Denied after 2 years of waiting

[Simeon 25]

She was a low level rank-and-file CCP member, and they already acknowledged that in the K-1 when they asked us to marry and reapply for the CR-1. They even said this would act as a "qualifying relationship". So, why the red tape in the CR-1?

CCP membership automatically means a Security Advisory Opinion will be needed before a visa can be issued.

What they will be looking for is the extent of how involved she is (i.e. joined only because it was a requirement for certain jobs or trying vs. trying to climb the ladder to influential positions).

[Simeon 25]

Sounds like our case, Denied K-1 ,Got Married and embassy put us in A.P.(Been in A.P. now for 10 Months).We had to fill out the questionnaire and send in a Resume about her past CCP membership. Our Lawyer said they send that to Washington for a S.A.O.,But the Embassy has not given us a Decision yet.

every time we email them they tell us to wait....Did they ask you to fill out the Questionnaire too?

Sorry to hear you're in AP for 10 months. That's awful, and I know how that is. They just wanted to see an updated resume and a CCP statement.

some contact info:

http://www.visajourney.com/forums/topic/221091-uscis-contacts/?p=3365596#entry3365596

some of it may be outdated. best reviewed on a pc, not a handphone.

CCP membership needs extra time, so it's important you sit in for the long haul. could be 2 months, could be 10 months, could be a year.

Thanks, I will take a look. I'm not sure where to start calling/e-mailing. Should I just start calling every number of DHS employees in Washington?

You may have seen some of this, but just in case...

http://lawandborder.com/communist-party-members-ineligible-green-card/

http://www.nolo.com/legal-encyclopedia/how-communist-totalitarian-party-membership-affects-eligibility-naturalized-us-citizenshi

http://www.visajourney.com/forums/topic/324976-ever-in-any-way-associated-with-the-communist-party/

http://fianceevisa.chinesefiancee.com/category/i-601-waivers/

Thanks, I will take a look.

This article may help you?

http://lawandborder.com/communist-party-members-ineligible-green-card/

Thanks, I will take a look.

[bpierce 24]

The embassy Provided us with a questionnaire about CCP Membership and also asked for a Resume in Chinese and English and also a list and Date of past travels.

Did your Wife receive this after the Interview?

[JRF 117]

She was a low level rank-and-file CCP member, and they already acknowledged that in the K-1 when they asked us to marry and reapply for the CR-1. They even said this would act as a "qualifying relationship". So, why the red tape in the CR-1?

What they should have explained is that as your spouse she qualifies for the waiver, but that the consulate typically will not grant the waiver but rather send it to "Washington".

I have specific experience with the process, the waiver, etc. (not China, but similar as you can see from my background). You should have already prepared a dossier that explains in detail your wife's rationale for party membership (job related), the fact that she did not hold any sort of office, etc. We also provided documentation that showed the link between party membership and job promotion (with everything translated). We provided this at the time of the interview at the consulate, and it was forwarded to the Visa Services office with our case file. We spent about 4 months in AP. My wife quit the party and the job at the same time - perhaps coincidentally, perhaps not, the approval was granted shortly after we submitted this paperwork to Visa Services. I can't remember if we submitted this paperwork to the Consulate and then to Visa Services, or direct to Visa Services. At that point my wife had been in AP for about 3 months.

We had an attorney with experience in these matters assist - I spent a lot of time on paperwork and at the end of the process I felt like I understood the process as well as the attorney. Nevertheless, his fee was worth what we paid in that we were prepared ahead of time for what to expect, and, with documentation to support the waiver request. That said, end to end it was almost 18 months.

PM me if you want more information. Best of luck.

[Simeon 25]

The embassy Provided us with a questionnaire about CCP Membership and also asked for a Resume in Chinese and English and also a list and Date of past travels.

Did your Wife receive this after the Interview?

Yes, they asked for this as part of the "resume". We did submit this through e-mail, as requested by the Consular officer. The Consulate also confirmed that they received it, but chose to ignore my question as to whether they had shipped it to Washington.

What they should have explained is that as your spouse she qualifies for the waiver, but that the consulate typically will not grant the waiver but rather send it to "Washington".

