K1 Case Delayed, Returned to USCIS -- How Is This Legal?

[MBMRes 0]

Our K1 application was approved by both USCIS and NVC. Our information was sent to the US Embassy in Bangkok, and they sent our packet back to USCIS.

Reason: Clarification of IMBRA criminal conviction.

USCIS told me that they will not even look at these returned cases for a minimum of 6 months, and this would violate their own expiration period for the K1 application.

My question: How is this legal?

We paid our fees and submitted all of the information that was asked of us (we sent in official court documents and even written letter explaining the IMBRA conviction -- this was the instruction in the i129F). At the very least, they should extend the expiration period for the amount of time these government bodies needs to communicate with one another.

Our case is being "swept under the rug" and we will receive the same outcome as a denial if this continues. The IMBRA conviction did not involve a child and is not connected to the Adam Walsh Act in any way. I have been told that the IMBRA conviction is not grounds for refusal. But if this continues, it will be an indirect refusal.

[Pitaya 2,577]

~Moved from K1 Process to K1 Case Filing and Progress Forum~

~case filing clarification inquiry~

Edited September 19, 2015 by Pitaya

[captmaximus 11]

What a mess! You may as well get married offshore and start from scratch with a CR-1 spouse visa instead. Just a thought.

[Aussie25 0]

That is not helpful advice. the CR1 process is much longer and there is no reason to believe that the Embassy will not do the same thing again.The real issue here is how they can delay the process beyond their own expiration date.

Sounds like a way of getting an applicant to file again and get extra fees.

I agree that is it unfair for them to request added information for a factor (conviction) that should not prevent your fiance from getting her visa anyway.

[Ebunoluwa 6,136]

K1's aren't reviewed, they are purposely expired. Long legal story why and I am not getting into it here.

You can re file a K1 or do a CR1 the next time as spousal visa's get a chance for a rebuttal if they are returned and don't expire.

Think what you may have omitted and make sure every possible document is submitted.

You could have contacted them through your senator immediately after the interview for a second interview, to submit more evidence

but that ship seems to have sailed if they have already returned the petition.

[MBMRes 0]

K1's aren't reviewed, they are purposely expired. Long legal story why and I am not getting into it here.

You can re file a K1 or do a CR1 the next time as spousal visa's get a chance for a rebuttal if they are returned and don't expire.

Think what you may have omitted and make sure every possible document is submitted.

You could have contacted them through your senator immediately after the interview for a second interview, to submit more evidence

but that ship seems to have sailed if they have already returned the petition.

There was no interview. My fiance emailed the Embassy in Bangkok because she wanted to make sure they had her current address and she was told that the Embassy cannot process the case because it was sent back to USCIS.

We were never given an opportunity to submit a Request for Evidence. We would have sent them anything they asked for, but nobody ever contacted us in any way (other than the NOA mail to tell us that we were approved for USCIS and NVC).

As far as things we didn't include, I don't see it at all. The Embassy asked for a clarification of the IMBRA conviction that i received 11 years ago. (Non-violent crime and we were told by an attorney that this should not be an obstacle for her in getting her visa.) In the i129F, the instructions ask us to include a "separate sheet of paper to provide information about the crime involved, the date of conviction, and the sentence." I include a full page explanation of the event and an official document from the court showing the disposition date. This is literally the only court document that the court has available.

I don't see what additional "clarification" could possibly be given. We followed the instructions, and we were never given the opportunity to contribute anything else if needed.

[Ebunoluwa 6,136]

There was no interview. My fiance emailed the Embassy in Bangkok because she wanted to make sure they had her current address and she was told that the Embassy cannot process the case because it was sent back to USCIS.

We were never given an opportunity to submit a Request for Evidence. We would have sent them anything they asked for, but nobody ever contacted us in any way (other than the NOA mail to tell us that we were approved for USCIS and NVC).

As far as things we didn't include, I don't see it at all. The Embassy asked for a clarification of the IMBRA conviction that i received 11 years ago. (Non-violent crime and we were told by an attorney that this should not be an obstacle for her in getting her visa.) In the i129F, the instructions ask us to include a "separate sheet of paper to provide information about the crime involved, the date of conviction, and the sentence." I include a full page explanation of the event and an official document from the court showing the disposition date. This is literally the only court document that the court has available.

I don't see what additional "clarification" could possibly be given. We followed the instructions, and we were never given the opportunity to contribute anything else if needed.

Since it was returned without an interview they 'might' review it but I doubt it. You should contact your senator / congressman as soon as possible

and stress to him that you did comply with all requirements and weren't granted an interview and since USCIS does not review returned K1's

you are requesting an interview either at USCIS field office and / or the consulate to have a chance to submit your evidence.

