Advice please about K1 denial for multiple petitions

[NigeriaorBust 4,087]

The red flag raised by being the beneficiary of multiple K1's is the desire to immigrate may be the reason not love. You need to address this firmly. There are people from Nigeria and I assume other countries that will actually hold relationships with many to see who they can convince to file for them first, they then cool it off with the rest until they know what happens with the petition , if it doesn't work they drop sucker number one and move on to the next best. I am not saying you guys are like this but that this is the suspicion of the consulate. Whatever evidence your fiancé has that the old relationship was real when they filed and died during the process should be gathered for a response to the denial or to submit if you have to file some sort of petition in the future

[Juliet and Steve 93]

Not sure why we keep blaming this Guy and now we want to sue him.

The fiancee should also have this information.

My wife has a copy of everything sent or received from uscis/dos.

The entity that needs to get their act together is the embassy and stop bullying the op.

Should'a, could'a, would'a.... how often we hear that...

Your wife may be very organized and have a copy of everything--admirable! But so what? The OP needs the numbers. Another party has them and will not share them. So now we blame the OP for not keeping all records?

In this case it's simply "meanness" that the fellow won't give her the number--absolutely nothing else.

If people don't think that is, at least on some level, "infliction of emotion distress," then I would wonder about them because it is so easy to give such information, and so hurtful not to.

And my post was not intended as a "now we want to sue the guy," it was simply a long-shot option.

Also I'm confused about "bullying the op." It is not the OP who is withholding information. Am I missing something? Nobody is bullying the OP.

Edited June 2, 2013 by Juliet and Steve

[del-2-5-2014 1,339]

Should'a, could'a, would'a.... how often we hear that...

Your wife may be very organized and have a copy of everything--admirable! But so what? The OP needs the numbers. Another party has them and will not share them. So now we blame the OP for not keeping all records?

In this case it's simply "meanness" that the fellow won't give her the number--absolutely nothing else.

If people don't think that is, at least on some level, "infliction of emotion distress," then I would wonder about them because it is so easy to give such information, and so hurtful not to.

And my post was not intended as a "now we want to sue the guy," it was simply a long-shot option.

Also I'm confused about "bullying the op." It is not the OP who is withholding information. Am I missing something? Nobody is bullying the OP.

I meant to type bullying the Ex.

Both parties had access to the same information at some point, suing one party for that information just seems a waste of time. How sure are you that Ex has the documents? You are assuming and calling the Ex all sorts of names when he's not here to defend himself.

You don't have to admire my Wife as it wasn't meant that way, I used that as an example that I gave her all the information that I have during this process and a suggestion for her to sue me in the future for those same documents would be infantile, IMHO.

[Ratty and C 13]

Thanks for the replies guys. The Ex isn't being bullied, we contacted him very politely via email to ask for the information and only when he didn't reply did I phone him, 'cos you never know if the email just went to spam or maybe he no longer uses the email address. He had clearly read the email and made a decision to just screw with us by his response to my phone call. I was extremely polite and civil. He isn't part of this thread so he isn't being bullied at all, this is just people suggesting ideas.

He would certainly have access to the case number etc 'cos he used an attorney to file the case, he could ask them. We don't know which attorney, and my fiancée isn't the client, he was, so i'd doubt they would supply the information to us.

About a lawsuit, I'll just talk to an immigration attorney first. We don't want to antagonize the ex 'cos it could be that the USCIS contacts him when we try to withdraw the case and I don't think bad blood there would help.

Yes, my fiancée had those documents at some point in the past of course but she does not now. There is nothing I can do about that, so there's really no point in saying she should have them - we have to work with reality and concentrate on what we can actually do, not what the coulda shoulda woulda's.

NigeriaorBust, yes I understand about the red flag, but at the consulate he did say we seemed like a nice couple - not sure if he used the actual words bona-fide, but the issue was the old petition and not our relationship. Their rules state that a beneficiary with multiple petitions on file must have the case returned to USCIS, and it's USCIS's job to decide whether to remove the old case or to investigate for fraud etc - it doesn't mean that the consulate suspects fraud, they are just following their rules. So the problem is that the old case should have been withdrawn, and that the USCIS likely won't bother to remove his old case even now 'cos most likely they'll just say we're denied 'cos our case expired.

I guess the most likely thing is that we'll draft a letter to USCIS, the Embassy and everywhere else relevant asking for the case to be withdrawn, and give them whatever information we can.

