Fraud Indicators

[Samoray 165]

Hello

After reading many of the scenarios that people go through when applying for a spouse visa, i have summed some of the factors that make the USCIS suspicious about the visa case .

1- The Petitioner and the beneficiary have known each other for a very short period of time.

2- The Petitioner spent less than 7 days in the beneficiary's country for marriage.

3- The petitioner and the beneficiary have a big age difference.

4- The period between the date of marriage and the date of divorce was very short ( if any of them were married before ).

5- They do not speak a common language.

6- No family members attended the marriage ceremony.

7- The petitioner has applied before for a visa for an Ex.Spouse

8- The beneficiary had a visa case before with an Ex.Spouse

And there must be more indicators

Good Luck for all

[Darnell 8,478]

ya, #5 is a big thing with the IV unit in Guangzhou, China - so big, in fact, that 'communication ability' can be used as reason to deny a CR-1, for 'not a bonafide relationship'. Usually, this 'communication ability', when documented in an 'Evolution of Relationship Letter' and turned over on interview day, trumps a lot of silliness.

Here's my template example, for an EOR - http://www.visajourney.com/forums/index.php?showtopic=260331&view=findpost&p=3995116

re: USCIS - did you mean DoS or the Embassy, instead? The list you provided usually is 'run through' at the Consular Level.

Edited August 14, 2010 by Darnell

[bobby_kvisa 7]

Thank you for this list. I do not have anything to add but one observation.

Regarding Faud Indicator #1 in some countries that may not be such a big deal. For example, in India arranged marriages are fairly common and it is also not unusual for the bride and groom to have spent very little time with each other or to have a brief courtship. In many Indian families it simply appears inappropriate for a man and woman introduced to each other for the purposes of marriage to go out on dates or talk with each other continuously without official announcement of their intent.

Of course the situation must still be explained (ex: Evolution of Relationship Letter) and it helps in this situation to provide proof of parental approval (affidavits or photographs).

I think this may be the case as well for other countries so I did want to bring it up as a point to note.

Edited August 14, 2010 by bobby_kvisa

[BigJohn 4]

How big of an age difference is considered suspicious?

[LotofPatience 65]

How big of an age difference is considered suspicious?

There is no established standard, but 20+ years would focus an attention.

Loto

[RyannTanya 2]

if petitioner or beneficiary has a criminal background might also consider as a red flag.

[johndoe12 2]

I dont know about #2. There might be reason why the petitioner couldn't stay at the beneficiary's country for more than 7 days. In my case, I went there for a week because I just went to the county two months ahead and couldn't get vacation. Depends on who is looking into your file.

[Christi85 86]

Useful list - thank you for putting it together

Re point 4 - does the same go for engagement (i.e. applying for a K-1 visa very shortly after the petitioner/beneficiary's divorce?).

I'm asking because I know a case like that - petitioner waiting for his divorce paperwork to come through, and as soon as that happens, he wants to petition for a K-1 for his foreign girlfriend to come to the US as a fiancee (a girlfriend he had before he even filed for divorce ).

Wondering if you know of cases where this has raised a red flag. Thanks!

[Brian&Mel 0]

Hello

After reading many of the scenarios that people go through when applying for a spouse visa, i have summed some of the factors that make the USCIS suspicious about the visa case .

1- The Petitioner and the beneficiary have known each other for a very short period of time.

2- The Petitioner spent less than 7 days in the beneficiary's country for marriage.

3- The petitioner and the beneficiary have a big age difference.

4- The period between the date of marriage and the date of divorce was very short ( if any of them were married before ).

5- They do not speak a common language.

6- No family members attended the marriage ceremony.

7- The petitioner has applied before for a visa for an Ex.Spouse

8- The beneficiary had a visa case before with an Ex.Spouse

And there must be more indicators

Good Luck for all

My husband and I have over 20+ years of age difference and we know that it will be looked at. That was the first question I was asked during the interview. We were very well prepared and anticipate the question so I managed to looked at the interviewer's eyes and answered him with confidence.

We applied for our marriage license 3 months after my husband's previous divorce was finalised. I don't remember anyone really brought that up. But if you do have a bonafides marriage, you have nothing to worry!

[BigJohn 4]

My husband and I have over 20+ years of age difference and we know that it will be looked at. That was the first question I was asked during the interview. We were very well prepared and anticipate the question so I managed to looked at the interviewer's eyes and answered him with confidence.

