New Article on Consular Denials

[~kiyah~ 14]

Posing this question:

My K1 visa was returned in January of this year. The CSC received the returned petition in April, along with a request from the consulate to review it, the CSC said they would notify me when the review is completed or they take further action. Nearly 8 weeks passed then I received notice that the petition would not be revalidated due to it being expired. However, I may refile again anytime.

I NEVER received an NOIR/NOID, I have been waiting for it to come...all evidence has been waiting to be submitted upon the receipt of the NOIR. I have requested this from the CSC...first in February just after this happened, again when I received the receipt notice of the return, AND AGAIN after getting notice that my K1 would not be revalidated for review.

We have plans to marry this November and file for the K3 (I129F and I130)...by reading this article, it looks like we are totally screwed! I do not know what the consular office objections/reason were for returning this petition, I was only given a blanket response: validity of relationship. How can I rebut something I do not know...AND am not being given the opportunity to rebut????

My thoughts are this:

1. Hire a good immigration attorney to file this K3.
   
2. Identify ANY red flags which could be the reason(s) for the K1 petition return up front with the K3 petition filing.
   
3. Provide ALL documentation showing I have contacted every single organization possible to be given the opportunity to rebut CO findings and have NOT been provided this privelage. (DOS/DHS/Congress)
   
4. Pray to God that we are not placed in this misrepresentation trap.
   

This all has me extremely concerned and am not sure at all what to think about what I have read here. It seems everywhere I turn, the system is stacked against us. This makes no sense to me what is happening to my case, and others like mine going through the CSC.

What can one do if they are not given the opportunity to rebut the K1 return or even know what the finding were? We want and need to be together, marrying each other after this is only a natural progression. Is there any hope? Are we just going to be fighting a losing battle or what?

~Kiyah~

[tigretigre 0]

Thank you for the article, Ellis.

The discussion of the misrepresentation trap and the expired petition conundrum provides a good answer to those people who ask why the guides on this forum suggest that the beneficiary have at the interview a letter from the petitioner, dated post-USCIS approval, reaffirming intent and legal ability to marry the beneficiary. "I already included one with the I-129F." Maybe that was good enough for the DHS to approve you, but not for the consular officer, who is apparently convinced that you've changed your mind in the intervening period (.

I really don't know how much help such a letter would be if you've a CO who is hell-bent on denying your visa and entering a misrepresentation finding, but surely it's better then "uhhh...I got nothing." If you're lucky, maybe the letter might at least be part of the file sent back to USCIS, so that when you get that NOID/NOIR, you can respond with "hey, check out my letter dated such-and-such, in which I reaffirm my ability and intent to marry the beneficiary." Just a thought. I have no idea if ultimately it would do any good--I have the feeling that if they just deep down want to deny your visa, they'll find a way to do it.

*shudders* Scary

[Yodrak 7]

tigre,

9 FAM 41.81 Notes, N6.2

Yodrak

Thank you for the article, Ellis.

The discussion of the misrepresentation trap and the expired petition conundrum provides a good answer to those people who ask why the guides on this forum suggest that the beneficiary have at the interview a letter from the petitioner, dated post-USCIS approval, reaffirming intent and legal ability to marry the beneficiary. "I already included one with the I-129F." Maybe that was good enough for the DHS to approve you, but not for the consular officer, who is apparently convinced that you've changed your mind in the intervening period (.

....

Edited July 18, 2006 by Yodrak

[tigretigre 0]

Yodrak: I know that part of the FAM. My point is, I've heard the letter mentioned in our forum guides described as "optional," "not necessary," and "a formality." It is, in the sense that it's not required for the interview, but 9 FAM 41.81 N6.2 suggests it might be a smart move if you think your approved petition is in danger of lapsing before the interview. I'd think that if it could be made part of the record, a CO who returned the petition with a memo saying "I didn't revalidate this because I feel that a reasonable person would conclude that they do not intend/are no longer free to marry, and I'm entering a finding of misrepresentation as a result" would seem not like a not-so-reasonable person.

Unless you're pointing me to that part of the FAM as a polite way of saying "everybody already knows that, duh," in which case, I apologize humbly

[Yodrak 7]

tigre,

I'm pointing out that there's a good and valid reason why the VJ Guide recommends that a K1 visa applicant have such a letter from their petitioner at their interview. It's not necessarily an arbitrary and capricious act on the part of a consular officer.

As for VJ posters who suggest that such a letter is not necessary or is a formality, there are many VJ posters who have insufficient understanding of what they're dealing with and as a result often mis-construe what they see and experience. Yes the letter is optional - on the part of the consular officer, not on the part of the visa applicant or their petitioner - and there is a DoS guideline telling consular officers when they should exercise the option.

Yodrak

Yodrak: I know that part of the FAM. My point is, I've heard the letter mentioned in our forum guides described as "optional," "not necessary," and "a formality." It is, in the sense that it's not required for the interview, but 9 FAM 41.81 N6.2 suggests it might be a smart move if you think your approved petition is in danger of lapsing before the interview. I'd think that if it could be made part of the record, a CO who returned the petition with a memo saying "I didn't revalidate this because I feel that a reasonable person would conclude that they do not intend/are no longer free to marry, and I'm entering a finding of misrepresentation as a result" would seem not like a not-so-reasonable person.

Unless you're pointing me to that part of the FAM as a polite way of saying "everybody already knows that, duh," in which case, I apologize humbly

Edited July 18, 2006 by Yodrak

[tigretigre 0]

Yodrak: so you're saying that what I'm saying is what you've been saying, which is what VJ has been saying, and that you're not just saying that because it's also what the DoS says?

[aussiewench 9]

Yodrak: so you're saying that what I'm saying is what you've been saying, which is what VJ has been saying, and that you're not just saying that because it's also what the DoS says?

[Dean iWait 0]

I guess sitting next to my fiancee at the interview should be fairly good proof that I still intend to marry her.

[Yodrak 7]

Dean iWait,

Not at all. You could be someone hired by the woman, or by a trafficker, to play the part.

Yodrak

I guess sitting next to my fiancee at the interview should be fairly good proof that I still intend to marry her.

[Dean iWait 0]

Dean iWait,

Not at all. You could be someone hired by the woman, or by a trafficker, to play the part.

Yodrak

I guess sitting next to my fiancee at the interview should be fairly good proof that I still intend to marry her.