Returning Petitions to the United States via 221g

[chiquita 0]

Well, I have emailed the NVC asd the congressional reps that have been assisting me from day 1. So we shall see......

Limah

do you think your case is still at NVC?

chi

[limah 1]

Well, I have emailed the NVC asd the congressional reps that have been assisting me from day 1. So we shall see......

Limah

do you think your case is still at NVC?

chi

No. I don't. I have emails from NVC saying to contact USCIS because the case was sent to CSC. I also got a letter in the mail saying the samething. This is the letter I speak of with the back date.

Limah

[chiquita 0]

No. I don't. I have emails from NVC saying to contact USCIS because the case was sent to CSC. I also got a letter in the mail saying the samething. This is the letter I speak of with the back date.

Limah

oh ok. how long has it been since they sent it to the service center Limah?

chi

[limah 1]

No. I don't. I have emails from NVC saying to contact USCIS because the case was sent to CSC. I also got a letter in the mail saying the samething. This is the letter I speak of with the back date.

Limah

The dates on the email and notice are a few days apart. Dated the 27th and 29th of march. But with the way things go, you think its still at NVC?

Limah

oh ok. how long has it been since they sent it to the service center Limah?

chi

[chiquita 0]

The dates on the email and notice are a few days apart. Dated the 27th and 29th of march. But with the way things go, you think its still at NVC?

Limah

since NVC said they sent it to the CSC i would guess they did that.

ask one of your reps call CSC and ask them if it has beeen received. you can have them call every few weeks until you find out.

chi

[paisita411 0]

Hi there. Sorry I've been out of touch so long. As of today, I've recieved a resonse for each of our FOIA requests (4 in total, I sent 2 each for my husband and myself, just in case they want to say that the information is his or mine). The letter states they have recieved my FOIA petition and will contact me once they have located the documents. Very standard. In the mean time, I'm planning to visit my husband for 10 days in JUNE!!! I can't wait!!! and we are documenting everything. We've gathered letters from our parents, siblings, aunts, uncles, cousins and close friends. After my trip in June, I plan to send my first batch of 'additional' evidence to the NVC Fraud Unit and the CA service center. I'm expecting that between June and August, I should recieve the NOIR letter and I WILL BE READY!!!! My spritits are high, I'm focusing on the positive, using my time effectively and being as proactive as I can. I haven't heard a thing from NVC or DHS concerning our petition, but I'm going to ask the Congressial assistant to ask for the Consular Pouch today!! As always, thank you for the support and good luck to all of you who are in the same boat!

I wanted to share the latest response from the Vice-Consul in Bogota, Colombia concerning my husband's K3 visa. As some may remember from a previous post, the visa was denied on the basis of a Labor Certification and below is the consul's response:

This petition is being returned per INA 212(A)(5)(a) 9 FAM 41.81 N6.5. The

consular officer finds that the spousal relationship is not bona fide, but

rather entered into solely for immigration purposes. This category of refusal

is used for immigrant visa applicants who are not determined to be eligible for

the immigrant visa category for which they have applied.

As a result, the petition is being returned to U.S. Citizenship and Immigration

Services (USCIS) at the Department of Homeland Security (DHS). A memo will

accompany the returned petition outlining the consular officer's reasons for

returning the petition.

DHS will provide the petitioner with a copy of this memo. The petitioner is welcome to

file a FOIA request, but DHS will already provide her with a copy of this memo

as soon as it receives the case.

As I stated previously, the decision of the consular officer is not final,

however. A decision to revoke a petition, or to return it to the U.S. Embassy

for continued processing, rests with DHS.

If the petitioner wishes to pursue his application for a fiancée visa, she or he

should contact his or her local USCIS office for further consideration.

I hope your constituent finds this information useful. If I can be of further

assistance, please do not hesitate to contact me.

[limah 1]

Well All, I am heading out in the weeeeee hours of the am.

I will be online when I return. I am going to try to get some sleep now. Im sure there is none to be had as I wish this moment would never come! DAMMIT!

Limah

PS: Dont be suprised if I stay here all night................

[chiquita 0]

Well All, I am heading out in the weeeeee hours of the am.

I will be online when I return. I am going to try to get some sleep now. Im sure there is none to be had as I wish this moment would never come! DAMMIT!

