How to Reapply after 221g Refusal (IMBRA)

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My fiance was refused for her visa and given a pink slip.  They officer said she passed everything, but I didn't and am ineligible because of 2004, 2005 and 2007 misdemeanor convictions.  I provided all information related to them with the original application so there was no fraud on my part, nor any new evidence brought up from the officers interview/research.  They told her they are sending the papers back to USA and that they cannot give her a visa.  My convictions were Public Intoxication, Disorderly Conduct, Possession of Marijuana (none are Adam Walsh Act things that make me truly ineligible.  Instead she was using her own power of "immigration God" where she can decide whatever she wants without any real accountability (anways, hehe).

 

So, on their FAM handbook, and other government sites, it says I can reapply again, and that if I do it within 1 year I don't have to do another application or pay the fee again.  However, when I try to schedule an appointment it's trying to make me pay the fee.  How do I reapply?

 

I have new evidence.  The difficult thing is one of the charges was an arrest for strangulation that resulted into a charge of disorderly conduct.  I have a 2008 affidavit that I didn't provide where the witness (my mother) said that the police misrepresented her in his written statement and that she did not see strangulation.  Also, I have documents showing the charges were dropped to disorderly conduct and the order of protection was dropped.  The victim was my father, who ran into the woods and hid (he ran and hid because he kicked me first, then I hit him and penned him by the shoulder against the wall for a few seconds.  Yes, something very terrible, but not strangulation, and 14 years ago, and not a conviction).

 

They say innocent until proven guilty by a court of law, HOWEVER, with IMBRA you are guilty of something that the court determined you weren't.  The officer is misunderstanding IMBRA thinking it disqualifies me, when all it does is require a disclosure, which I did.

 

Funny, the law is 60% talking about a pamphlet that they should give you at the interview regarding domestic violence.  They did not give my fiance such pamphlet (so I followed the law and they didn't).  Has anyone else either received or not received the pamphlet)?

[brevig 28]

Aha, my new evidence I didn't mention.  It's the 2008 affidavit, a signed/notarized statement from my dad saying strangulation never occurred, and a signed/notarized statement from my ex wife saying that the 11 years together were 100% free from any forms of abuse (plus getting some notarized character references from others).  Does that sound like enough to overturn their decision if I get a new interview?

 

Another thing, is the officer only asked 3 questions (where met, why not marry in Cambodia, and if we had an engagement party).  It was very clear that the officer had already decided the outcome of the interview before it began (which is basically them saying they know more than USCIS who already did a complete background check on me and approved it).

Edited July 30, 2021 by brevig

[JeanneAdil 6,492]

A pink slip is a 221 (g) visa denial. In such a case, you will be issued a reference ID to track the details of the case online which should be on the pink slip.   A phamplet is given out to immigrant for an approved visa to welcome them to USA and tell the about SS #'s,  etc not for  denied visas

 

And  i remember reading from one member that the security check is not done by USCIS or NVC but later  (i can be wrong on this and i will stand proven wrong if others chime in with info)

 

A CO does read the packet before the interview/  that's where the questions come from

 

you mention IMBRA which says

 Additionally, K-1 and K-3 visa applicants are provided with any existing criminal background information on their U.S. citizen fiancé(e)s or spouses that the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), received from other government agencies during processing of I-129F petitions filed for them.

 

Did she know of these convictions?

 

Your case will be returned to US and there is no appeal for K1/  you can reapply if you have met in last 2 years or you could go and marry and petition a spouse visa which has an appeal process (that would be after an interview and denial and an appeal takes longer that a year)

 

[brevig 28]

4 minutes ago, JeanneAdil said:

A pink slip is a 221 (g) visa denial. In such a case, you will be issued a reference ID to track the details of the case online which should be on the pink slip.   A phamplet is given out to immigrant for an approved visa to welcome them to USA and tell the about SS #'s,  etc not for  denied visas

 

And  i remember reading from one member that the security check is not done by USCIS or NVC but later  (i can be wrong on this and i will stand proven wrong if others chime in with info)

 

A CO does read the packet before the interview/  that's where the questions come from

 

you mention IMBRA which says

 Additionally, K-1 and K-3 visa applicants are provided with any existing criminal background information on their U.S. citizen fiancé(e)s or spouses that the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), received from other government agencies during processing of I-129F petitions filed for them.

 

Did she know of these convictions?

 

Your case will be returned to US and there is no appeal for K1/  you can reapply if you have met in last 2 years or you could go and marry and petition a spouse visa which has an appeal process (that would be after an interview and denial and an appeal takes longer that a year)

 

Thanks for the response.  For the background check, according to USCIS they are the ones that do it (I also saw more detailed charts showing how it floats around their office through the checks, but can't find it right now):

https://www.law.cornell.edu/uscode/text/8/1375a

 

Yes, she knew of the convictions and arrests (even the time range, details, etc., I told her a couple years ago, then we reviewed it several times prepping for the interview).  I currently live with her (and have for nearly 5 years), but I have 4 kids in the states (6-16yr) and my mom who provides most of their care is having health issues, plus I just bought a house and car thinking we were in the clear once I passed USCIS approval.