We applied for our marriage license 3 months after my husband's previous divorce was finalised. I don't remember anyone really brought that up. But if you do have a bonafides marriage, you have nothing to worry!

What question did they ask you about the age difference? My wife and I are 18 1/2 years apart

[Davis1 1]

All of you here spend some time reading this and you will figure this out how this works....All of you out there Good Luck...!!!

Denials Of Family-Based Immigrant Visas At Consulates And DHS Petition Revocations

by Marc Ellis

This article focuses on the return of approved family-based IV petitions by consulates and how to represent clients in DHS revocation proceedings.

After a family-based immigrant visa petition has been approved by USCIS, some clients might think that the process is nearly complete. They often have a rude awakening when their loved ones interview for visas at a US Consulate. This article will suggest some ways to avoid having the petition returned by the consulate. It will also point out a misrepresentation trap for the unwary that exists in the Foreign Affairs Manual (FAM).

First, to illustrate my points, here is a hypothetical fact situation.

Example: Petitioner sponsors a K-1 beneficiary. K-1 petition is approved by a USCIS Service Center in the US. The Service Center forwards the case to the National Visa Center. The case is assigned a case number and sent to the appropriate consulate by the NVC. The beneficiary interviews at a US Consulate and her case is not approved at the time of the interview. Rather, the interviewing officer first refuses the visa application under INA 221(g), and requests more information about the relationship.

After the petitioner and beneficiary provide the information, the consular officer decides that the petition should be returned to USCIS for review with the recommendation that it be revoked because it’s the officer’s view that a reasonable person would believe the relationship exists solely or primarily to convey an immigration benefit. The case then is sent from the interviewing officer to a supervisor at the consulate who reviews the officer’s recommendation. This process can sometimes take months or years. The process is sometimes called “AR” or administrative review

These are the facts we’re using for the article. Now here is the law.

I. The Burden a Consular Officer Must Meet to Recommend Revocation of an Approved Family Petition

There is a heavy burden a consular officer must meet before he or she can recommend an DHS-approved petition be revoked. In employment-based IV cases, a consular officer has the authority to invalidate labor certifications, if so instructed by the Department of State after obtaining an advisory opinion from the Bureau of Consular Affairs.

In family cases though, the power of consulates is more limited. DHS has the sole statutory authority to approve or revoke a family-based immigrant visa petition. And a DHS approval is a prima facie presentation of eligibility under the Act.

A good restatement of the standards governing petition returns by consulate is found in a February 2004 cable R 251642Z FEB 04, excerpted below, sent to all consulates.

… “6. In adjudicating visa cases involving petitions, posts should bear in mind three important factors: A. the consular officer's role in the petition process is to determine if there is substantial evidence relevant to petition validity not previously considered by DHS, and not to merely readjudicate the petition; B. the memo supporting the petition return must clearly show the factual and concrete reasons for recommending revocation (observations made by the consular officer cannot be conclusive, speculative, equivocal or irrelevant) and; C. consular officers must provide to the applicant in writing as full an explanation as possible of the legal and factual basis for the visa denial and petition return. Post must maintain a copy of the returned petition, other evidence relevant to the case, and a copy of the written notification of the denial.

No readjudication of petitions

7. In general, an approved petition will be considered by consular officers as prima facie evidence that the requirements for classification - which are examined in the petition process - have been met. Where Congress has placed responsibility and authority with DHS to determine whether the requirements for status which are examined in the petition process have been met, consular officers do not have the authority to question the approval of petitions without specific evidence, generally unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status (see 9 FAM 41.53, Note 2, 41.54 Note 3.2-2, 41.55 Note 8, 41.56 Note 10, 41.57 Note 6, and 42.43 Note 2) due to fraud, changes in circumstances or clear error on the part of DHS in approving the petition. Conoffs should not assume that a petition should be revoked simply because they would have reached a different decision if adjudicating the petition. …”

What does that language mean? It means an approved petition is prima facie evidence of eligibility for an immigrant visa, unless a consular officer finds substantial evidence of ineligibility. More importantly, this evidence must have been unknown and unavailable to DHS at the time it approved the petition. That is the nearly the whole game for your client right there, in a few words.