Limah

PS: Dont be suprised if I stay here all night................

awww...sweet dreams my dear

chi

[chiquita 0]

thought i would post this info here for those looking for help

RETURNING DHS / BCIS

LINK>>>>>>>

http://travel.state.gov/visa/laws/telegram...rams_1388.html#

R 251642Z FEB 04

FM SECSTATE WASHDC

TO ALL DIPLOMATIC AND CONSULAR POSTS

VISAS - INFORM CONSULS

E.O. 12958: N/A

TAGS: CVIS

SUBJECT: SOP 61: GUIDELINES AND CHANGES FOR RETURNING DHS / USCIS

APPROVED IV AND NIV PETITIONS

1. Summary. Effective immediately, all immigrant, K-1 and K-3

visa petitions being returned with a recommendation to the DHS

Bureau of Citizenship and Immigration Services (USCIS) for

revocation will be forwarded to the National Visa Center (NVC).

This cable provides guidance to posts on proper processing of

DHS petitions submitted in support of immigrant or nonimmigrant

visa applications. It cites and provides supplemental material

to already existing FAM procedural instructions. End Summary

2. Effective immediately, posts should forward all immigrant and

K-1/K-3 visa petitions being returned to the USCIS with a

recommendation for revocation to the NVC. The NVC has developed

a system for tracking all immigrant and K-1/K-3 visa petition

cases returned from posts with recommendations for revocation.

There are two reasons for the change in procedure. First, many

petitions returned to USCIS with recommendations for revocation

have been lost. In other cases, post has not received any

information from USCIS on the status of the revocation request.

The NVC will track all cases returned to USCIS and ensure that

the cases are sent to and received from USCIS in a timely manner.

Second, the NVC Fraud Prevention Unit intends to utilize the

data obtained from revocations to track trends for future

intelligence dissemination.

3. Revocation cases will be forwarded to the NVC for review and

data collection, and forwarded by NVC to the appropriate USCIS

Service Center. Cases will be returned from the USCIS Service

Center to the NVC and then routed back to the post of origin.

The NVC will follow up on cases lacking information from USCIS in

a designated timeframe. Please note that conforming changes will

be made in the relevant section of 9 FAM 42.43, N2, "When to

Return Petitions," N3 "Returning Petitions" and PN1 "Returning

Petitions for Possible Revocation" and 9 FAM 41.81 N6.6

"Additional Factors That May Raise Questions in K-1 Cases."

Nonimmigrant visa petitions other than K-1/K-3 petitions

returned with a recommendation for revocation will continue to

be sent to the appropriate USCIS Service Center.

4. All Immigrant and K-1/K-3 Visa Revocation cases are to be

returned to the following address:

National Visa Center

32 Rochester Ave.

Portsmouth NH 03801

Attn: Fraud Prevention Manager

5. Unlike consular determinations regarding visa eligibility,

which are not subject to judicial review, actions relating to

DHS petitions are potentially subject to administrative and/or

judicial review. The Department is regularly named as a co-

defendant with DHS in cases involving the return of immigrant or

nonimmigrant petitions to DHS. Therefore, it is particularly

important that consular petition adjudications are well

documented and clearly state the basis for the petition return.

6. In adjudicating visa cases involving petitions, posts should

bear in mind three important factors: A. the consular officer''s

role in the petition process is to determine if there is

substantial evidence relevant to petition validity not

previously considered by DHS, and not to merely readjudicate the

petition; B. the memo supporting the petition return must

clearly show the factual and concrete reasons for recommending

revocation (observations made by the consular officer cannot be

conclusive, speculative, equivocal or irrelevant) and; C.

consular officers must provide to the applicant in writing as

full an explanation as possible of the legal and factual basis

for the visa denial and petition retur[/b]n. Post must maintain a

copy of the returned petition, other evidence relevant to the

case, and a copy of the written notification of the denial.No readjudication of petitions

7. In general, an approved petition will be considered by

consular officers as prima facie evidence that the requirements

for classification - which are examined in the petition process

- have been met. Where Congress has placed responsibility and

authority with DHS to determine whether the requirements for

status which are examined in the petition process have been met,

consular officers do not have the authority to question the

approval of petitions without specific evidence, generally

unavailable to DHS at the time of petition approval, that the

beneficiary may not be entitled to status (see 9 FAM 41.53, Note

2, 41.54 Note 3.2-2, 41.55 Note 8, 41.56 Note 10, 41.57 Note 6,

and 42.43 Note 2) due to fraud, changes in circumstances or

clear error on the part of DHS in approving the petition.