If anyone knows how the beneficiary can get the case # please let me know. I'll ask the immigration attorney anyhow, maybe she can just write to the embassy to find out.

Thanks again for the replies.

[Ebunoluwa 6,136]

Thanks for the replies guys. The Ex isn't being bullied, we contacted him very politely via email to ask for the information and only when he didn't reply did I phone him, 'cos you never know if the email just went to spam or maybe he no longer uses the email address. He had clearly read the email and made a decision to just screw with us by his response to my phone call. I was extremely polite and civil. He isn't part of this thread so he isn't being bullied at all, this is just people suggesting ideas.

He would certainly have access to the case number etc 'cos he used an attorney to file the case, he could ask them. We don't know which attorney, and my fiancée isn't the client, he was, so i'd doubt they would supply the information to us.

About a lawsuit, I'll just talk to an immigration attorney first. We don't want to antagonize the ex 'cos it could be that the USCIS contacts him when we try to withdraw the case and I don't think bad blood there would help.

Yes, my fiancée had those documents at some point in the past of course but she does not now. There is nothing I can do about that, so there's really no point in saying she should have them - we have to work with reality and concentrate on what we can actually do, not what the coulda shoulda woulda's.

NigeriaorBust, yes I understand about the red flag, but at the consulate he did say we seemed like a nice couple - not sure if he used the actual words bona-fide, but the issue was the old petition and not our relationship. Their rules state that a beneficiary with multiple petitions on file must have the case returned to USCIS, and it's USCIS's job to decide whether to remove the old case or to investigate for fraud etc - it doesn't mean that the consulate suspects fraud, they are just following their rules. So the problem is that the old case should have been withdrawn, and that the USCIS likely won't bother to remove his old case even now 'cos most likely they'll just say we're denied 'cos our case expired.

I guess the most likely thing is that we'll draft a letter to USCIS, the Embassy and everywhere else relevant asking for the case to be withdrawn, and give them whatever information we can.

If anyone knows how the beneficiary can get the case # please let me know. I'll ask the immigration attorney anyhow, maybe she can just write to the embassy to find out.

Thanks again for the replies.

Where does it say that "their rules state that a beneficiary with multiple petitions on file must have the case returned to USCIS....."

"...they are just following rules. So the problem is that the old case should have been withdrawn."

I disagree that ' those are the rules' because if that were the case everyone else would not be approved either, not at the USCIS level for the

NOA2 and not at the embassy level but see plenty of beneficiaries with a prior petiton receiving their visas.

It is up to the CCO's 'discretion' to return it or approve it regardless of a prior petition many years ago.

Old petitions EXPIRE therefore I stand on my opinion that the CO is messing up by returning the case and may be using this as an excuse

even if he told you that you seem like a nice couple.

Until I see a memo with a link pointing to the idea that the CO must return a case with a prior beneficiary petition due to the "regulations" I believe otherwise. CO's talk a lot when the day is long.

Don't assume they never make a mistake, mislead, speculate or sometimes are just plain ignorant of the regulations in regards to what USCIS is supposed to do !

Fact is they have been given too much "discretion" in making a decision and that boils down to a personal decision without being based on factual evidence and without fair checks and balances i.e. they do whatever they want to do. It happens.

I am sharing an email I received when inquiring to the Director of CSC about my own returned case :

He (or whoever the person was who answered) was obviously also wrong in saying USCIS does not reaffirm returned petitons as we all know

VSC does sometimes reaffirm K1's and we know that CSC never does (due to a former law suit as I understand it....long story).

See email here :

USCIS confirms that your I-129F petition, which was approved on XXXXXX, was returned to the California Service Center (CSC) by the Department of State(DOS), on XXXXXX

The validity period for an approved I-129F petition is four months from the date of approval. When a consular post returns a fiancé(e) petition to USCIS, they have indicated that they are unwilling to issue a K-1 visa. Therefore, USCIS will not reaffirm and return an I-129F petition, unless an adjudicative oversight has occurred. The submission of additional evidence will not lead to a new decision by DOS, and USCIS has no authority to challenge their decision. The 4 month validity period for the visa issuance is no longer current, and the case will remain expired. This process is without prejudice to the filing of a new petition. Thank you for your inquiry to Service Center Operations.

There you have it. Notice that they say " unless an adjudicative oversight has occurred..."

I think that happened in my own case (not related to what your issue is) and I believe the CO and/or USCIS allowed an adjudicative oversight to occur and if I were you I would fight it from that angle though I was unable to do so myself.