PRACTICE TIP #1 - What the words generally unavailable to DHS at the time of petition approval should mean to skilled immigration practitioners, is that they should inform DHS in advance, at the time of filing the petition, of any potential red flags a consular officer might spot in the case. If DHS approves the petition anyway, a consulate is not supposed to deny a petition for that same reason.

What are some typical red flags that can cause a Consular Officer to suspect the merits of a relationship?

On the petitioner’s side, here is a brief and, by no means, complete list of reasons I have seen used to justify the return of family-based IV petitions and K petitions to DHS.

1. A very brief courtship followed by a plunge into matrimony;

2. A marriage ceremony arranged only a short time after petitioner arrives in the beneficiary’s country and they meet for the first time;

3. No common language;

4. Petitioner resides with family members of the beneficiary in the US;

5. Petitioner is employed by or has a business relationship with a relative of beneficiary;

6. Petitioner submits phone records that show he uses a residential phone number that is listed in the name of another person.

7. US divorce followed very quickly by an engagement to foreign beneficiary is often a red flag for consular officers.

8. There is little or no documentary evidence of the relationship prior to the actual engagement.

9. Long gaps of time between the petitioner & beneficiary being together in person.

10. Failure to disclose previous marriages;

11. Failure to disclose previous petitions filed on behalf of other beneficiaries.

I’ve only addressed the petitioner’s side of the relationship. There are other red flags that can afflict the beneficiary. But the point to remember is that consulates are not supposed to deny family-IV applications for reasons that were generally available to DHS at the time of approval, so tell DHS in advance of any potential red flags when you file the petition. That doesn’t guarantee consular officers won’t find other reasons unknown to DHS, but at least you will have served your client well by disarming the obvious landmines in his or her path. And you will make the consular officers work by forcing them to examine each and every fact asserted in the petition to see if DHS had knowledge of the information used to justify the recommendation for revocation.

II: K-1 Conundrum (Double or Nothing-Revocations)

K-1 and K-3 visas are odd fish. They are non-immigrant visas. Yet they e processed at consulates as IV’s . Not only that, K-1’s and K-3’s have definite life-spans. A K-1 for instance expires after four months. It normally takes more than four months from the time of DHS approval for a beneficiary to be interviewed at the consulate. Thus, by the time the beneficiary in our fact situation shows up at the window, the petition approval is no longer valid.

41.81 N6.2 Validity of a K-1 Petition (TL:VISA-581; 09-03-2003)

An approved K-1 visa petition is valid for a period of four months from the date of Department of Homeland Security (DHS) action and may be revalidated by the consular officer any number of times for additional periods of four months from the date of revalidation, provided the officer concludes that the petitioner and the beneficiary remain legally free to marry and continue to intend to marry each other within 90 days after the beneficiary's admission into the United States. However, the longer the period of time since the filing of the petition, the more the consular officer must be concerned about the intentions of the couple, particularly the intentions of the petitioner in the United States. If the officer is not convinced that the U.S. citizen petitioner continues to intend to marry the beneficiary, the petition should be returned to the approving office of DHS with an explanatory memorandum. [see 9 FAM 41.81 PN7 for revalidation procedure.)

So in our fact situation above, let us assume the approval of her sponsor’s petition has lapsed at the time of the interview. And it will not be revalidated unless and until the consular officer is persuaded on the merits of her visa application.

Reading the above passage, the FAM seems to place a built-in presumption against the intentions of the couple if the processing time for the K-1 petition has been delayed, even for reasons beyond their control. That presumption grows more persuasive, the longer the petition is delayed. 9 FAM 41.81 N6.2 also mandates that if the consular officer does not believe the couple intentions, at the interview, he or she must return the already expired petition approval with an explanation to DHS.

What is the point of returning an expired petition to a DHS Service Center? It’s hard to say. Perhaps it’s simply an information exchange between the two agencies or perhaps it’s professional courtesy. But this is a part of the process that poses great danger for petitioners. This is the place in the process where a 212(a)(6)©(i)[1] Misrepresentation trap has been set by the FAM

Our beneficiary at this point is in danger of having a finding of misrepresentation entered into her record, even if neither she nor the petitioner have actually misrepresented anything.