Conoffs should not assume that a petition should be revoked

simply because they would have reached a different decision if

adjudicating the petition.

8. When a petition is returned to DHS, if DHS concurs with the

officer''s recommendation, DHS regulations require DHS/USCIS to

provide the petitioner notice of intent to revoke, and to allow

the petitioner an opportunity to rebut the grounds for

revocation. DHS regulations require that, in the case of

nonimmigrant petitions, the revocation must be based only on

grounds specified in the regulations. Those grounds include

evidence that the statement of facts in the petition was not

true and correct, or that the approval involved gross error.

The FAM often only summarizes the petition approval criteria

because they are too lengthy and complicated to reproduce fully

(the H regulations, for example, contain about 25 pages of

double column material). Absent access to the full DHS

regulations, conoffs may not be aware of all of the factors

considered by DHS in approving a petition. In addition, conoffs

are normally less knowledgeable about the basis for petition

eligibility than DHS personnel; they therefore should not jump

to conclusions regarding petitions. In addition, conoffs should

return petitions only where there is specific, material and

clear evidence to provide the DHS a basis to initiate petition

revocation procedures.

Sufficiency of evidence

9. 9 FAM ''42.43, Procedural Note One states that when returning

petitions for possible revocation, "The original petition, along

with all supporting documents, shall be returned under cover of

a Form DS-3096, Consular Return/Case Transfer Cover Sheet, and a

memorandum supporting the recommendation for revocation. The

report must be comprehensive, clearly showing factual and

concrete reasons for revocation. The report must be well

reasoned and analytical rather than conclusory. Observations

made by the consular officer cannot be conclusive, speculative,

equivocal or irrelevant." The criteria cited in this note

derive from the Board of Immigration Appeals case, Matter of

Arias, in which the Board determined that the memorandum

supporting a petition return did not constitute "good and

sufficient cause" for petition revocation, because it consisted

of "observations of the consular officer that are conclusory,

speculative, equivocal, or irrelevant to the bona fides of the

claimed relationship".

10. Memoranda supporting petition returns should be scrutinized

carefully and objectively, bearing in mind that they may become

relevant in litigation. The memoranda should be based on

specific factual evidence, rather than conclusions, and should

be clearly reasoned. For example, a statement that unnamed

neighbors told a fraud investigator that a couple was not

married is likely to be viewed as of relatively little value

compared to a statement that names the neighbors, explains the

nature of their relationship to and knowledge of the couple, and

sets out the specific facts that led to the conclusion that the

couple was not married. Signed statements are of greater value

than second hand reports. Where a statement is prepared in

English by a non-native English speaker, it should be proofread

carefully. Posts can consult with CA/VO/L/A on cases where

there are questions or concerns over the sufficiency of evidence

cited in the memo supporting a petition return.

Notice to Applicant

11. INA 212( requires the conoff in most cases to "provide the

alien with a timely written notice that- (A) states the

determination, and ( lists the specific provision or

provisions of law under which the alien is inadmissible." 9

FAM 42.81 Procedural Note one instructs the conoff to provide:

"1) The provision(s) of law on which the refusal is based; (2)

The factual basis for the refusal (unless such information is

classified); (3) Any missing documents or other evidence

required; (4) What procedural steps must be taken by the

consular officer or Department; and (5) Any relief available to

overcome the refusal."

12. There are legitimate reasons why in some cases a conoff

should not release all information relating to a visa refusal;