[Ratty and C 13]

^{http://www.state.gov/documents/organization/87391.pdf}

^{Section 9 FAM 41.81 N6.8}

^{"In instances where more than one U.S. citizen fiancé(e) has filed visa petitions on
behalf of the same alien and more than one K-1 visa petition has been approved
for the same beneficiary, the consular officer must suspend action and return all
petitions with a covering memorandum to USCIS district director who approved
the last petition so that the petition approvals may be reviewed."}

[Ebunoluwa 6,136]

^{http://www.state.gov/documents/organization/87391.pdf}

^{Section 9 FAM 41.81 N6.8}

^{"In instances where more than one U.S. citizen fiancé(e) has filed visa petitions on}

behalf of the same alien and more than one K-1 visa petition has been approved

for the same beneficiary, the consular officer must suspend action and return all

petitions with a covering memorandum to USCIS district director who approved

the last petition so that the petition approvals may be reviewed."

Thank you for the link. So according to that memo if you would refile a K1 the same thing would happen, it would be returned again and again even though USCIS sends letters of expiration stating : "This process is without prejudice to the filing of a new petition." Meaning you are free to refile.

Nothing "without" prejudice about that ! So someone's only option (for someone who'se beneficiary has a prior petition) to petition his fiance again would be with a I-130 as those (if returned) get reviewed and most often reaffirmed.

Their lack of straightforward transparency makes me crazy, no clarification on their regulations that refiling another K1 would end up in the same one way street.

I still don't get why we read here on VJ about other beneficiaries being approved who had prior petitions and who did not have their cases returned. Perhaps their CO was not aware of the memo. *Scratches head and rolls eyes.

Did you previously say the a beneficiary has a limit of 2 prior (K1?) filings ? I can't find that post, if you did, do you also have a link for that ?

Just curious as I have never seen that before.

[Ratty and C 13]

Thanks for the replies Ebunoluwa, the more information and questions people ask the more future information future people will have to avoid the same problems.

I just got off the phone with the embassy, they said they are processing the visa for return to the USCIS, and that's what they told my congressman's aide last week. She said they have no discretion about this I asked to speak to a senior consular officer and the officer said they would just tell me the same. So I said i'd like to speak to one anyhow 'cos I really have to do pursue every avenue I can to resolve this, so she said to call back about 2:30pm their time 'cos all the senior officers are currently in interviews. She also said I just needed to talk to USCIS about this 'cos it's their job to resolve the issue, not the embassy's job and they aren't allowed to determine the status of the multiple petitions.

So, i'll phone back later. Maybe they'll at least give me or my fiancée some information about the other petition? Well, I doubt it but i'll ask. The FOIA may reveal that anyhow when we ask for the consular notes on our own petition.

Yeah, you're totally right without the 'about prejudice' part, if you re-file you basically get a denial if you're with CSC unless the previous petition is withdrawn.

I previously said the petitioner has a limit of 2 petitions within 2 years I think - maybe that's what you saw? Anyhow, there's some information here

http://www.ilw.com/articles/2007,0206-ellis.shtm

The lack of transparency drives me crazy too. Anyhow, consulting an attorney will hopefully give me more insight into what's likely to happen, and what I can do. I do think though we'll end up going the CR1 route.

Thanks again Ebunoluwa.

[Ebunoluwa 6,136]

Thanks for the detailed response Ebunoluwa.

In the bolded part of #2 i just meant that with my understanding of how the immigration process worked when i first filed the petition there were just many factors that led me to believe his application would not interfere with ours. Him being married via a different K1 to a different beneficiary just lulled me in to a false sense of security i guess, thinking that if there's a still a petition in the system from him for my fiancee then it must have in some way have been resolved for him to be able to file a subsequent K1 and get it approved - so why would his K1 for my fiancee mess up our application but not his? I hope that explanation makes sense, i know it's a bit long winded. I guess now i realize that there's different rules for the petitioner and the beneficiary, and the petitioner has a 2 year limit for multiple petitions, whereas for the beneficiary it's 2 applications ever, so maybe that discerepancy is what allowed this to happen. The ex-fiancee's petition for his now wife would have been in 2008 or 2009, so 2-3 years after his petition for my fiancee.

I thought USCIS does resolve returned petitions - but just not USCIS CSC. It seems like Vermont does do it - but i haven't read up much about Vermont because that doesn't affect our case.