40.63 N10 Miscellaneous

40.63 N10.1 Misrepresentation in Family Relationship Petitions (TL:VISA-313; 08-27-2001)

Pursuant to 8 CFR 205, invalidation of a labor certification for fraud in accordance with the instructions of INS or the Department of State automatically revokes an employment-based immigrant visa petition. On the other hand, INS retains exclusive authority to disapprove or revoke family-relationship immigrant visa petitions. Thus, a misrepresentation with respect to entitlement to status under a family-relationship petition, e.g., document fraud, sham marriage or divorce, etc., cannot be deemed material as long as the petition is valid. Upon discovery of a misrepresentation, the consular officer must return the petition to the INS office having jurisdiction over the petitioner's place of residence [see 22 CFR 42.43.] If the petition is revoked, the materiality of the misrepresentation is established.

Note the last words of 9 FAM 40.63.N10: “If the petition is revoked, the materiality of the misrepresentation is established.

This will slip by a lot of people. But a beneficiary who fails to satisfy the consular officer’s interpretation of the “Reasonable Person” as set out in 9 FAM 42.43 N2.2(3) according to this part of the FAM may have made a misrepresentation with respect to entitlement of status .

This is a very aggressive position DOS has taken on Misrepresentation. Why? Go back to the February 2004 cable I cited earlier in the article. It is not supposed to be easy for consular officers to return approved family immigrant visa petitions. There is a very heavy burden placed on consular officers who wish to recommend revocation to DHS. It is apparently the Department of State’s position that no officer will return an approved petition without the required specific evidence of ineligibility of which DHS was not aware.

So when the consulate returns our petitioner’s approved K-1 petition to USCIS, it will put a 212(a)(6)©(1) marker, called a “P6C1” marker, or a “quasi-refusal” in the beneficiary’s record. If DHS decides at a later date to revoke that petition, a hard 212(a)6©(i) finding can kick in.

Lawyers – Be Careful Here!

Now in many cases where a K-1 has been delayed, refused or denied at a US Consulate, lawyers have advised clients to simply get married and file and I-130. That is not good advice, unless the attorney also advises the petitioner to pay close attention to the K-1 that has been sent back to the Service Center from the consulate.

If a Service Center begins a revocation proceeding for that K-1 petition, a petitioner’s failure to respond will mean that DHS will revoke the approval of the petition. When that happens, the 212(a)(6)©(i) that is pending in our beneficiary file, will become hard finding of Misrepresentation, under 9 FAM 40.63 N10.1 (above).

A Rude Surprise at the Second Consular Interview

Our love birds have followed their lawyer’s advice and forgotten about the K-1 petition. A NOID (Notice of Intent to Deny) letter comes in the mail and petitioner calls his lawyer. The lawyer says,

“Don’t worry about it. She’s your wife now. The K-1 petition is irrelevant.”

The lovebirds have taken the plunge and married. The petitioner has made another costly visit to the foreign country; bought another round trip airplane ticket, and maybe he has even sprung for a costly wedding ceremony.

An I-130 Petition for his new bride has been filed. And it is approved by the DHS Service Center. What will happen when his new wife appears at the US Consulate for her next interview?

Because the petitioner did not respond to the K-1 revocation notice, the beneficiary has a 212(a)(6)©(i) finding on her record. Even if the petition for her is approved, she is permanently barred from entering the US, unless she can obtain a waiver to that ground of inadmissibility.

What specific misrepresentation has this couple made? According to the section of the FAM cited above, it could be a generalized misrepresentation with respect to her entitlement to the K-1 status. She failed to satisfy the “Reasonable Person” Standard, and that has been boot-strapped more or less into a finding of Misrepresentation by the consulate.

If that seems counter-intuitive, if it seems strange to enter a finding of Misrepresentation under INA 212(a)(6)©(i), when no actual misrepresentations have been made, look at it from the perspective of DOS. There is a heavy burden placed upon consular officers before they can return a petition. They are not allowed to return a petition and recommend revocation for 221(g) reasons. Insufficiency of documentary evidence is not a reason for recommending that a DHS-approved family petition be revoked. Therefore, at least the way consulates views it, somebody must have made a misrepresentation somewhere with respect to the beneficiary’s entitlement to K-1 status.