such reasons could include classification of the information,

confidentiality concerns, the need to protect an informant, or

the "third agency rule" (information from another agency should

only be released with that agency''s permission). However,

absent such considerations, conoffs should provide the applicant

with the full factual basis for a visa refusal, as well as a

reasonable opportunity to overcome the finding. This is

particularly important to ensure that the Department''s interests

are protected in any subsequent litigation. It is important

that conoffs maintain a record at Post showing that Post

provided a written notice of the legal ground for refusal to the

applicant, and, if possible, the factual basis for the refusal

(this will normally consist of a copy of the OF-194). Conoffs

are also reminded that in accordance with 9 FAM 42.81 Procedural

Note 9, and 41.53 Note 2.3, copies of returned petitions and all

other relevant material must be retained at Post.Additional Considerations

13. Post''s requests for petition revocation are often based upon

investigation results. Consular managers should ensure that

their fraud prevention programs actively tie investigations to

legally-pertinent factual questions, and that they are likely to

produce concrete evidence. In other words, if an investigation

that confirms conoff''s suspicions will not serve to allow DHS to

revoke the petition, post is not managing its investigations

effectively. Posts can find useful guidance on managing

investigations and other aspects of fraud prevention at CA/FPP''s

intranet site at http://intranet.ca.state.gov/fpp/fpphome.htm.

In accordance with the guidance in 9 FAM 40.63 Note 10.1, where

there is evidence that the petition was approved based on fraud,

the fraud cannot be considered to be material until the petition

is revoked, and therefore while post can enter such cases into

CLASS as P6CI, post should not pursue a 6C finding until the

petition is revoked or abandoned. As stated in 9 FAM 40.4 note

10.1, post should be aware that any evidence presented to DHS in

support of a petition revocation may be passed to the petitioner

as part of the petition revocation procedures. Finally, Posts

should review 9 FAM 40.51 Note 10 on the handling of petitions

where there is evidence that a labor certification was obtained

by fraud or material misrepresentation.

--------------------

Married in 04

"Being happy doesn't mean everything is perfect. It means you've decided to see beyond the imperfections."

ce

Edited April 16, 2007 by chiquita

[chiquita 0]

SUBJECT: GUIDANCE ON PETITION REVOCATIONS

1. SUMMARY: From time to time, most posts have occasion to return IV and petition-based NIV petitions to the approving USCIS service centers to request reconsideration and revocation. Posts should be judicious about returning petitions, since the revocation process is lengthy and the evidentiary standard that must be met to sustain a petition revocation is relatively high. Posts should not use the revocation request process as a means of disposing of problematic cases in which fraud, misrepresentation, or ineligibility for status is only suspected but cannot be clearly established. When posts have determined that a petition merits a revocation request, the case should be returned to the approving service center quickly to avoid lengthy delays in processing. To help posts with this process, CA/VO/F/P and CA/FPP are currently working with USCIS to develop a standard petition return memo and guidelines for writing effective revocation memos. END SUMMARY.

Be judicious in returning petitions

------------------------------------------------------

2. Several months ago, CA/VO/F/P conducted an informal survey of posts'' petition revocation processes to determine post practices and needs in regard to revocation requests. We learned that, for the most part, posts return relatively few petitions to USCIS for revocation. This is a positive practice from our perspective, since as a general rule petitions should only be returned to USCIS when fraud or misrepresentation or ineligibility for status can be clearly established or when the petition merits automatic revocation because of such circumstances as the death of the petitioner.

3. 9 FAM 42.43 provides general guidance on preparation of memos to USCIS requesting revocation of IV petitions. Separate sections in 9 FAM 41 on petition-based NIV categories (H, K, L, O, P) provide similar guidance on when to return those petitions. In all cases the guidance Amphasizes that USCIS approval of a petition is prima facie evidence of the applicant''s entitlement to visa status, and that consular officers should not attempt to readjudicate petitions. Rather, a consular officer should only seek revocation of the petition if the officer knows, or has reason to believe, that the petition approval was obtained through fraud, misrepresentation or other unlawful means, or that the beneficiary is not entitled to the status conferred by the petition. Petitions generally should not be returned unless the post uncovers new information not known to USCIS at the time of petition approval. The FAM cautions that posts should seek revocations "sparingly," to avoid inconveniencing the petitioners and applicants and to avoid creating an additional administrative burden for USCIS.

4. Providing solid evidence of fraud or misrepresentation in a petition relationship may not be achievable in many cases, particularly those involving marriage or relationship fraud. The FAM guidance on revocations makes this point on several occasions -- posts seeking revocations must show the "factual and concrete reasons for revocation." USCIS has asked us to remind consular officers that revocation requests must provide solid, factual evidence of fraud or misrepresentation, evidence that is likely to stand up in a court of law. In the case of sham marriages, for example, 9 FAM 42.43 N2.2 notes that USCIS requires at the least either documentary evidence that money changed hands between the petitioner and beneficiary or factual evidence that would convince "a reasonable person" that the marriage was entered into solely to evade immigration laws. Without such evidence, USCIS will be unlikely to obtain a petition''s revocation if a petitioner chooses to contest a notice of intent to revoke.