I have specific experience with the process, the waiver, etc. (not China, but similar as you can see from my background). You should have already prepared a dossier that explains in detail your wife's rationale for party membership (job related), the fact that she did not hold any sort of office, etc. We also provided documentation that showed the link between party membership and job promotion (with everything translated). We provided this at the time of the interview at the consulate, and it was forwarded to the Visa Services office with our case file. We spent about 4 months in AP. My wife quit the party and the job at the same time - perhaps coincidentally, perhaps not, the approval was granted shortly after we submitted this paperwork to Visa Services. I can't remember if we submitted this paperwork to the Consulate and then to Visa Services, or direct to Visa Services. At that point my wife had been in AP for about 3 months.

We had an attorney with experience in these matters assist - I spent a lot of time on paperwork and at the end of the process I felt like I understood the process as well as the attorney. Nevertheless, his fee was worth what we paid in that we were prepared ahead of time for what to expect, and, with documentation to support the waiver request. That said, end to end it was almost 18 months.

PM me if you want more information. Best of luck.

We've already submitted the CCP statement, but did not get into detail about promotion. Promotion was a regular occurrence based on seniority at the State Intellectual Property Office (SIPO), where she worked as a government official (like all her co-workers). She has since quit SIPO and now works at a private, international law firm for over 2 years now. In both K-1 and CR-1, we tried to prove exemption by stating it was necessary for employment/promotion as stated in:

http://lawandborder.com/communist-party-members-ineligible-green-card/

"Today, CCP membership isn’t necessarily ideologically meaningful. Harvard Professor MacFarquhar quipped that the CCP is “a sort of Rotary Club of 70 million people who joined in because it’s good for their careers.” See David L. Shambaugh, China’s Communist Party: Atrophy and Adaptation 25 (2008). The Party is a mutually advantageous social network that distributes favors and privileges (guanxi) to its members. Mere membership in the party also signals elite status to potential government or private employers. It’s “shorthand for being an excellent person.” See Jamil Anderlini, et al., Welcome to the Party!, FT Magazine (Sept. 28, 2012). Membership is also a hedge against political risk, not unlike emigration. So it’s not uncommon for a person to write up a party membership application with one hand and fill in a U.S. immigration application with the other."

She also had co-workers who were not CCP affiliated, but they were also able to get promotions without membership. The CCP standing may have allowed her to get her job initially, but as for promotion, there seems to be little correlation. Besides, the Consulate would've approved the K-1 before if they found her eligible for exception (ii) or (iii). There is no difference this time around, only marriage (iv), which the Consulate has told us was our solution in the K-1 interview. Thanks for the advice, and I'll PM you about the details of your case.

Edited March 5, 2015 by Simeon

[Simeon 25]

Sorry for the spammy posts, but I just wanted to get your expert opinions on this article:

http://srwborderlawyers.com/ina-212d3ai-non-immigrant-waiver-applying-at-us-consulate/

"Specifically, if a visa applicant is inadmissible, the visa application review process will proceed as following:

1. The Consular Officer will first make a determination on whether the applicant qualifies for the particular type of visa being applied for; and
2. If the applicant qualifies for a visa, the applicant will be instructed that he or she will need to obtain a waiver.

Once a visa application with a waiver is submitted to the Consulate, consular officers will review the material and then determine whether to recommend the waiver application to the Admissibility Review Office ("ARO") for approval. On the other hand, should the consular officer choose not to recommend the waiver application, the applicant may request that his or her case be submitted for an advisory opinion. The applicant may also choose to accept the denial and simply apply at a later date."

Since the Consulate did not recommend a waiver application, it looks like I will need to seek an advisory opinion (AO). From what I've been told on VJ, almost all of these AOs result in a granted visa. But as mentioned previously, the wait time may be anywhere from 2 months to a year (!). Is this the right way of thinking?

Also, is there any significance to the officer telling us a 2 month wait time is typical? I feel like the officers telling us this piece of information is significant?

Edited March 5, 2015 by Simeon

[CowBoE 429]

I can't imagine being married and be forced to live apart for 5+ years.

Now that US & China has gotten friendlier with long tourist visas,

(if she's willing), have you looked into whether its possible to have

her come live with you under tourist visa?

If allowed, she won't be able to work in US until she gets GC,

but at least you two can be together.

[Simeon 25]

I can't imagine being married and be forced to live apart for 5+ years.

Now that US & China has gotten friendlier with long tourist visas,

(if she's willing), have you looked into whether its possible to have

her come live with you under tourist visa?

If allowed, she won't be able to work in US until she gets GC,

but at least you two can be together.

