? i said his name

the babys mothers name? i said her name

last time you guys had sex? Saturday

last time you were here in the d.r? three months ago October

then he starts typing in on the computer, i see his facial gestures look surprise i see him look through our documents looking for something then he called us ytogether and told us visa was denied.

i asked him why?

he says not enough evidence. i tell him that i have more proof here he refuses to look at proof, and we leave.

^This.

^This.

[melcom1122 4]

^This.

??? i dont understand for it to have been material as explained before it would have to have influenced the final decision. i thought it was explained by a comment above that my previous marriage or divorce can not be a material fact because it should not have affected my outcome. im confused, but either way i am in the process of getting a new attorney to help me out.

[sachinky 464]

I am not too familiar with the misrep charge but this is my layman's understanding. This is just, IMO, but in this case the omission IS willful and material. Like momof1 pointed out, had you disclosed your previous marriage but simply didn't have your divorce papers, would you have been approved? I am guessing not. The difference between material misrepresentation and misrepresentation is that the fact that is in question must be central to the petitioner/applicant's case. Meaning, if the fact had been known to be a lie would a visa be issued? For example, if you state that you went to college when in fact you did not, you are misrepresenting a fact. However, while that is a lie, it is not a lie that is pertinent to your family-based visa. However, that very example could very well become a sticking point if you were applying for an employment visa or a student visa for post-grad studies.

Does that make sense? Anyway, you're in too deep to proceed without legal help. I hope you find a good lawyer.

[Deputy Purple 1,294]

So let's see if I have this right:

At the interview you both claimed to have "been together" since 2001.

The interviewer now has two facts that contradict this:

1) Your 3 year marriage to his brother.

2) His 3 year old son with another woman.

So here is what the CO saw:

His former sister-in-law who is now his wife has petitioned him to come to the US.

Both of you have concealed the fact that you were previously married to his brother.

Since having a bonefide marriage is material to the issuance of a Spousal Visa then anything that casts doubt on the bonefideness of the marriage is also material to the Visa.

Your situation surely casts doubts on your marriage. Lets be honest here, to a reasonable person it could easily appear as if you divorced your husband and married his brother to help bring him (and eventually his child and the mother of his child) to the US. I mean why else would you conceal the marriage?

Of course your husband's denial of any knowledge of the previous marriage just isn't going to have the ring of truth. How could he not know his brother is married (for three years none the less).

As others have said at this point your only chance is a good lawyer who is experienced with overturning Material Misrepresentation Charges.

[melcom1122 4]

I am not too familiar with the misrep charge but this is my layman's understanding. This is just, IMO, but in this case the omission IS willful and material. Like momof1 pointed out, had you disclosed your previous marriage but simply didn't have your divorce papers, would you have been approved? I am guessing not. The difference between material misrepresentation and misrepresentation is that the fact that is in question must be central to the petitioner/applicant's case. Meaning, if the fact had been known to be a lie would a visa be issued? For example, if you state that you went to college when in fact you did not, you are misrepresenting a fact. However, while that is a lie, it is not a lie that is pertinent to your family-based visa. However, that very example could very well become a sticking point if you were applying for an employment visa or a student visa for post-grad studies.

Does that make sense? Anyway, you're in too deep to proceed without legal help. I hope you find a good lawyer.

i did have the divorce papers,

[NY_BX 397]

sorry guys i haven't written in a while because im tired of getting criticized. i have been reading everyone's comments and about how the denial may be because of my husband and not me, and i spoke to him and he told me that the only thing he can think of is how he has not legally declared his son yet on his sons birth certificate. the reason is that in the Dominican republic you are allowed to apply for birth certificates later on. his sons mother applied for the birth certificate when his son was about one and at the time she was not getting along with my husband and didnt want my husband or me to be part of the babys life so she did not let allow my husband to claim him. only until a couple of weeks ago did she give my husband permission to claim his son. and since we have been so busy getting ready for the interview and lack of money he has not gotten around to it.

