New Hope after K1 Denial

[Lynn n Sam 57]

That is USCIS talking. They did not look at your petition, or look at the embassy's findings. They simply ignored it and let the petition expire. Yes, you can file another petition "without prejudice." USCIS will approve it, just like they did the first one, and then it will go to the embassy and you will be denied again, for the same reason you were before. USCIS saying "without prejudice" means you won't be docked for having a denied petition in the past, but the reason for having a denied visa still exists. Sorry, but you should really get an attorney to help with your case and explain this all to you.

This is part of an emailed conversation between me and my attorney this past Friday after receiving the USCIS letter:

ME: Does this mean, the case is just closed and there is no misrepresentation and/or a lifetime (or any other form of) ban against Sam and that he is NOT denied for a possible future life in the U.S.?

ATTY: The notice does not find any misrepresentation and you can go forward with a new filing.

ME: ARE we free to file another petition without a PC61 marker being placed in his file that would make us be denied again (provided we prove we are a true couple and he is not immigrating just for a green card or any other factors that would deem him ineligible)?

ATTY: There should be no finding of misrepresentation and if you provide proof of the relationship, you should not have any issues. Yes, you are free to file.

I'm not an attorney nor do I pretend to know this process inside and out. But, why would USCIS tell people that they are free to file again without prejudice knowing - according to you - that the Embassy would just deny it again? What is the sense in that - other than monetary reasons that I can see?

[NigeriaorBust 4,087]

They also didn't lie to immigration. The CO on their case came to the conclusion that they were married after looking at evidence. This happens all of the time in India when COs think that engagement party photos are actually wedding photos.

They were accused of lying, they didn't get a chance to refute the charge and USCIS didn't disagree with the charge so the charge remains on file as valid and unchallanged. Yes it isn't right but it exists. Did you bother to read the article in the link earlier ?

Edited March 18, 2013 by NigeriaorBust

[AKSinghSingh79 143]

Lynn, I've provided the link to my older thread for reference. http://www.visajourney.com/forums/topic/346279-how-can-a-k-1-misrepresentation-denial-be-overturned/

[Harpa Timsah 13,258]

Why would they do that? They are different agencies. Like I said, they just said you can file another petition because they ignored this one. They did not look at anything. The final determination is made at the embassy.

You are thinking that a standard letter that you can reapply means they have examined your case and put forth an official and binding "no misrep" finding. They did not even look at it. They did not issue a NOIR and you did not rebut the findings, did you? Did you read the P6 marker thing, that this practice can make the embassy's finding of fraud officially true and valid? USCIS didn't overturn anything, they just did nothing, and said try again for a chance to make your case.

it is good news in the sense that now you can move forward and try again without waiting on USCIS. But, it is not an official finding of "no misrep." it does not mean he has no ban. Whether or not he has a ban has not yet been decided or even considered. You will still have to overcome the suspicion of misrep and present your case. Your attorney sounds like s/he just wants more money from you.

Edited March 18, 2013 by Harpa Timsah

[AKSinghSingh79 143]

They were accused of lying, they didn't get a chance to refute the charge and USCIS didn't disagree with the charge so the charge remains on file as valid and unchallanged. Yes it isn't right but it exists. Did you bother to read the article in the link earlier ?

The link you provided was broken.

[Harpa Timsah 13,258]

AK, is the OP your friend in that thread?

[Lynn n Sam 57]

They were accused of lying, they didn't get a chance to refute the charge and USCIS didn't disagree with the charge so the charge remains on file as valid and unchallanged. Yes it isn't right but it exists. Did you bother to read the article in the link earlier ?

FYI - your link didn't work. But I have read Marc Ellis' articles previously. Thank you

[bestofboston 36]

The advantage of being married already makes it easier to get here after the NOA2 has been issued and the NVC has processed the paperwork for the interview. The CO does not have as much power on CR1 visa's after the NVC has approved the visa. The only way the CO can deny the visa is prove that whatever was previously provided to the NVC was not truthful. The CO has to be able to prove it based on info provided at the interview. The CO then has to send the reason and proof back to the NVC. The NVC will make the final decision.