What exactly was the misrepresentation? Nobody seems to know. DOS doesn’t give you a specific answer. The lawyer doesn’t know. And most importantly, the petitioner and beneficiary are clueless. They’re in sort of a Kafkaesque position. They’re accused of misrepresenting something. But nobody tells them exactly what they have misrepresented. This problem could have easily been avoided if the petitioner had simply responded to the NOID letter and argued the merits even though the couple had married.

PRACTICE TIP #2 - Respond to everything! Even if it doesn’t make sense, even if it’s no longer relevant, respond to it!

Now here is where it gets tricky. DHS probably does not even know about the 212(a)(6)©(i) finding that has been entered into the beneficiary’s record by DOS.

The approval for the K-1 petition has long since expired by the time the consulate has sent it back.

In my experience, different USCIS Service Centers handle K-1 revocations in different ways. I have seen Vermont and Nebraska notify the petitioner at once and give him or her 60 days to submit rebuttal evidence. I have seen California and Texas give a petitioner only 30 days to respond.

But I have also seen USCIS Service Centers not even use the revocation process for returned K-1 petitions. I have seen I-797 notices mailed to petitioners informing them that the petition was returned from the Consulate and that the approval for the petition has expired. California and Texas Service Centers seem to have at least a quasi-policy of not sending out NOID letters unless the petitioner requests one.

What about that Misrepresentation finding that is hanging in our beneficiary’s record? We know that it kicks in upon revocation. So is the petition approval revoked when a Service Center simply notifies a petitioner that the approval has lapsed, without giving her or him a chance to respond? No. Consular Immigrant Visa Chiefs are supposed to make sure that a revocation has in fact taken place before the 212(a)(6)©(i) marker becomes a finding.

What if Petitioner simply withdraws the petition after the consulate sends it back?

The regulations are rather unformed on this question. The aggressive stance DOS has taken toward Misrepresentation would lead me to err on the side of caution. If the petitioner has a chance to respond to an NOIR letter, this aggressive position might lead to a 212(a)(6)© finding entered on the beneficiary record.

Well, what if the K-1 petition is withdrawn after the interview, but before the supervisory consular officer signs off on it?

The FAM uses this language “Upon discovery of a misrepresentation, the consular officer must return the petition to the INS office having jurisdiction over the petitioner's place of residence [see 22 CFR 42.43.] If the petition is revoked, the materiality of the misrepresentation is established.”

So I would err on the side of caution there as well.

What if the NOID letter is sent to the petitioner, but the Service Center is unable to locate him? There seems to be some discretion granted to IV Chiefs at consulates. Some consulates will consider this a revocation and allow the Misrepresentation finding to kick in. Others won’t.

Now what?

So in our fact situation, the beneficiary goes to her second interview. The consular officer is satisfied with the merits of the case. But there is a finding of Misrepresentation in her record. He hands her a 221(g) refusal sheet and an I-601 waiver application.

Our lovebirds have to apply to DHS for a 212(i) waiver to the grounds of inadmissibility.

Here too, there is some discretion at the consulate. Not all Immigrant Visa Chiefs seem to do it this way. Some will take the time, investigate the case and take the view that the grounds of inadmissibility for the K-1 have been overcome with the spousal petition. Most will simply allow the waiver process to take its course.

Recommendations

A. Lawyers

1. As I noted earlier, lawyers must inform DHS in advance, of any potential red flags which may arise at the consulate interview. That means we must conduct more thorough interviews of our I-130 and K-1 clients.

2. Whenever an NOID or NOIR letter comes in the mail, respond to it!

B. Department of State

1. Consulates should recognize that simply because an officer discovers “ substantial evidence relevant to petition validity not previously considered by DHS”, it does not necessarily follow that the beneficiary or petitioner have willfully misrepresented any material facts. P6C markers should not be automatically entered into a case simply because a petition has been returned with the recommendation that its approval be revoked.

2. Failing #1, Petitioners and Beneficiaries need to be advised that the officer believes they have made a willful material misrepresentation of the beneficiary’s eligibility for the visa. They should also be advised of the consequences of 212(a)(6)©(i) on the return sheet given to the beneficiary.

C. DHS/USCIS Service Centers:

1. Service Centers need to be aware of the P6C entries that consulates are making and provide every K-1 petitioner an opportunity to rebut the consulate’s findings on the merits.

--------------------------------------------------------------------------------

[1] © Misrepresentation. 212(a)(6)©(i) In general. ny alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

212(a)(6)©

[Davis1 1]

Let me know guys if this is not sufficient and you need more...lolz....!!!