No "deep sixing"

----------------

5. Posts should not return petitions to USCIS based on mere suspicion or as a substitute for making a decision at post. If the evidence of fraud, misrepresentation, or ineligibility for status is strong enough to lead to a likely revocation, returning the petition would be warranted. However, if post believes the evidence is not likely to lead to a revocation and returning the petition would be a wasted exercise, the petition should not be returned. Returning cases that are only suspect or that appear too complex to figure out is not appropriate and only increases USCIS'' administrative burden and prevents the applicants and petitioners in these cases from obtaining the timely decision on their petitions to which they are entitled.

Use 221(g) with IV cases

------------------------

6. Please keep in mind the differences between revocation of the petition and denial of the visa application. In the absence of hard, factual evidence of fraud, misrepresentation, or ineligibility for status, consular sections are advised to issue the visa, assuming the alien is otherwise qualified, or if further investigation is warranted and holds a potential for resolving post''s concerns, use a 221(g) refusal to obtain additional information. Posts should be generous in allowing applicants every opportunity to supplement their applications following a 221(g) refusal. Many consular sections polled by VO reported that they usually use 221(g) rather than petition return to USCIS as the most effective way of handling cases in which fraud is suspected and where further Information-gathering is likely to be able to resolve the doubts one way or the other.7. VO supports this use of 221(g) with IV petitions, as returning a petition based on suspicion alone is not appropriate, and providing the applicant an opportunity to address post''s doubts is a fairer way of dealing with suspect cases. We encourage posts to use 221(g), except in those IV cases in which fraud, misrepresentation, or ineligibility for status can be clearly established. 221(g) allows petitioners and beneficiaries to supplement the initial application and in many cases overcome the refusal. Per 22 CFR (9 FAM) 42.83(, if an applicant fails to present evidence purporting to overcome the basis for the 221(g) refusal within one year of the refusal, post can initiate 203(g) termination procedures (9 FAM 42.83 N1.2).

8. 221(g) may also be appropriate for NIV petition cases. However, posts should note that there is no 203(g) termination process for NIV cases. If post obtains information not known to USCIS at time of petition approval which indicates that an applicant is not eligible for the visa category covered by the petition, the petition should be returned to the approving service center in accordance with FAM guidelines pertaining to the relevant visa category.

Don''t sit on cases

------------------

9. Once post has decided that a case warrants return to USCIS, the memo requesting revocation should be prepared expeditiously and the case returned as quickly as possible. Keeping a case for a lengthy period because officers do not have time to prepare the revocation memo is not fair to the applicant or petitioner, only invites more work in the long run in the form of congressional inquiries and calls about the case, and can even lead to litigation. It places an unfair burden on the petitioner and beneficiary, who in many cases would choose to contest the revocation but cannot do so until USCIS has received the file and sent a notice of intent to revoke to the petitioner. As a rule of thumb, posts should not allow petitions earmarked for return to USCIS to languish more than a week or two. Our e-mail poll revealed that by-and-large posts are aware of this need for quick processing and are preparing revocation memos with dispatch.

Working with USCIS to develop revocation memo guidelines

------------------------------------------------------

10. CA/VO/F/P and CA/FPP are currently working with USCIS to develop a consular return cover worksheet which posts will be able to use in returning petitions meriting revocation to the approving service centers. We are also developing guidelines which posts can use in preparing effective revocation memos that will satisfy USCIS'' evidentiary requirements and thus most likely lead to a successful guidelines which posts can use in preparing effective revocation memos that will satisfy USCIS'' evidentiary requirements and thus most likely lead to a successful revocation. We hope to be able to post this guidance on the Intranet later this summer.

11. Minimize considered.

********************************************************************************

*****

Here's more info from the Electronic Code of Federal Regulations (e-CFR), Title 22: Foreign Relations, current today as of April 12, 2007:

§ 42.81 Procedure in refusing individual visas.

(a) Issuance or refusal mandatory. When a visa application has been properly completed and executed before a consular officer in accordance with the provisions of INA and the implementing regulations, the consular officer must either issue or refuse the visa under INA 212(a) or INA 221(g) or other applicable law. Every refusal must be in conformance with the provisions of 22 CFR 40.6.

