Refusal due to section 212(a)5

[Stephanie&Sofiane 19]

On 12/25/2020 at 9:10 AM, Far.han said:

Mine is july2018..

Potomac center..

Urs??

Hi, our center was Nebraska Center and our PD is October 2018. Some have told us that's a really long time, but long waits are not unusual. Our attorney said to expect anywhere from 9 months to 1 year to hear anything more after the I 130 was received. They were right! It was approved in October 2019, and from there everything was fast from NVC until offices closed due to covid-19. It doesn't take everyone a year but I was also told nebraska center is usually slow. 

 

As for the 212a5, we still do not know what reason it was given lol. The USCIS reaffirmed the original I130 a couple of months ago without requesting any further information from us. Now we are just waiting on a second interview. 

 

Since they didn't ask for anything else we are wondering if the further review could be because a) we are using a joint sponsor, something USCIS wouldn't have known when the I 130 was originally approved, or b) because while waiting his category had changed from CR1 to IR1 and maybe USCIS needed to decide if we need more evidence for that. But we really don't know what the possible inadmissibility was. We are just following instructions for the next steps now!

 

As for if it applies to labor certification, we still don't know that either. Our attorney said labor certification shouldn't apply to a spouse visa. That would make sense, a spouse would be a permanent resident and have a right to work rather than being a "threat" to the jobs of US citizens. Maybe they can use a labor certification refusal if they don't think the immigrant has enough work skills to provide for himself or herself and the spouse here, but I'm not sure. It seems to be used as a general category.

 

I hope you hear something soon if you haven't already, good luck! 

[Orangesapples 1,954]

17 minutes ago, Stephanie&Sofiane said:

 Maybe they can use a labor certification refusal if they don't think the immigrant has enough work skills to provide for himself or herself and the spouse here, but I'm not sure. It seems to be used as a general category.

 

That's what the public charge issue is. Not labor certification. It looks like an error. 

[Stephanie&Sofiane 19]

46 minutes ago, Orangesapples said:

That's what the public charge issue is. Not labor certification. It looks like an error. 

True, it's applicable to public charge. But since it's being used generally, maybe they use it for various reasons at their discretion? I have read that consular officers can pretty much select refusals as they see fit but USCIS of course has authority on the decision. 

 

When I emailed the embassy and asked about the 212a5 and labor certification and if it could have been chosen incorrectly, the response was that it is was not a mistake. Another couple with the same refusal was also told by the Embassy that 212a5 is a general placeholder. But there is also a Miscellaneous option so I don't know why they choose one over the other. 

It's interesting how even the attorneys we and others have consulted with also don't know why 212a5 is being used as a general placeholder.

 

When I contacted USCIS and asked about it shortly after he received the refusal, the agent told me, as soon as I said 212a5, "They will just reaffirm and you won't be notified until you receive the affirmation notice." Our attorney had expected a NOID but it was as the agent said, there was a notice of reaffirmation sent. So it does seem like something technical and not related to needing proof of bona fide marriage. A further review as stated on the refusal. Hopefully all the 212a5 refusals are simple like that.

 

[Orangesapples 1,954]

23 minutes ago, Stephanie&Sofiane said:

True, it's applicable to public charge. But since it's being used generally, maybe they use it for various reasons at their discretion? I have read that consular officers can pretty much select refusals as they see fit but USCIS of course has authority on the decision. 

 

When I emailed the embassy and asked about the 212a5 and labor certification and if it could have been chosen incorrectly, the response was that it is was not a mistake. Another couple with the same refusal was also told by the Embassy that 212a5 is a general placeholder. But there is also a Miscellaneous option so I don't know why they choose one over the other. 

It's interesting how even the attorneys we and others have consulted with also don't know why 212a5 is being used as a general placeholder.

 

When I contacted USCIS and asked about it shortly after he received the refusal, the agent told me, as soon as I said 212a5, "They will just reaffirm and you won't be notified until you receive the affirmation notice." Our attorney had expected a NOID but it was as the agent said, there was a notice of reaffirmation sent. So it does seem like something technical and not related to needing proof of bona fide marriage. A further review as stated on the refusal. Hopefully all the 212a5 refusals are simple like that.

 

It looks like there was a newbie working at the embassy. People make mistakes in private companies all the time, embassies can't be that different. It's annoying when it's at your expense though. 

[Boiler 45,434]

It is a catchall, seems to be used most often when they do not think the marriage is valid.

[Stephanie&Sofiane 19]

3 hours ago, Orangesapples said:

It looks like there was a newbie working at the embassy. People make mistakes in private companies all the time, embassies can't be that different. It's annoying when it's at your expense though. 