Yeah, i feel like at the moment there's not much else i can do. I'll write about our case in more detail for a lawyer/attorney to suggest if there's more i can do, and in the meantime keep in touch with the congressman's aides. They at least have been responsive and are trying to figure this out before the case leaves the embassy.

Thanks for the opinion of FOIA, do you think it's best to file that ASAP or to wait for the case to return to USCIS? I'm not sure how they would even fulfill the request if my case notes were in the diplomatic pouch.

So, once the case leaves the embassy and is on it's way back to USCIS you agree it's very unlikely to get returned back to the embassy, so the marriage to me sounds like the best option 'cos then at least next application we will be given chance to address any issues that arise.

Incidentally, do you think the ex-fiancee's K1 and our current K1 have any impact on filing a CR1 - i mean, do you think we need to request an imbra waiver or anything like that?

Thanks again for your comments

I found it and bolded it, but I think I understand in what context you meant this, 2 petitions (beneficiary by different USC ) "ever" meaning more than one will get you returned but it does not mean that someone with more than 2 are excluded from being approved per regulations. ( Of course, more scrutinized blah blah but I am talking about regulations in the books.)

I do understand the petitioners multiple filings/time frame per IMBRA regulation.

Yes, I have read all of Marc's articles and posts here.

It will be interesting to me how your case unfolds.

This has been hell for us.

We were returned after 16 months in AP and of course not reaffirmed by CSC. We have to refile a K1. I prefer a CR1 ....but....

I flew over to marry but we weren't able to due to http://www.visajourney.com/forums/topic/418887-north-cyprus-marriage-application-nightmare/

[Ratty and C 13]

omg Ebunoluwa, sorry for your predicament, I hope it works out okay in the end. I can't even imagine how frustrated you must be. Doesn't it feel like the government is supposed to be there to help and protect us, but the biggest threat in our lives is them telling us who we can't marry and spend our lives with. Hard to imagine a bigger intrusion than that really.

Yup, what I mean by the limit of 2 petitions ever for the beneficiary was that it's 2 before a red flag is kicked up, not for a ban or something - same for the petitioner, it's just something that has to be addressed, not some sort of ban. Sorry I couldn't remember the exact post you meant, so many posts now.

Good luck with your petition and marriage - I guess we're just in it for the long haul, but at least once we're together we will appreciate every minute of it. I don't think most people realize how lucky they are.

Oh, and thank goodness for Skype - it's not 100% reliable, but it's pretty amazing for free!

[Ratty and C 13]

Just to wrap up this thread and update everyone, tonight i called the embassy and they are ready to issue our visa, we just need to wait for the passport now. Contacting my congressman really seems like it worked! Good job Duncan Hunter, Holly, Dixie and team.

Good luck to all and thank you so much for all the advice, concern and good wishes!

[fantonledzepp 159]

That is great news. Congratulations!

[John&Juvy 36]

Finally... Congratulations !

[Ebunoluwa 6,136]

Just to wrap up this thread and update everyone, tonight i called the embassy and they are ready to issue our visa, we just need to wait for the passport now. Contacting my congressman really seems like it worked! Good job Duncan Hunter, Holly, Dixie and team.

Good luck to all and thank you so much for all the advice, concern and good wishes!

So it was not even returned ? Or returned and processed so fast ?

Great news, Congratulations !

[Ratty and C 13]

It was not even returned - we were lucky the congressman's aides managed to get on the case quickly and persuade the embassy to reconsider based on a couple of things i guess they hadn't before, like the age of the old case and the fact that my fiancee had not attended the previous interview - it seems they didn't take those things into account before, they just saw a previous case number and said denied. But....that's also what i asked them to consider when i phoned and was told there's no discretion on their part, they just have to return it. So, either congressmen carry weight when requesting the re-review or maybe something else in the background changed like the ex fiancee's case got removed from the system which then allowed the embassy to re-review within their own rules - either way it's the congressman that gave us the help we needed, and thank goodness they acted before it got to USCIS.

So, now we're just waiting to receive the passport back with the visa - hopefully by the end of next week, and we plan for her to fly here late this month! Wow it still hasn't sunk in after 2 weeks of trying to figure out how we'll manage for the next year to 18 months, we are both just grinning from ear to ear!

I really think most couples don't appreciate every moment they have together and those of us in an LDR can always remember how lucky we are to be together, it seems like such a small thing until you've been seperated like this, so i will never take it for granted.

Oh, and Celesty, if you're reading this - I love you with all my heart, see you soon honey! Mwahh!