( Refusal procedure. A consular officer may not refuse an immigrant visa until Form DS-230, Application for Immigrant Visa and Alien Registration, has been executed by the applicant. When an immigrant visa is refused, an appropriate record shall be made in duplicate on a form prescribed by the Department. The form shall be signed and dated by the consular officer. The consular officer shall inform the applicant of the provision of law or implementing regulation on which the refusal is based and of any statutory provisions under which administrative relief is available. Each document related to the refusal shall then be attached to Form DS-230 for retention in the refusal files. Any documents not related to the refusal shall be returned to the applicant. If the grounds of ineligibility may be overcome by the presentation of additional evidence and the applicant indicates an intention to submit such evidence, all documents may, with the consent of the alien, be retained in the consular files for a period not to exceed one year. If the refusal has not been overcome within one year, any documents not relating to the refusal shall be removed from the file and returned to the alien.

Review of refusal at consular office. If the grounds of ineligibility upon which the visa was refused cannot be overcome by the presentation of additional evidence, the principal consular officer at a post, or a specifically designated alternate, shall review the case without delay, record the review decision, and sign and date the prescribed form. If the grounds of ineligibility may be overcome by the presentation of additional evidence and the applicant indicates the intention to submit such evidence, a review of the refusal may be deferred. If the principal consular officer or alternate does not concur in the refusal, that officer shall either (1) refer the case to the Department for an advisory opinion, or (2) assume responsibility for final action on the case.

(d) Review of refusal by Department. The Department may request a consular officer in an individual case or in specified classes of cases to submit a report if an immigrant visa has been refused. The Department will review each report and may furnish an advisory opinion to the consular officer for assistance in considering the case further. If the officer believes that action contrary to an advisory opinion should be taken, the case shall be resubmitted to the Department with an explanation of the proposed action. Rulings of the Department concerning an interpretation of law, as distinguished from an application of the law to the facts, are binding upon consular officers.

(e) Reconsideration of refusal. If a visa is refused, and the applicant within one year from the date of refusal adduces further evidence tending to overcome the ground of ineligibility on which the refusal was based, the case shall be reconsidered. In such circumstance, an additional application fee shall not be required.

[52 FR 42613, Nov. 5, 1987; 53 FR 9112, Mar. 21, 1988, as amended at 66 FR 10364, Feb. 15, 2001; 71 FR 34522, June 15, 2006]

*******************************************************************************

This is a 2001 memo from Sec. Colin Powell, Secretary of State at the time, to all consulates that I intend to follow up regarding the statutes and regs cited:

UNCLASSIFIED TELEGRAM June 12, 2001

To: ALL DIPLOMATIC AND CONSULAR POSTS - ROUTINE

Origin: VO

From: SECSTATE WASHDC (STATE 102813 - ROUTINE)

TAGS: CVIS, CMGT

Captions: None

Subject: REMINDER REGARDING VISA REFUSAL PROCEDURES

Ref: A) 99 STATE 185477 (b.) 97 STATE 114760 © 93 STATE 213853 (D) 9 FAM 41.102 AND 121

1. SUMMARY. Questions often arise about visa refusal procedures and the necessity of interviews. While we in CA will explore the possibility of expanding the circumstances under which consular officers may adjudicate visa applications without interview, I am sending this message because I want to remind all consular officers of the current rules that must be followed for refusals of visas. It is important that consular officers follow all statutory and regulatory provisions in the issuance and refusal of visas. While we are under constant pressure to find management solutions to the ever-present circumstance of decreasing resources, we must exercise caution and work within the fundamental legal framework that governs visa adjudication law as we create new ways of performing our responsibilities. This is not simply a matter of traditionalism or resistance to change. CA takes all recommendations for streamlining seriously. In evaluating suggestions to streamline the visa process, one of our primary considerations is whether the suggestion is consistent with the consular officer's unique role in adjudicating visa applications and with the principles that underpin the doctrine of consular nonreviewability. We are wary of any practices or procedures that may encroach on or in any way potentially jeopardize this doctrine, and it is partially for this reason that we have decided that mail-in applicants should not be denied on substantive grounds without an interview.

2. It is essential that all consular officers adhere strictly to the following key rules regarding visa refusal procedures, even as we continue to consider suggestions for streamlining the process:

-- Consular officers should not refuse visa applicants on substantive grounds without first giving the applicant an opportunity to be interviewed in person.

-- When refusing a visa application, consular officers should inform the applicant of the section of the law under which the visa was refused, as well as the underlying factual basis for the refusal, unless the facts are classified or SBU.

-- When the refusal is based on substantive grounds (i.e., other than 221(g)), the explanation for the refusal should be done in person at the time of interview. END SUMMARY

NO REFUSALS WITHOUT AN OPPORTUNITY TO BE INTERVIEWED

3. As stated in 9 FAM 41.121 N2, it is the policy of the Department of State to give visa applicants every reasonable opportunity to establish their eligibility to receive a visa. This policy is in keeping with the spirit of American justice and fairness.

4. In line with this policy, consular officers should not refuse a visa application on substantive grounds (i.e., grounds other than 221(g)) without first calling the applicant in for an interview. This policy is based on the fundamental principle of fairness that the alien should be given an opportunity to be heard and to personally make his/her case to a consular officer.

5. This policy also helps ensure that our visa determinations are sound and as accurate as possible and reflects the unique ability of the consular officer to resolve questions of credibility based on first-hand interview of the applicant. As noted in 9 FAM 41.121 PN1.2(h)(3), in cases where nonimmigrant intent is an issue, consular officers should rely primarily on the interview itself and only minimally on supporting documentation. While review of the OF-156 is an indispensable step in assessing a visa applicant's eligibility, when it comes to judging credibility -- a key issue in cases in which immigrant intent is an issue -- there is simply no substitute for a personal interview. Without an interview, consular officers could end up refusing qualified aliens who may have appeared weak on paper but could have overcome the presumption of immigrant intent through a strong showing of credibility at the time of interview.

6. 22 CFR (9 FAM) 41.102 requires most aliens seeking nonimmigrant visas to apply in person and be interviewed by a consular officer. Although 22 CFR 41.102(a) allows posts to waive personal interviews in certain classes of NIV cases, the principal purpose behind this regulation is to permit waiver of the interview when it is clear that the alien is eligible for the visa and an interview would be an unnecessary inconvenience. As noted in 9 FAM 41.102 PN1, the OF-156 was designed to enable consular officers to determine whether a visa may be issued, repeat, issued without an interview. It was not designed with the intent that it alone would be sufficient to establish that an alien was not eligible for a visa and could therefore be refused without an interview.

7. For the above reasons, posts should not use the authority of 22 CFR 41.102(a) to waive visa interviews in order to refuse a visa applicant under INA 214 (b.) or some other substantive ground. Rather, per 9 FAM 41.102 PN2, if a consular officer is in doubt concerning the visa eligibility of an NIV applicant whose application was submitted by mail or messenger, the officer shall request the alien to appear in person.

8. We recognize that this policy has workload implications and also may engender complaints from some aliens who may travel great distances for interviews, only to be refused. Nonetheless, we believe that fundamental fairness requires us to follow this policy. We are however exploring modification of this policy which, while remaining true to the underlying principle of fairness, may provide for avenues to reduce some workload in this area. Such modifications will require regulatory changes. Posts will be informed as soon as any such amendments are implemented.

PERSONALLY INFORM THE APPLICANT OF THE GROUND OF REFUSAL

9. INA 212(b.) and 22 CFR (9 FAM) 41.121 and 42.81 require consular officers to inform the applicant of the provision of the law upon which a refusal is based. In addition, as noted in refs B and C, it has been the long-standing policy that consular officers generally should also inform the applicant of the factual basis underlying the refusal. However, the underlying factual information should not be divulged to the applicant if the information is classified or SBU, or if it was obtained from another agency and the agency has not authorized release of the information.

10. As with the no-refusal-without-an-interview policy, the policy of informing the applicant of the facts underlying the denial is rooted in notions of fundamental fairness and also serves to ensure that our visa decisions are based on a thorough and accurate understanding of the facts. From a fairness perspective, the applicant, where possible, ought to be told the factual basis for the finding so that he understands the decision and has a reasonable opportunity to rebut it. In addition, if the consular officer's decision is based on an erroneous understanding of the facts, there is a significant likelihood that the factual error will be corrected by the alien when the consular officer informs the applicant of the officer's factual findings, thus increasing the likelihood that a proper decision will be made.