Thanks for the idea. I have thought about it, but I haven't tried. Maybe this is a viable option, as you're right, I'm just concerned with her being with me rather than the length of the process. Do you know if applying for a tourist visa will affect my current visa (this was always my worry)? Also, it seems like INA 212 (a)(3)(D) is saying that CCPers not eligible for any type of visa, whether immigrant or non-immigrant.

https://www.law.cornell.edu/uscode/text/8/1182

(D) Immigrant membership in totalitarian party

(i) In general Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible.

(ii) Exception for involuntary membership Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that the membership or affiliation is or was involuntary, or is or was solely when under 16 years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and whether necessary for such purposes.

(iii) Exception for past membership Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that—

(I) the membership or affiliation terminated at least—

(a) 2 years before the date of such application, or

(b) 5 years before the date of such application, in the case of an alien whose membership or affiliation was with the party controlling the government of a foreign state that is a totalitarian dictatorship as of such date, and (II) the alien is not a threat to the security of the United States. (iv) Exception for close family members The Attorney General may, in the Attorney General’s discretion, waive the application of clause (i) in the case of an immigrant who is the parent, spouse, son, daughter, brother, or sister of a citizen of the United States or a spouse, son, or daughter of an alien lawfully admitted for permanent residence for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest if the immigrant is not a threat to the security of the United States.

Edited March 5, 2015 by Simeon

[CowBoE 429]

Thanks for the idea. I have thought about it, but I haven't tried. Maybe this is a viable option, as you're right, I'm just concerned with her being with me rather than the length of the process. Do you know if applying for a tourist visa will affect my current visa (this was always my worry)? Also, it seems like INA 212 (a)(3)(D) is saying that CCPers not eligible for any type of visa, whether immigrant or non-immigrant.

1. I assume she is no longer a member of CCP?

2. If so, how long ago did she leave CCP?

3. I'm also assuming she is not highly political and didn't join the CCP out of passion for communism,

but rather to be employed and to earn a living?

Does any of the following "Exception Conditions..." in INA 212 (a)(3)(D),

apply to her?

1. Under INA 212(a)(3)(D)(ii) – If the membership or affiliation is or was:

• involuntary,
• solely when alien was under 16 years of age,
• by operation of law, or
• for purposes of obtaining employment, food rations, or other essentials of living and whether
• necessary for such purposes.

2. Under INA 212(a)(3)(D)(iii) – If:

(I) the membership or affiliation terminated at least:

• • 2 years before the date of the application, or
  • 5 years before the date of such application, in the case of an alien whose membership or
  • affiliation was with the party controlling the government of a foreign state that is a totalitarian dictatorship as of such date, and
• (II) the alien is not a threat to the security of the U.S.

3. Under INA 212(a)(3)(D)(iv) – If the alien is:

• the parent, spouse, son, daughter, brother, or sister of a U.S. citizen or
• a spouse, son, or daughter of a permanent resident.

The Exception 3 may apply only:

• at INS discretion,
• if the immigrant is not a threat to the security of the U.S.

• AND

• for humanitarian purposes, to assure family unity, or
• when it is otherwise in the public interest

[Simeon 25]

1. I assume she is no longer a member of CCP?

2. If so, how long ago did she leave CCP?

3. I'm also assuming she is not highly political and didn't join the CCP out of passion for communism,

but rather to be employed and to earn a living?

Does any of the following "Exception Conditions..." in INA 212 (a)(3)(D),

apply to her?

1. Under INA 212(a)(3)(D)(ii) – If the membership or affiliation is or was:

• involuntary,
• solely when alien was under 16 years of age,
• by operation of law, or
• for purposes of obtaining employment, food rations, or other essentials of living and whether
• necessary for such purposes.

2. Under INA 212(a)(3)(D)(iii) – If:

• • 2 years before the date of the application, or
  • 5 years before the date of such application, in the case of an alien whose membership or
  • affiliation was with the party controlling the government of a foreign state that is a totalitarian dictatorship as of such date, and
• (II) the alien is not a threat to the security of the U.S.
• (I) the membership or affiliation terminated at least:

3. Under INA 212(a)(3)(D)(iv) – If the alien is:

• the parent, spouse, son, daughter, brother, or sister of a U.S. citizen or
• a spouse, son, or daughter of a permanent resident.

The Exception 3 may apply only:

• at INS discretion,
• if the immigrant is not a threat to the security of the U.S.