I have read so many cases where the CO is in a bad mood and denies the K1 visa based on the CO's feelings on the interview with little or no valid reason.

Edited March 18, 2013 by bestofboston

[Kim n Jai 1]

That's great news, Lynn!!! Congrats. Let's catch up soon.

[Cathi 5,782]

The advantage of being married already makes it easier to get here after the NOA2 has been issued and the NVC has processed the paperwork for the interview. The CO does not have as much power on CR1 visa's after the NVC has approved the visa. The only way the CO can deny the visa is prove that whatever was previously provided to the NVC was not truthful. The CO has to be able to prove it based on info provided at the interview. The CO then has to send the reason and proof back to the NVC. The NVC will make the final decision.

I have read so many cases where the CO is in a bad mood and denies the K1 visa based on the CO's feelings on the interview with little or no valid reason.

the CO has just as much power with a CR-1,there are many people on these boards with denied CR-1 visas. I highly doubt that a CO can deny a case merely because they are in a " bad mood", they have procedures to follow and supervisors to answer to. I am sure people who say they were denied because the CO was having a bad day are just looking for an excuse, instead of looking at the facts(not the OP), like not enough evidence. I this case her husband was interviewed by several people. over 8 hours time. What it all comes down to is the CO has the final say in issuing a visa, getting married will not overcome anything, the original issue needs to be addressed.

Edited March 18, 2013 by mimolicious

[Cathi 5,782]

OP did the CO tell you why he though you were married? Did you have a lavish engagement ceremony?

[Phladetroit 0]

Did you get a reply like this... ??

"we mailed you a notice terminating your status. If you have not received the notice within 30 days of the date above, please call customer service"??

After a year long wait , we got this response..

Our K1 was denied last year because she had a previous petitioner "22 months before" and USCIS said old petition was still active. Old petition was abandoned.

Does this mean we can try K1 again!!!???

I would like to do a K3.. just CANT be away for 30 days because of job and other responsibilities.

[Ebunoluwa 6,136]

This is part of an emailed conversation between me and my attorney this past Friday after receiving the USCIS letter:

ME: Does this mean, the case is just closed and there is no misrepresentation and/or a lifetime (or any other form of) ban against Sam and that he is NOT denied for a possible future life in the U.S.?

ATTY: The notice does not find any misrepresentation and you can go forward with a new filing.

ME: ARE we free to file another petition without a PC61 marker being placed in his file that would make us be denied again (provided we prove we are a true couple and he is not immigrating just for a green card or any other factors that would deem him ineligible)?

ATTY: There should be no finding of misrepresentation and if you provide proof of the relationship, you should not have any issues. Yes, you are free to file.

I'm not an attorney nor do I pretend to know this process inside and out. But, why would USCIS tell people that they are free to file again without prejudice knowing - according to you - that the Embassy would just deny it again? What is the sense in that - other than monetary reasons that I can see?

I suggest a phone consultation with Marc Ellis. I am sure he will have a correct answer for your circumstance.

A second opinion is always best, especially form Marc.He will tell you how to proceed.

[Inky 1,111]

Did you get a reply like this... ??

"we mailed you a notice terminating your status. If you have not received the notice within 30 days of the date above, please call customer service"??

After a year long wait , we got this response..

Our K1 was denied last year because she had a previous petitioner "22 months before" and USCIS said old petition was still active. Old petition was abandoned.

Does this mean we can try K1 again!!!???

I would like to do a K3.. just CANT be away for 30 days because of job and other responsibilities.

K-3 is no longer issued. You would file for a CR-1 after marriage.

You need to find out how to close the previous petition if they claim it is still open. Filing again with the other active petition still active will likely cause a denial again.

[sherryandyashpal 7]

Wish you both the best going the cr-1 route!

Sherry