Bringing my Ecuador wife to US

[Danial/Olga 0]

You need to know and overcome their reasons for having denied the K-1. Did you receive a NOID from USCIS in regard to the K-1 attempt? If so, you need to respond to it, unless you proactively and formally withdrew the I-129F fiance petition. There are plenty of posts about that.

[Danial/Olga 0]

The letter from the Consulate in Guayaquil says denied (221-g)

Denied because can't receive visa just for marriage of convienence.

Our interviewer at the Consulate was a woman...and seemed very unfriendly to my fiance and I. That's when she told us that our language barrier was a problem and our papers were send to Administrative Decision. My fiance received the letter from DHL a few weeks later stating denied.

Never received a NOID. Is that an issue before I file the I-130??

Thanks!!

[JimVaPhuong 4,863]

The letter from the Consulate in Guayaquil says denied (221-g)

Denied because can't receive visa just for marriage of convienence.

Our interviewer at the Consulate was a woman...and seemed very unfriendly to my fiance and I. That's when she told us that our language barrier was a problem and our papers were send to Administrative Decision. My fiance received the letter from DHL a few weeks later stating denied.

Never received a NOID. Is that an issue before I file the I-130??

Thanks!!

You wouldn't get a NOID for the K1 petition. NOID means Notice Of Intent to Deny. The petition has already been approved so they can't deny it now. What they can do is revoke the approval of the petition. You'd get a Notice Of Intent to Revoke, or NOIR.

USCIS approved the petition, so as far as USCIS is concerned your wife was eligible for a visa. The consular officer thought your relationship was a sham for the purpose of evading immigration law so they made a discretionary decision to deny the visa. USCIS doesn't have the authority to issue a visa, and the consulate doesn't have the authority to revoke the approval of the petition, so the case is effectively left open unless something is done about it. The process they've devised for closing the loop and ending the case is for the consulate to return the petition to USCIS with a recommendation that USCIS revoke the approval of the petition. What the consular officer is saying is that there never was a petitionable relationship, and that the petition never should have been approved. They may also accuse the beneficiary of misrepresenting the nature of the relationship, and lying about a material fact. Material misrepresentation is covered by INA section 212a, paragraph 6C. An accusation of material misrepresentation is called a "P6C" marker.

The normal procedure with most types of petitions would be for USCIS to readjudicate the returned petition, in light of the consular officer's accusations, and make a determination whether or not the approval of the petition should be revoked. However, they have an additional option with a K1 visa petition because the approval of the petition automatically expires four months after it was approved unless an immigration officer decides to extend the approval. USCIS could just allow the petition to expire, which closes the loop and ends the case. An expired petition isn't the result of any derogatory decision against either the petitioner or beneficiary, so the petitioner would be free to file another petition for the same beneficiary. Bear in the mind that this is NOT what the consular officer asked USCIS to do - they asked USCIS to revoke the approval of the petition, thereby declaring that the beneficiary is ineligible for a visa because they are inadmissible according to the CO's findings. However, the consulate doesn't have the authority to tell USCIS what to do, and they can't force USCIS to readjudicate the petition.

The USCIS California Service Center is more likely to just allow the petition to expire. The Vermont Service Center is more likely to readjudicate the petition. If they allow the petition to expire then you'll get a letter advising you that the petition has expired, and that you're free to file another petition. If they decide to readjudicate the petition then you may not hear anything from USCIS for months, although they do usually send a letter telling you they've received the petition and that you'll be notified when a decision has been made.

If they readjudicate the petition then they could either decide that they agree or disagree with the consular officer. If they decide that they disagree then they'll reaffirm the approval of the petition and send it back to the National Visa Center, and ultimately back to the consulate for another interview. You'll get a notice from USCIS if they do this. Obviously, your wife can't apply for a fiancee visa now, so you could either ignore the K1 petition and don't respond to packet 3 from the consulate, or you could send a letter to USCIS asking that they withdraw the petition because you've married and filed for a CR1. If USCIS decides that they agree with the consular officer then they'll send a Notice Of Intent to Revoke (NOIR) to you, the petitioner.

This is where it gets sticky...

If you don't respond to that NOIR then USCIS will revoke the approval of the petition. A rational person would think this would not be a big deal because you've already married and filed a petition for a CR1, so you shouldn't really care if the K1 petition is revoked. The problem is the P6C marker. If the approval of the K1 petition is revoked then the P6C marker will be presumed to be a fact. That would mean your wife is guilty of material misrepresentation. When she shows up for her CR1 visa interview she'll be denied because she's inadmissible for having committed visa fraud. She'll be told she needs an I-601 waiver to overcome this inadmissibility, which means that YOU, the petitioner, must prove that it would be an extreme hardship to YOU if your wife isn't issued a visa and allowed to immigrate to the US. This might be difficult to do since you married in her country, you haven't actually set up a household together, you don't have any kids, and you aren't dependent on her for support or assistance. You need to prevent the approval of the K1 petition from being revoked in order to prevent the P6C marker from becoming a finding of fact. This means you MUST respond to the NOID. You usually only get 30 days to respond, and you should provide as much evidence as you've got to counter the CO's accusation.

Marc Ellis is an immigration attorney, and a member of VJ. He's written a couple of articles about what happens when petitions are returned, and how this can result in a finding of material misrepresentation against the beneficiary:

http://www.ilw.com/articles/2006,0323-ellis.shtm

http://www.ilw.com/articles/2010,0713-ellis.shtm

The law allows the petitioner to withdraw the petition at any time before the immigration benefit is approved. In the case of a K1, it means any time before the beneficiary enters the US with the K1 visa. Theoretically, you could send a letter to USCIS withdrawing the K1 petition now. However, withdrawing the petition won't stop an administrative review. If USCIS has decided to readjudicate the returned petition then they'll just file your letter until after they've made a decision. If they reaffirm the approval then they'll go ahead and withdraw the petition at your request. If they send a NOIR and ultimately revoke the approval then there will be no need to respond to your letter.

If you receive the letter telling you that the K1 petition has expired then you might not have to worry about it. However, CSC has been using a sneaky tactic in some cases. They send the letter advising the petitioner that the returned petition has expired, and then when the petitioner submits another petition they send a NOID citing the reasons the consular officer used when refusing the visa. There's a thread about this tactic here:

http://www.visajourney.com/forums/topic/245030-k1-noids-at-california-service-center/

Whether you get a NOID or a NOIR you must respond. Revocation of the K1 petition or denial of the CR1 petition could result in your wife being inadmissible to the United States, which could complicate your situation dramatically.

[Danial/Olga 0]

Okay friends....I am working on the I-130 form and have a question.

It asks has my relative ever been under immigration proceedings....do I answer yes because we filed for a K-1 Fiance Visa but were denied? Or no because our case never got that far!!

Thank you all!!!!!

Danial and Olga