I have wondered if they are just saying it's not a mistake lol because obviously they wouldn't want to bring too much attention to it. At this point anything seems likely, but for us I still think it might be related to the joint sponsorship. My income is fine but for 2018 (a year they factored in) was really low due to working very part-time while finishing graduate classes. Our joint sponsor is a close family member who is retired, and the attorney said while a retired cosponsor is fine when the retirement income is over the requirements, she said it can also get a closer look. Public charge probably? Could be a newbie for sure or something technical like that. It would be sort of nice to know what the case notes said. When the NVC received our file the only notes they saw stated Applicant has a possible inadmissibility. We're just happy USCIS upheld the original approval but have been keeping all relationship proof available just in case, as attorneys always encourage.

Thank you for the reply!

[Boiler 45,434]

Current income is what counts, past years is a tax filing issue.

[Stephanie&Sofiane 19]

3 hours ago, Boiler said:

It is a catchall, seems to be used most often when they do not think the marriage is valid.

I've wondered that too, but we were requested nothing further to prove our relationship. Also when my husband was given the refusal, he was told " We can't give you the visa today," basically worded in a way that led us to think they had been ready to approve but found something needing further review. He had been asked to sit down while my tax documents were being reviewed then was called back over and given the white slip.

 

We have quite a lot of evidence for our marriage and from the 4 months total I spent with him and his family (two separate visits) that I think it's not so much about questioning the relationship. Of course I could be wrong but given that we were reaffirmed quickly and without a NOID or any RFE for relationship evidence, it seems like they really just need to review something regarding admissibility. However the second interview will prove or disprove that I think lol. 

 

They do refuse alot based on suspicion about a relationship but not all refusals are based on such suspicions. At least with a 221g you know you're being asked for information. It seems the best thing to do about a 212a5 (just my opinion) is to wait and see what USCIS says and does after reviewing. 

 

Thank you for replying!

 

[Stephanie&Sofiane 19]

3 hours ago, Orangesapples said:

It looks like there was a newbie working at the embassy. People make mistakes in private companies all the time, embassies can't be that different. It's annoying when it's at your expense though. 

https://www.google.com/amp/s/dartmouthpolitics.com/2020/04/01/a-critical-review-of-consular-nonreviewability/amp/

 

Was going to say definitely annoying and stressfulwhen it's at your expense, but at least, thankfully, USCIS gets another look at these cases first.

 

Here's an article too I think has some good information, and talking about mistakes by consular officers. Talks about how nonreviewability of their decisions can lead to more mistakes and also overstepping authority. Good to know so we know what to look into and consult attorneys or politicians about. 

[Stephanie&Sofiane 19]

16 minutes ago, Boiler said:

Current income is what counts, past years is a tax filing issue.

They request the 3 most recent tax returns and factor them all in. My 2019 income was above their requirements, however due to the previous two years being under the requirements we needed to use a joint sponsor. If only the current income counted we wouldn't need a joint sponsor.  And this was something not known when our I-130 was approved. You can be refused if an officer sees information that is new since I-130 application that they think could be an issue. Still our best guess as to what needed further review.

[Stephanie&Sofiane 19]

6 minutes ago, Stephanie&Sofiane said:

They request the 3 most recent tax returns and factor them all in.

https://www.boundless.com/immigration-resources/what-is-a-green-card-joint-sponsor/

 

A joint sponsor for a spouse is needed when the most recent tax year meets requirements but the previous two years don't. That's exactly what our attorney explained and she was correct as the NVC requested Joint Sponsor information. It would be good to know if the 212a5 could be used for this for further review, it's a general category so probably.

[Boiler 45,434]

5 minutes ago, Stephanie&Sofiane said:

https://www.boundless.com/immigration-resources/what-is-a-green-card-joint-sponsor/

 

A joint sponsor for a spouse is needed when the most recent tax year meets requirements but the previous two years don't. That's exactly what our attorney explained and she was correct as the NVC requested Joint Sponsor information. It would be good to know if the 212a5 could be used for this for further review, it's a general category so probably.

Best to avoid those sort of sites, they are sadly often wrong. The I 864 and accompanying notes is the best source.

[Stephanie&Sofiane 19]

4 minutes ago, Boiler said:

Best to avoid those sort of sites, they are sadly often wrong. The I 864 and accompanying notes is the best source.

Sorry but I was given that information from our attorney first, not a site. Pretty sure they are not incorrect especially as I submitted my taxes without a joint sponsor first, and just as our attorney stated the NVC sent notice that we needed a joint sponsor. Due to my 2017 and 2018 being under requirements, despite 2019 being above. We have had an attorney from the start of our I-130 process. I trust them more than discussion boards or sites and therefore really recommend anyone with a difficult case consult an attorney. They cannot convince the USCIS or Embassy for you, but they will give you the right information, help you prepare, and advocate for you. Especially when you have someone with over 20 years experience as an immigration attorney. Best resources for guidance.

Edited December 30, 2020 by Stephanie&Sofiane

[Boiler 45,434]

Up to you. The information is there to be read on the USCIS site.

[Stephanie&Sofiane 19]

2 minutes ago, Boiler said:

Up to you. The information is there to be read on the USCIS site.

We've had a great experience using an attorney, and definitely the information is on the USCIS website but when you have special circumstances I think it's best to use an attorney. Thank you!