[Samoray 165]

Let me know guys if this is not sufficient and you need more...lolz....!!!

This is certainly Useful, Thank you for posting it

And about more, the answer is yes, provide more, i want to know more if there is more lol

[Davis1 1]

This is certainly Useful, Thank you for posting it

And about more, the answer is yes, provide more, i want to know more if there is more lol

There You go Buddy....!!!!

P6C - Department of State's War on Love, Logic and Law

by Marc Ellis

"It would be so nice, if something made sense for a change,"

(Lewis Carroll, Alice In Wonderland, 1865)

The Caveat:

In my experience, line consular officers & section chiefs tend to be well-educated and conscientious. They'd do a good job if they were trained properly by their agency. And they get lied to sometimes by visa applicants. This article is not aimed at them.

The Audience:

This article is aimed at the people who are supposed to be training them, in the Visa Office, Washington, D.C. It is aimed at US Citizen Petitioners who have had their futures damaged or jeopardized by the procedure I'm about to describe. It's aimed at immigration lawyers who may not know about this. And finally, it is directed at the agency that is legally empowered to manage the visa process [1], the Department of Homeland Security. I truly hope USCIS adjudicators and managers will read this, because the ad hoc boot-strapping by DOS I'm about to describe, might surprise them.

The Scenario:

A beneficiary goes to a consular interview and is handed an I-601 for her trouble. She is told she is inadmissible because she had made a 'material misrepresentation' on a previous visa application.

She's confused. What exactly did she misrepresent? The officer doesn't know. The officer just knows a previous petition for her was revoked. Her husband goes into the consulate and inquires. He's given the same answer. His wife had made a material misrepresentation on a previous application. But the officer doesn't know exactly what it was. All the officer can say is that a previous petition for his wife had been revoked. And his wife is now inadmissible for life without a waiver.

The Logic:

The Department of State has for many years, taken the position that applying for a benefit, being found ineligible for that benefit, and having USCIS revoke the petition for that benefit, somehow constitutes a material misrepresentation by the beneficiary. It's really that simple.

Ineligibility + revocation = inadmissibility. That is the logic DOS is using here.

That sounds wacky to people trained in immigration law. But that is the Department of State's position. Mere ineligibility for a visa, is magically transformed by consulates every day, into hard findings of inadmissibility under INA 212(a)(6)©(i).

Not Prophecy - Just Common Sense:

I predicted in 2007 that it was only a matter of time before DOS would be a defendant in major class action litigation over this and other issues.[2] Now, the inevitable has happened[3]. One of the remedies a class of aggrieved petitioners is seeking is an injunction against DOS, from placing p6c1 markers into visa applicants' files. The suit[4] asks the court to:

(i)"…issue a permanent injunction barring the State Department from placing a marker, called a "P6C1" marker, or "quasi-refusal" in a visa beneficiary's record, and deeming the DHS/USCIS revocation of the petition as automatically establishing the permanent misrepresentation bar to any future immigration possibility…"

P6C's

I described this weird phenomenon, in an article entitled Consular Denials of Family-Based Immigrant Visas, in 2006. The P6c1 is administrative short-hand for a pending finding of INA 212(a)(6)©(i)[5] material misrepresentation by a visa applicant. The justification DOS uses is found at 9 FAM 40.63 note 10.1. I'll quote it here, and I'll add emphasis to the deadly part.

9 FAM 40.63 N10.1 Misrepresentation in Family Relationship Petitions (CT:VISA-1030; 09-22-2008)

Pursuant to 8 CFR 205, invalidation of a labor certification for fraud in accordance with the instructions of USCIS or the Department of State automatically revokes an employment based immigrant visa (IV) petition. On the other hand, USCIS retains exclusive authority to disapprove or revoke family-relationship IV petitions. Thus, a misrepresentation with respect to entitlement to status under a family relationship petition, e.g., document fraud, sham marriage or divorce, etc., cannot be deemed material as long as the petition is valid. Upon discovery of a misrepresentation, you must return the petition to the appropriate USCIS office. If the petition is revoked, the materiality of the misrepresentation is established.

Now the way this is written, it sounds reasonable. If an applicant makes a material misrepresentation during a visa interview, the materiality of that falsehood is not established until USCIS rules on it.