 

How do I reapply though, as I'm stuck at that part?

 

For IMBRA, the wording of the law is it should be given out at the interview (and also sent before, which we also never received)

 

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(1) Fiancé(e)s, spouses and their derivatives During an interview with an applicant for a K nonimmigrant visa, a consular officers shall—

...

(B)

provide a copy of the pamphlet developed under subsection (a)(1) in English or another appropriate language and provide an oral summary, in the primary language of the visa applicant, of that pamphlet; and

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Also, in FAM (their handbook) it says the same:

https://fam.state.gov/FAM/09FAM/09FAM050207.html#M502_7_3_D_1

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b. (U) You must direct the interview to determine eligibility as if the applicant were applying for an immigrant visa in the immediate relative category. You must also:

...

(4)  (U) Provide to each K-1 or K-3 visa applicant another copy of the USCIS pamphlet, "Information on the Legal Rights Available to Immigrant Victims of Domestic Violence in the United States and Facts about Immigrating on a Marriage-Based Visa,

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Another issue is that Cambodia won't allow me to marry without a blank FBI background check (I think mine is blank though, as the arrests/convictions are expunged).  My only savior if things continue to go south is I can marry in Utah while being here in Cambodia and then do the spousal visa that way.

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Also, in their manual it says:

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the applicant is entitled to present evidence to overcome a presumption or finding of ineligibility.  It is the policy of the U.S. Government to give the applicant every reasonable opportunity to establish eligibility to receive a visa.  This policy is the basis for the review of refusals at consular offices and by the Department.  It is in keeping with the spirit of American justice and fairness.

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I'm hoping this means I can get a chance to submit additional documents before it is sent back.  Also, in several places it says I can apply right away, and without fee (since 221g) but I'm not seeing how to do it.

[JeanneAdil 6,492]

14 minutes ago, brevig said:

Also, in their manual it says:

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the applicant is entitled to present evidence to overcome a presumption or finding of ineligibility.  It is the policy of the U.S. Government to give the applicant every reasonable opportunity to establish eligibility to receive a visa.  This policy is the basis for the review of refusals at consular offices and by the Department.  It is in keeping with the spirit of American justice and fairness.

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I'm hoping this means I can get a chance to submit additional documents before it is sent back.  Also, in several places it says I can apply right away, and without fee (since 221g) but I'm not seeing how to do it.

I was outside the embassy when i got a denial and i was only allowed to speak to the man at the window who said our case had already been sent (within minutes of interview)

it appears you have searched and researched and studied the manuals 

Expunged means just that and you should get that FBI report and marry there

manual also says

Your denial or revocation notice will provide information about whether the decision may be appealed and where to file your appeal.

 

 With certain exceptions, you may file a motion to reopen or a motion to reconsider if you received an unfavorable decision in your case. You may file a motion even if your case is not eligible for an appeal. 

 

My appeal was for a CR1 denial and i won  at that time 2011 i did a lot of research but sorry all i see for a K1 is that the petition denied at USCIS can be appealed but if denial is at embassy by CO,  it can't

Rapid visa says you can file I 290B within the first month but looking at that form ,  it is not for K1 

 

Reading and reading over and over and most attorney sites say there is no basis to appeal a nonimmigrant visa 

https://www.nolo.com/legal-encyclopedia/k-1-fianc-visa-denied-can-i-appeal-refile.html

 

i have looked and looked and sorry for your situation and wish i knew the answer(s )  

if you do find the right solution,  please let us know as its so important here to have the right information 

[SalishSea 17,819]

5 hours ago, brevig said:

My fiance was refused for her visa and given a pink slip.  They officer said she passed everything, but I didn't and am ineligible because of 2004, 2005 and 2007 misdemeanor convictions.  I provided all information related to them with the original application so there was no fraud on my part, nor any new evidence brought up from the officers interview/research.  They told her they are sending the papers back to USA and that they cannot give her a visa.  My convictions were Public Intoxication, Disorderly Conduct, Possession of Marijuana (none are Adam Walsh Act things that make me truly ineligible.  Instead she was using her own power of "immigration God" where she can decide whatever she wants without any real accountability (anways, hehe).

 

So, on their FAM handbook, and other government sites, it says I can reapply again, and that if I do it within 1 year I don't have to do another application or pay the fee again.  However, when I try to schedule an appointment it's trying to make me pay the fee.  How do I reapply?