• AND

• for humanitarian purposes, to assure family unity, or
• when it is otherwise in the public interest

1. She is no longer a CCP member.

2. She stopped paying dues a little over 3 years ago.

3. She joined as a student and wasn't any more political than kids her age in college. She was never very passionate about communism but rather joined the CCP as an honor society rather than a political party.

We tried to use (ii) and (iii) for the denied K-1. We were not offered a waiver. Instead, the Consulate recommended that we marry and reapply for the CR-1, which is INA 212(a)(3)(D)(iv) on the list you quoted above. This resulted in another denied visa that now requires an advisory opinion. So, you think I should apply for a tourist visa? I would apply, but I would like to get your opinion on the FAM:

http://www.state.gov/documents/organization/87150.pdf

9 FAM 40.301 N3 CRITERIA FOR INA 212(D)(3)(A) WAIVER RECOMMENDATION

The following conditions must be met before an INA 212(d)(3)(A) waiver c

an be recommended or granted:

(1) The applicant is not inadmissible under INA 214(b);

http://immigrationroad.com/visa/214b-immigrant-intent-visa-denial.php

How do I avoid being rejected on ground of 214(b)?

Obviously there is no sure way; otherwise everyone would have been able to secure a nonimmigrant visa. There are a few things, however, that help increase your chances.

• You must be able to show strong ties to your home country, which you have no intention to abandon. This is the most important factor with regard to 214(b). You need to convince the consulate official that your strong ties, whether it is family members, a house or a job, is going to compel you to leave the United States after your short visit or study.

Edited March 6, 2015 by Simeon

[Merrytooth 5,748]

How to prove to the Consular officer that you have no immigrant intent after applying for K1, CR1 immigrant visa (all denied)?

[Simeon 25]

How to prove to the Consular officer that you have no immigrant intent after applying for K1, CR1 immigrant visa (all denied)?

Not to get too OT, but she has little chance of proving she isn't coming to the US to stay permanently. The one thing she may have going for her is that she has been to other countries and returned: Canada, Austria, Philippines, Singapore, and many others. But none of those had a husband who wants her to stay.

[Ryan H 3,812]

At this juncture, the chances of a tourist visa being granted are nil.

[CowBoE 429]

Not to get too OT, but she has little chance of proving she isn't coming to the US to stay permanently. The one thing she may have going for her is that she has been to other countries and returned: Canada, Austria, Philippines, Singapore, and many others. But none of those had a husband who wants her to stay.

Do you guys have a baby yet?

Here is a timeline on my Pakistan co-worker...

1) Pakistan USC (female) petitioned for Pakistan fiancee using a lawyer.

2) I-129F was approved buy local consulate denied K1 visa

on the grounds that he had "lied" in his previous F1 visa filing, which was rejected.

But he doesn't know what the "lie" was...

3) She visits him and gets married in Pakistan and files for spouse visa

using another lawyer.

4) Visa is denied again for the same (unknown previous F1 visa) reason.

5) She visits him periodically, and gets pregnant on one of the trips.

6) She delivers the baby in US, and falls into deep depression and

becomes suicidal (with some attempts).

7) The hope for united marriage is falling apart, but they decided to give it

one more attempt. They hire another lawyer, and this time they provide

evidence of her depression, suicidal situation, and damaging situation to

their daughter who doesn't have father's presence.

8) He is grilled during the interview and he was forced to write an admission of lie and apology letter

for his past "lie"??? that he doesn't know what it was...and finally they approve the visa.

9) He finally makes to US after nearly 8 years of processing and some $20,000 in legal fees.

If she was just a low ranking CCP employee with primary intention of earning a living

and not been front line in campaigning and promoting communism, but rather

just working as an employee...I just don't see what the high risk is for her to be denied.

China is no longer the old hard school communism anymore. Yes, while the communist

is the ruling party, but it doesn't operate like the old days. And their economic system

now is as capitalist as it gets. And in recent years, China and US relationship has

slowly but surely been improving...evidenced by things like longer term tourism visa.

I wonder if your local representative/congressman can help with your case?

Keep us posted on the progress...

[bpierce 24]

Well next week will be 1 Year in A.P. for past CCP Membership. I traveled 2 weeks ago to visit my Wife for our 2 Year Wedding Anniversary and while I was there we had 2 Up-Dates on the CEAC Webb site,2 Days in a row so I thought the Embassy was finally going to do something, but no more up-dates and no email..

I can't understand why it is taking so long for a Name Check to come back from Washington D.C.

We are holding on Strong but are ready to start our Life together..this is just Maddness!!