Post your outcome when you have heard back. Best wishes.

http://www.uscis.gov/sites/default/files/USCIS/Resources/Resources%20for%20Congress/Congressional%20Reports/I-129F%20Petition%20for%20Alien%20Fiance%28e%29.pdf

Page 11 about expired returned petitions won't be extended.

Edited September 20, 2015 by Ebunoluwa

[MBMRes 0]

Since it was returned without an interview they 'might' review it but I doubt it. You should contact your senator / congressman as soon as possible

and stress to him that you did comply with all requirements and weren't granted an interview and since USCIS does not review returned K1's

you are requesting an interview either at USCIS field office and / or the consulate to have a chance to submit your evidence.

Post your outcome when you have heard back. Best wishes.

Honestly, thank you. Really appreciate the opinions.

I am generally not a conspiracy person, but the fact that they will review a new application in 2 weeks (and completely ignore a simple pending application) sounds to me like USCIS is only interested in collecting application fees.

I honestly cannot come up with any other logical conclusion.

[Ebunoluwa 6,136]

Honestly, thank you. Really appreciate the opinions.

I am generally not a conspiracy person, but the fact that they will review a new application in 2 weeks (and completely ignore a simple pending application) sounds to me like USCIS is only interested in collecting application fees.

I honestly cannot come up with any other logical conclusion.

It goes deeper than that. It has to do with a lawsuit that was filed. Research attorney Marc Ellis's articles on that, some posts are here

on VJ from years ago.

In a nut shell, returned I-129F petitions used to be denied which placed a hard Pc6 fraud marker on the case, even though the petitioner and

beneficiary never committed fraud but the consulate speculated without factual evidence that there was and it stuck.

The outcome of the suit was that now they are purposely expired instead and the petitioner can file again without prejudice and no longer

has to overcome the pc6 marker. Which is good but not good enough because they need to take it a step further to start reviewing

returned K1's again but are only doing that for spousal visas.

Attorneys file suits here and there to overcome this inefficiency but so far without success.

Meanwhile, yes, they are raking in more fees.

It's too bad that our politicians (both parties) are only focused on illegal immigration talking points to score votes but are totally disinterested

and clueless about the hell some of us go through in the legal immigration system.

[Hypnos 6,576]

This was recently litigated by Brent Renison and others in Tran vs. Napolitano, specifically regarding P6C markers and K-1s, and more broadly with the fact that embassies are not meant to re-adjudicate petitions; the sole authority to do that vests with USCIS.

The lawsuit was mostly dismissed on appeal, and unfortunately not much good came out of it.

Edited September 20, 2015 by Hypnos

[Ebunoluwa 6,136]

This was recently litigated by Brent Renison and others in Tran vs. Napolitano, specifically regarding P6C markers and K-1s, and more broadly with the fact that embassies are not meant to re-adjudicate petitions; the sole authority to do that vests with USCIS.

The lawsuit was mostly dismissed on appeal, and unfortunately not much good came out of it.

Yes, I spoke with Brent several times and was going join the class action suit but decided not to for other reasons.

[Hypnos 6,576]

I've also had personal dealings with Brent; he helped me at no cost when USCIS were stalling and mishandling my AoS case as an immediate relative through being a widower. He is a stand-up guy and I was disappointed to see the final disposition of his newest case.

Edited September 20, 2015 by Hypnos

[Ebunoluwa 6,136]

I've also had personal dealings with Brent; he helped me at no cost when USCIS were stalling and mishandling my AoS case as an immediate relative through being a widower. He is a stand-up guy and I was disappointed to see the final disposition of his newest case.

I agree, great guy. I was disappointed too. I believe he will try again some day.

[Adil & Jeanne 296]

First: Immigration does not guarantee a visa will be granted / they can deny for a number of reasons / nothing illegal about what they did

It is ujpsetting i know but happens to a lot of applications

Second: There is a crimianl conviction here / even marriage and CR 1 may not give you a visa

The goal of IMBRA (part of VAWA or the Violence Against Women Act) was to protect the foreign fiancée or spouse from a petitioner with a serious criminal record and to inform the fiancée or spouse of the petitioner’s history. IMBRA also tries to prevent serial fiancée visa applicants and foreign mail order brides.

It says SERIOUS CRIMINAL CONVICTION by definition

Your chances of a visa are SLIM TO WILL NOT HAPPEN

[lala64 93]

Very Sorry that this happened to you.. I believe the only thing for you to do at this point is to have your congressmans office and senator inquire about the exact nature of the refusal.. this way you can be prepared for your next filing to see what they felt was missing so that you can be sure to add it next time. Unfortunately if it has gone back to USCIS your petition will sit and expire. It is too bad you didn't catch wind that they were going to send it back before they did.. you may have been able to stop the impending denial..