now let me clear this up, we are not trying to bring his son here at this moment, we simply mentioned his sons name on the i 130 and on the 230 ds.

this is how the interview went

c0- "do you guys have kids"

my husband-"yes"

me-"no he has a son we dont have kids together"

then my husband was sent to get fingerprints and a couple hours later we get called back to a different person

co-"do you guys have kids"

me-"no"

my husband-"i have a son"

c0-"how old"

my husband -"three"

co-"can i see proof of marriage any bank statements"

i went to get receipts of money i send him ,co cuts me off says let me see pics

we only had small amount of pics

co- "this is it, this is all the pics you have..leave me alone with you husband please"

when he calls me in he asks me the following questions

when did you guys first meet? 2001

where? my cousin was married to his sister,i was on vacation staying in his cousins house

so you go a lot to yours cousins house? well every time i went on vacation which was almost every summer since i was 12

ok.when was your first kiss? 2003, the next time we saw each other

first time were intimate?2008

when in 2008? the summer June 2008

if you guys have been supposedly together since 2001 why does he have a three year old son? he had a baby, with someone else.

whats the babys name? i said his name

the babys mothers name? i said her name

last time you guys had sex? Saturday

last time you were here in the d.r? three months ago October

then he starts typing in on the computer, i see his facial gestures look surprise i see him look through our documents looking for something then he called us ytogether and told us visa was denied.

i asked him why?

he says not enough evidence. i tell him that i have more proof here he refuses to look at proof, and we leave.

First red flag, and a huge one: You met in 2001. It's 2012 and you went all the way back to 2001 when you all were in grade school. If I was the CO I would've stopped the interview right there.

Second red flag: "interfamily" marriage. Your cousin was married to his sister, making you somewhat of a 3rd political cousin, not to mention, ex-sister-in-law. The CO already knew that. That said, one of the most common scams is to have family members connect friends and family- even co-workers- to help them migrate.

Third red flag: "Ilegitimate" son At a time where you claim you all were together and you were married to his brother.

Fourth red flag: Money CO asks for proof of marriage and bank statements and you retrieve receipts of money YOU send HIM. In the CO's mind this is a business transaction. You lied about your marriage and he has a 3 year old son. The CO may believe your "husband" is using you. I can see the frustration in the CO's face when s/he said "show me pictures." I have an image of this scene in my head. Were you organized with all the proof, classified by date and material? This is a serious event and we all must be prepared down to our attire. Carrying on....

Then the CO asks incredibly, outrageously invasive questions, basically letting you know on your face that there's no way you're real. Really? first kiss and sex? Is not like you have proof of that!

Now, for the serious thing: What happened when you left them alone? That's were the meat of this story is. The CO was clearly pissed at you upon your return. By the way, sounds like s/he was somewhat unprofessional, I must say. Anyways, I believe the CO asked these exact same questions to your husband and then to you when he called you back. Maybe the answers didn't match. Maybe the CO revealed you were married before or hinted something.

You're being criticized exactly because of what you showed here: an incredibly poor interview after lying on your documents. It seems like we're having the CO's same reaction. I can only imagine being a consular and having to deal with this on a daily basis. I surely do not envy their work. We do not know you, so you can't take this personal. We are judging you exclusively on this dilemma. In order to give you proper advice, we have to be judgmental. Only because you must somewhat adjust your behavior to pass these interviews.

You really do need a good lawyer and prepare yourself for a bigger battle given that he'll legally claim his son.

Edited February 4, 2012 by NY_BX

[LIFE'SJOURNEY 970]

OP, really I don't know why you continue to post all of your personal business on the internet, You just need a lawyer. Everyone on here is just guessing and some are just plain out making statements that don't even make sense.

The step-son has no bearing on your case illegitmate or legimate. Half of the beneficaries on this site had children outside of a marriage. If you want to continue to receive this quessing game solution to your problems from the VJ posters then continue to post, otherwise, spend your time and money wisely and seek a qualified lawyer.

Edited February 4, 2012 by LIFE'SJOURNEY