But that's not how this rule is being interpreted. The way it's applied, as we shall see, is that mere ineligibility for a visa, miraculously transforms itself into something else, a material misrepresentation by the beneficiary, with respect to entitlement of status.

Get it? An applicant has presented himself or herself as eligible. A consular officer has found the applicant ineligible and voila! The mere fact of ineligibility becomes a material misrepresentation.

This happens even if the applicant has not actually misrepresented anything. Over the years, this strange procedure has caused a lot of damage to US Citizens and their loved ones. It has resulted in hundreds, if not thousands of 212(a)(6)©(i) findings made against applicants who had never misrepresented anything.

Not only is this interpretation strange. It is incorrect as a matter of law. As I was researching this article, a well-known legal colleague referred me to the case of Matter of Healey and Goodchild, 17 I&N 22, (1979).

In that case, the Board held that a finding of excludability (inadmissibility), should be "subject to close scrutiny, particularly where the alleged fraud or misrepresentation, involves a disputed issue as to the alien's subjective intent."[6]

How can anyone argue there is 'close scrutiny' of these manufactured p6c misrepresentation findings? Remember the scenario here. Consulates can't even tell petitioners exactly what the misrepresentation was.

In my view, the mistake DOS is making here is very simple. It is interpreting 9 FAM 40.63 note 10.1 as a separate, new ground of inadmissibility. It considers this note to be substantive guidance, having the same effect as a Board of Immigration Appeals decision. And that's the wrong way to read it. There is no BIA decision which holds that mere ineligibility for a benefit is the same thing as a material misrepresentation.

Perhaps this note should be read as procedural guidance. When viewed that way, it makes more sense. A finding of material misrepresentation does not become final until USCIS revokes the petition. But the mere revocation of a petition, does not create a material misrepresentation. But that's what is happening every day, in every busy Immigrant Visa Section in US consulates around the world.

How it Works:

Consulates place a p6c1 marker in a beneficiary's file, every time a family visa is refused on the merits. It's placed there regardless of whether any misrepresentations were actually made by the beneficiary or not. All that is necessary is for the visa to be refused.

Next, the consulate writes a memorandum justifying its view that the beneficiary is not eligible for the visa. The consular memorandum usually contains more than one reason. In my experience, in the vast majority of cases, none of the reasons remotely resemble a material misrepresentation by the applicant. This is true, even using DOS's own standards, which I will quote later.

The petition file, containing the consular memorandum, is then sent back to USCIS. And USCIS eventually sends the petitioner something called a Notice of Intention to Revoke (NOIR). It's written by USCIS. But it usually quotes the reasons written in the consular memorandum.

If the petitioner fails to respond, or does not successfully rebut the NOIR, the petition's approval is revoked. The reasons listed by the consulate become true, as a matter of law.

OK. All of that makes sense so far. But remember, most of the time, none of these reasons amount to a material misrepresentation under the law.

Now something else happens. And it is far more deadly and far more insidious. That p6c1 marker now becomes a hard finding of material misrepresentation against the beneficiary.

Remember the scenario here. The consulate doesn't know what the misrepresentation was. All it knows is that USCIS revoked a petition, based on what it wrote in a memorandum.

Why do petitions get revoked?

There are two kinds of petition revocation[7], automatic revocation, and revocation on notice. Most of the time, petitioners simply don't respond. The notice may have come because a consulate sent back a fiancée petition, while the petitioner has since gotten married to the beneficiary and filed a new petition. Or perhaps, the NOIR never arrived in the mail. Quite often petitioners are given bad legal advice and told they don't need to respond. They're told that filing a new petition solves their problem.

This issue of why petitions are revoked is really a red herring here. Remember the scenario I gave you. Most of these NOIR's don't contain any allegations of material misrepresentations anyway. So what difference would it make why the petition was revoked, if there was no material misrepresentation alleged?

What's In A Consular Return Memorandum?

What follows is a pretty common list of consular allegations quoted in NOIR's that I've seen. I'm hoping there are immigration lawyers & USCIS adjudicators reading this article. I invite them to find a single material misrepresentation in any of these consular allegations

Photographs submitted as evidence of the relationship indicate that the petitioner and the beneficiary have spent only two or three days together.