 

I have new evidence.  The difficult thing is one of the charges was an arrest for strangulation that resulted into a charge of disorderly conduct.  I have a 2008 affidavit that I didn't provide where the witness (my mother) said that the police misrepresented her in his written statement and that she did not see strangulation.  Also, I have documents showing the charges were dropped to disorderly conduct and the order of protection was dropped.  The victim was my father, who ran into the woods and hid (he ran and hid because he kicked me first, then I hit him and penned him by the shoulder against the wall for a few seconds.  Yes, something very terrible, but not strangulation, and 14 years ago, and not a conviction).

 

They say innocent until proven guilty by a court of law, HOWEVER, with IMBRA you are guilty of something that the court determined you weren't.  The officer is misunderstanding IMBRA thinking it disqualifies me, when all it does is require a disclosure, which I did.

 

Funny, the law is 60% talking about a pamphlet that they should give you at the interview regarding domestic violence.  They did not give my fiance such pamphlet (so I followed the law and they didn't).  Has anyone else either received or not received the pamphlet)?

The petition should never have been approved, since the convictions make you ineligible to file that petition.

 

You could try to appeal, but K visa denials are rarely, if ever, appealed.  The original petition would be sent back to USCIS, and then they would probably deny as they should have done initially.

 

You would be better off getting married and applying for a spousal visa.

[retheem 564]

Get married and file Cr1. Chapter closed

[joe.b 33]

This is really frustrating to hear. I'm sorry you're going through this.

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3 hours ago, Jorgedig said:

The petition should never have been approved, since the convictions make you ineligible to file that petition.

Under what basis?  I never did an Adam's Walsh Act crime, which is the ONLY crimes that make me ineligible.  The IMBRA only requires disclose as this is my first K1 visa.  If I were to apply for more k1 Visa's and require a waver, then yes, I would be ineligible for the waiver.  However, at the current stage I'm completely eligible.

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7 hours ago, JeanneAdil said:

With certain exceptions, you may file a motion to reopen or a motion to reconsider if you received an unfavorable decision in your case. You may file a motion even if your case is not eligible for an appeal.

I saw that one and I would like to do that, just not seeing how.  I did send an email requesting to reopen.  I will let everyone know the response once I receive one.  Also, will keep watching in case someone else had the same experience and can shine light on the road ahead.

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2 hours ago, retheem said:

Get married and file Cr1. Chapter closed

Sounds like an easy solution, but it puts me through huge hardship for no reason.  I'll end up loosing roughly $4000 or more and a year of my life with my kids, which could lead to more issues (exa: I doubt the private school will allow my youngest son to continue there if I'm not there because he has ALOT of behavioral problems when with his mother and not with me and the only reason they didn't expel him at the end of last year was under the basis I was returning soon).  I mean it's just a snowball effect of issues caused by this, when I'm entitled to a chance to a chance to present evidence to overcome their concerns.

 

Also, I was just thinking how unfair this is.  IMBRA is a great thing, but it's not being applied properly.  For example, watch the movie Double Jeopardy or another movie where someone is arrested, and even convicted of something they didn't do, but later they are acquitted.  The officer would present the details from the arrest as if they are the truth.  The charges were dropped because I did not do what was described (and even the witness signed an affidavit saying she was misrepresented).  However, my fiance was not told that the charges were dropped or the final outcome, just told that I strangled someone and that she can't let us go to USA because I'm a safety risk.   They should also tell the fiance the outcome and judgement, as that is officially what happened.

 

A police report is not the word of God.  The police talks to someone, in my case a witness who even said they didn't witness but a split second of it.  The police then goes into their car and writes a report (or even worst writes it an hour later at the station).  There is lots of room for errors and misrepresentation.  This is why I should be given a chance to gather evidence to defend myself.

[brevig 28]

2 hours ago, retheem said:

Get married and file Cr1. Chapter closed

Also, why should I pay more money and fees when I already paid and was denied under 221g which clearly says I can reapply for free.  Even in their FAM manual they advise officers to try not do 221g because it doesn't require a fee and to use something else so they an get the MRV fee each time they do an appointment.

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7 hours ago, JeanneAdil said:

My appeal was for a CR1 denial and i won  at that time 2011

Curious, approximately how much time and money was lost over the denial?  I mean was it like another year wait and paying extra fees (and hotel bills, and restaurant travel to Embassy)?

 

It's so frustrating, we came to the interview, had to stay for the follow up interview, and now I'm in Phnom Penh, 6 hours from our house, and we are under complete lockdown (COVID restrictions because of another wave) for 2 days in a hotel because of this.  The lockdown is for 2 more weeks, maybe longer, and we can't return to our home.  Adding those things, this could easily cost much, much more than the $4000 I quoted earlier.

[HRQX 4,145]

8 hours ago, brevig said:

I can marry in Utah while being here in Cambodia and then do the spousal visa that way.

Yes you can do that. An example: