K1 Visa 129-F Denial -- Next Steps?

[Pinkrlion 2,715]

17 minutes ago, JAC&MEH said:

I have been in frequent contact with 3 posters on this forum who had very similar situations.  One is from Kenya, the other Jamaica, and the last in Argentina.  In all three cases, they provided the USCIS with Single Status Certificates as proof of their eligibility to marry.  In two of the instances, it was at the same USCIS stage as we are when responding to an RFE and in both cases they proceeded all the way through the process and successfully obtained their K1 visa.  In one of the cases, it was during an AOS stage after the person had already entered the country on a visitor visa, married a US citizen, and was then going through the AOS phase.  I am fully aware that there is absolutely no consistency on how different adjudicators may consider evidence submitted to them in response to a RFE.  It is quite possible that the others that I have been communicating with simply lucked out.  Who knows.  I consulted with a US attorney and a Mexican attorney when preparing our response to the RFE.  I had my fiancee prepare a sworn statement, the Mexican attorney write a letter, and sent in the official Single Status Certificate.  I had everything officially translated into English.  Not really sure what else I could have done.

 

As for the misrepresentation angle, I gave that a lot of thought and that was another reason I sought legal counsel in both the US and in Mexico. She honestly was living with this guy for over 5 years at the time she applied for her visitor visa.  If it becomes necessary, he is willing to cooperate in whatever fashion may be necessary to document the relationship.  After getting this denial, it appears that may be our last option but I am not aware of how one can obtain a legal divorce from someone that you were never legally married to.  I was not aware but in Mexico if two people (who are otherwise legally able to marry) live together as husband and wife for over 2 years, they are considered to be in a common-law marriage.  I had this corroborated by the Mexican attorney in her letter that was submitted with the RFE response package as I am by no means an expert in Mexican law.  

 

As most people on the forum are aware, the information conveyed on the case status page is not very helpful and does not elaborate in the least bit so clearly I am going to have to wait for the actual letter to come in the mail.  My last hope is that we are actually receiving a NOID and not a flat out denial so that we will at least have one more opportunity to find which rock that are actually looking for.  From what I hear, the appeal process is not the right approach.  Is there any chance that the denial could be based on something entirely apart from the actual subject of the RFE?  I'm assuming that must be it or otherwise I would have thought they would have brought any other concern up during our RFE.

K-1 petitions do not receive NOID. They are either approved, denied, or refused. 

[JAC&MEH 34]

18 minutes ago, Pinkrlion said:

K-1 petitions do not receive NOID. They are either approved, denied, or refused. 

Thanks for the clarification.  So much for that hope.  LOL

[TennilleO 117]

1 hour ago, Pinkrlion said:

K-1 petitions do not receive NOID. They are either approved, denied, or refused. 

What is the difference between being denied and refused? I would think its the same. 

[Timona 4,207]

1 hour ago, geowrian said:

Wait for the letter to know for sure why it was denied / why they didn't accept the evidence provided.

 

A Single Status Certificate is often useless after somebody has claimed on official forms to be married. The reason is you are trying to prove a negative. A Single Status Certificate does not prove that one is actually single - just that there is no record of a marriage by that issuing authority.

For instance, until my wife and I went through the Report Of Marriage process for the Philippines, she could receive a Certificate of No Marriage (CENOMAR) just fine in her home country. The certificate would not mean she is actually single (she was clearly married to me), just that there was no record of it in the Philippines.

 

Overcoming that previous visa application marital status is going to be very difficult. I honestly am not sure how to do it - again, it's trying to prove a negative. Others have had the issue but we typically do not hear back from them on this website to see how things turned out.

I hope things work out. Best wishes.

 

Edit: One of the reasons the US is so strict on this is because people lie about their marital status in attempts to obtain a tourist visa. They believe stating that they are married is a strong tie to return home and therefore less likely to be denied under 214(b). So it could means admitting to a misrepresentation (which carries a permanent bar with it, if deemed material).

Not to hijack topic..but this is sadly true. 2 weeks ago,  I read a forum where some 3 fellow countrywomen where asking how to remedy this. They had got tourists visas under the pretence that they are married.  They then get here, get married ASAP (this was the goal) and apply for AOS. RFE follows, they come online claiming "the information was wrongly filed by cyber agent." Majority of people in my country have a smartphone. There's no way a cyber cafe guy filed your application wrongly. Anyway, don't you confirm before submit? Nonetheless, one of them who was seeking advice to remedy the situation admitted that she knowingly lied that she's married and that fellow countrymen are being told to apply for tourist visas as it's the quickest way to get to US, but at the same time they should claim they are married to increase their chances. As soon as they get here, they marry right off the plane. I have two good ones; 1 that I actually witnessed while I was being interviewed 6 years ago and the other was told to me last week by a fellow countryman who's trying to come to US. This is someone's thread. So if anyone wants to know, feel free to PM..

 

Please, this was a by the way. Don't continue with this as it doesn't answer the OP's question. You can PM me if you wanna hear more 

 

[carmel34 3,620]

18 hours ago, JAC&MEH said:

During a previous visitor visa application she listed her marital status as married.

So this seems to be the likely problem in your case, and reason for denial, and was likely viewed as a material misrepresentation of facts in order to gain or attempt to gain a US visa.  What was the date of the previous visitor visa application?  Was it obtained to travel to the US to visit you?  Was she in fact living in a common-law marriage relationship at that time, or was she already separated from her common-law spouse?  The big challenge in overcoming this, is that US immigration officers may think that she was not honest in completing the application for a B visa and that apparent lie has big long-term consequences, like a permanent bar from ever entering the US.  If she was actually married, i.e., in a "common law marriage," at the time of the visitor visa application that is on record, maybe she could provide evidence of this, that she was living in a bona fide marriage relationship, when she completed the B visa application.  Documents like a joint lease, jointly-owned property, bank accounts, jointly-filed tax returns as common-law married, etc. with the common-law spouse, with dates that match the date of the B application.  Add to that a common-law divorce certificate and you might have a chance to overcome the problem with a future K-1 or CR-1 petition and visa application.  If those do not work out because she has a lifetime ban from entering the US, you may have to consider moving to Mexico to live with her in order to be together.  Good luck!

Edited November 8, 2019 by carmel34

[geowrian 22,337]

3 minutes ago, carmel34 said:

So this seems to be the likely problem in your case, and reason for denial, and was likely viewed as a material misrepresentation of facts in order to gain or attempt to gain a US visa

That may or may not be the case (being determined to be a material misrep requiring a waiver), but would not impact petition at all. It would only impact the visa application later. Even somebody with a clear unwaivable bar qualifies as a beneficiary of a petition.

Edited November 8, 2019 by geowrian

[JAC&MEH 34]

17 minutes ago, carmel34 said:

So this seems to be the likely problem in your case, and reason for denial, and was likely viewed as a material misrepresentation of facts in order to gain or attempt to gain a US visa.  What was the date of the previous visitor visa application?  Was it obtained to travel to the US to visit you?  Was she in fact living in a common-law marriage relationship at that time, or was she already separated from her common-law spouse?  The big challenge in overcoming this, is that US immigration officers may think that she was not honest in completing the application for a B visa and that apparent lie has big long-term consequences, like a permanent bar from ever entering the US.  If she was actually married, i.e., in a "common law marriage," at the time of the visitor visa application that is on record, maybe she could provide evidence of this, that she was living in a bona fide marriage relationship, when she completed the B visa application.  Documents like a joint lease, jointly-owned property, bank accounts, jointly-filed tax returns as common-law married, etc. with the common-law spouse, with dates that match the date of the B application.  Add to that a common-law divorce certificate and you might have a chance to overcome the problem with a future K-1 or CR-1 petition and visa application.  If those do not work out because she has a lifetime ban from entering the US, you may have to consider moving to Mexico to live with her in order to be together.  Good luck!

Her previous visitor visa application was ~4 years ago and we did not even know one another.  She was not granted the visa and no; she was not attempting to acquire a visa for purposes of meeting me.  To my understanding, it could not be considered "material" if she did not in fact actually receive the benefit - but I may be mistaken on this point.  She was in fact in a common-law marriage with her boyfriend at the time and when we received the RFE, she even contacted her ex and he expressed his willingness to help us in anyway that he could.  She parted ways with her common-law spouse ~2 years after the visa was denied so no; she was not "separated" at the time she applied for the visa.  We were advised by the Mexican attorney that the Single Status Certificate was the best way to demonstrate that she has no impediments to marry.  I am hoping that when I receive the letter that they are not claiming willful misrepresentation but simply are not accepting the Single Status Certificate as adequate proof.  I am not aware of how to obtain a "common-law divorce certificate" in Mexico but I agree that that would be the  logical next step.  I just wish one of my two attorneys had advised me to that fact as both of them agreed that the Single Status Certificate was the correct way to address the RFE.

[Ed&Midori1031 330]

18 hours ago, JAC&MEH said:

Well after waiting for an answer from our RFE response, I got an electronic notification today that our petition has been denied.  I'm sure most people who have been denied quickly leave this forum all together but I could really use some advice.  I have not yet received the letter, so I have no explanation for exactly why we were denied but I would think it would be safe to say it is related to our RFE.  It said the letter would explain the reasons and what our options are but I have read on here that there are NO options after being denied a K1.  I guess I'm reaching out to anyone on here that has been through the same thing that could shed some light on where to go from here.

What was the RFE for and did you answer it within the required time frame? 

Edited November 8, 2019 by Ed&Midori1031

[JAC&MEH 34]

2 minutes ago, Ed&Midori1031 said:

What was the RFE for and did you answer it within the required time frame? 

Please don't take this the wrong way but if you will read the third post in this thread, I explain the RFE.  Yes; we did respond within the required time frame.  We actually responded within 2.5 weeks of receiving the RFE.  I flew down as soon as I could to meet with our Mexican attorney and collect all the necessary documents and translations.

[SusieQQQ 11,586]

17 hours ago, JAC&MEH said:

 I'm not sure she's up to waiting another year for me.  

Not to be harsh but that’s a red flag (for you, not the case). Many marriages suffer far worse stresses than being apart a year (not to minimize it, but). Many people here have been apart a few years before one can immigrate.

 

 

7 minutes ago, JAC&MEH said:

To my understanding, it could not be considered "material" if she did not in fact actually receive the benefit - but I may be mistaken on this point.  

That’s incorrect, attempting to receive the benefit is all that is required. The wording is “The person procured, or sought to procure, a benefit under U.S. immigration laws;” (bold added)

 

https://www.uscis.gov/policy-manual/volume-8-part-j-chapter-2

Edited November 8, 2019 by SusieQQQ

[Ed&Midori1031 330]

Ok gotcha, totally missed it, but the good thing is you did respond within the time frame.  Sorry you're going through this. 

[SalishSea 17,801]

Even if it’s not a material misrep per se, providing false marital status info on ANY US visa application is obviously not smart, as evidenced here.  One of the few criteria for I-129f approval is evidence that both parties are free to conclude a legal marriage, and in this case the beneficiary was unable to do that due to a previous lie.

[Almostthere08 16]

If I remember correctly when my husband applied for a visitors visa (prior to us meeting I just saw the copy of the application) there was a box to check for marital status that gave the options of Single, married, divorced or common law marriage. He selected common law as he was with his children’s mother for some years at the time and that’s common in Jamaica as well. Because he only selected common law he was able to get a visa but they asked a lot of questions related to his ex and their relationship. If she had that option and selected married anyway maybe that is what is hurting your case. 

[Boiler 45,445]

This situation comes up every now and then, do not recollect anybody coming back?

 

Now certainly where I am and in the US Married means being Married and not in a common law relationship. I would focus on how this is different in Mexico and showing that there being married includes common law. Also begs the question how you break such a relationship legally.

[JAC&MEH 34]

4 minutes ago, Boiler said:

This situation comes up every now and then, do not recollect anybody coming back?

 

Now certainly where I am and in the US Married means being Married and not in a common law relationship. I would focus on how this is different in Mexico and showing that there being married includes common law. Also begs the question how you break such a relationship legally.

This is precisely why I consulted an immigration and family law attorney in Mexico and even had her write a letter that I submitted with the RFE response package.  Apparently due to the expense involved, it is very common for people to live together as husband and wife without ever legally getting married.  As our attorney explained it, if two people, that are legally able to be married, live together continuously for at least 2 years, they are considered to be "married" under Mexican law.  Interestingly enough, if they have a child together, there is not even a 2-year requirement.  Believe me, this has been quite a learning experience.