11. 9 FAM 41.121 PN1.2 states that when an alien is found ineligible to receive a visa, the consular officer should inform the alien orally of the basis for the refusal, in addition to the required written notice. Per Ref A, while we are willing to permit consular officers to forego an oral explanation in cases involving non-substantive refusals under 221(g), we do not believe it is appropriate to substitute a written explanation for an in-person oral explanation in cases where the refusal is based on 214(b.) or some other substantive ground. As noted above, such refusals require a personal interview, and the required oral explanation of the basis for the refusal can be made at the end of the personal interview.

12. While providing a thorough oral explanation for the basis of the refusal may take a little more time, in the long run it saves work for everyone. Inadequate (or no) explanations for refusals merely prompt subsequent written and phone inquiries from the applicant, his/her family, members of Congress, and others. Many such inquiries are directed to VO, which must then contact post to find out the basis for the refusal. Regardless of whether post is contacted by VO or by the inquirer directly, post ends up having to provide a report on the basis for the refusal, and in most instances the time spent on such follow-up queries, at post and in the Department, far exceeds the time it would have taken to provide a sufficient explanation at the time of interview.

13. We know that many of you would like to be able to further streamline the NIV application process and rely to a greater extent on mail, drop box, and other procedures that do not require personal appearance. We agree that this is a very worthy goal, and we fully support you in your efforts to streamline the process for visa issuances. Visa refusals, however, require extra protections, and there are limits to how far we can go in that area. While we understand that prohibiting substantive refusals by mail will have workload implications, we want to be as fair as we can to those applicants we refuse, and we do not want to risk consular nonreviewability for the sake of efficiencies in processing. It is in light of these constraints that we are reminding posts to continue following current refusal procedures, as we examine possible regulatory changes that might address some of the workload concerns while still ensuring that refused applicants are given full and fair consideration of their cases. Warm regards.

POWELL

Edited April 16, 2007 by chiquita

[limah 1]

I just want to post the updates I got in my email today. Nice welcome home gift from CRIS!

*** DO NOT RESPOND TO THIS E-MAIL ***

The last processing action taken on your case

Receipt Number: WAC**********

Application Type: I130 , IMMIGRANT PETITION FOR RELATIVE, FIANCE(E), OR

ORPHAN

Current Status: This case has been received from the State Department

with a request we review it.

On April 16, 2007, our CALIFORNIA SERVICE CENTER location received this

case from the State Department with a request that we review it. We

will notify you when we complete our review, or if we need something from

you. If you move while this case is pending, call customer service. You

can also receive automatic e-mail updates as we process your case. Just

follow the link below to register.

If you have questions or concerns about your application or the case

status results listed above, or if you have not received a decision from

USCIS within the current processing time listed*, please contact USCIS

Customer Service at (800) 375-5283.

*Current processing times can be found on the USCIS website at

www.uscis.gov under Case Status & Processing Dates.

*** Please do not respond to this e-mail message.

Sincerely,

The U.S. Citizenship and Immigration Services (USCIS)

This is 5 months after Abdels interview and 4 days after an inquiry made by the congressional reps that have been working with me. I know we still have a long road ahead of us, but like Mama used to say....."An is betta then nan"

So this is definitely a pick me up!

Limah

[sarah and hicham 3]

Limah I'm really happy to see that USCIS has shown a sign of life with your case.

Hang in there!!

[limah 1]

Limah I'm really happy to see that USCIS has shown a sign of life with your case.

Hang in there!!

I am trying! This does give me a reason to smile after crying so much today! And still going and going and going........

Limah

[chiquita 0]

So this is definitely a pick me up!

Limah

i am so happy for you!!!!

next step>>>>>>>>>>

THE NOIR!

are you ready?

let me know if i can help

chi

[limah 1]

So this is definitely a pick me up!

Limah

i am so happy for you!!!!

next step>>>>>>>>>>

THE NOIR!

are you ready?

let me know if i can help

chi

Of course you can help! If you can bless me with your presence in the other group????? I have a few questions already laid out there. Once I have my next move in black and white...... I will update in VJ.

Thanx Chi! I was hoping I'd see u today!

Limah

Edited April 17, 2007 by limah