The beneficiary and the petitioner did not have an engagement ceremony. This contradicts local social and cultural norms in which many family members and friends are invited to engagement celebrations numbering in the hundreds of guest for even families of modest means.

The beneficiary is unaware of the basic facts of the petitioner's occupational background. She does not know the name of the petitioner's immediate supervisor. The beneficiary is unaware of the basic facts of the petitioner's occupational background. She does not know the name of any of petitioner's co-workers.

The beneficiary is unaware of the petitioner's day-to-day social contacts.

"The consulate official noted the petitioner is nineteen years older than the beneficiary." There appears to be a communication issue between the couple. The beneficiary submitted letters as evidence of communications. The consulate officer reported an individual signed the letters as ______. The beneficiary claimed that "______" is the petitioner's nickname."

The consulate reported that the beneficiary provided insufficient evidence of a bona fide spousal relationship. Written correspondence submitted as evidence of communication consisted of only one letter.

All of beneficiary's phone calls to the United States were made to an unlisted cell phone.

During the interview, beneficiary stated that she was introduced to the petitioner over the phone by her cousin. The petitioner and her cousin are alleged to be co-workers.

During her consular interview, the beneficiary was unable to answer basic questions about petitioner's family and failed to submit sufficient verifiable evidence to support an ongoing and bona fide spousal relationship with petitioner.

During her consular interview, the beneficiary failed to submit sufficient verifiable evidence to support an ongoing and bona fide spousal relationship with petitioner.

The beneficiary stated that the petitioner proposed in March, 2007, immediately after stepping off the airplane during the petitioner's first visit. The petitioner and the beneficiary were married 19 days later."

The beneficiary claimed that he talked to the petitioner every few days on the phone, but he did not know what the petitioner did last week-end.

The beneficiary divorced her ex-spouse within one year of marrying the petitioner.

The petitioner and beneficiary got married during the petitioner's first visit. The duration of petitioner's entire trip was brief.

The petitioner and the beneficiary do not share a common language.

Where is there a material misrepresentation in any of those allegations? I submit to you, there are none. And yet, if USCIS had revoked any of those petition approvals, a hard finding of 212(a)(6)©(i) inadmissibility would have been made by Department of State against the beneficiaries, in every one of these cases. And what exactly did they misrepresent? Not one damned thing.

What's a Material Misrepresentation Anyway? (Part I)

Let's look at Department of State's own criteria, in the notes found at 9 FAM 40.63.

[8]In order to find an alien inadmissible under INA 212(a)(6)©(i), it must be determined that:

(1) There has been a misrepresentation made by the applicant (see 9 FAM 40.63 N4);

(2) The misrepresentation was willfully made (see 9 FAM 40.63 N5); and

(3) The fact misrepresented is material (see 9 FAM 40.63 N6); or…"

Note 3 deals with fraud, which involves a more difficult legal standard than material misrepresentation. And that's important, because if you get down to what Graham Greene called the heart of the matter[9], DOS may be manufacturing these ad hoc misrepresentation findings, because it knows it is too difficult to meet the legal standard for fraud.

From Note 4 (emphasis added to the deadly part):

"…material misrepresentation" includes simply a false misrepresentation, willfully misrepresented material fact, which is relevant to the alien's visa entitlement. It is not necessary that an "intent to deceive" be established by proof, or that the officer believes and acts upon the false representation. (See Matter of S and B-C, 9 I & N 436, 448-449 (A.G. 1961) and Matter of Kai Hing Hui, 15 I & N 288 (1975).

Now think about that list of allegations I gave you. Can you see what is happening now? DOS has arrived at a way to establish a material misrepresentation, without any need to prove it really happened. All it needs is to do, is sling a bunch of allegations and hope that some of them will stick well enough for a petition to be revoked.

Why? The question "why" is complicated. Why do the visa gurus of Foggy Bottom[10] insist on insulting US Citizen Petitioners and damaging their families, without good cause? I can't answer that. But it's been like that for a long time.

But I can answer the question why DOS prefers to make findings of material misrepresentations rather than fraud findings. Fraud requires proof! And in DOS's view, material misrepresentations don't.

And that's the insidious part. US Citizen Petitioners would actually be better off, if consular officers were making fraud findings, instead of these manufactured p6c findings. Why? At least, with a fraud finding under INA 204©[11], the petitioner can have his case reviewed again in a subsequent petition. See Matter of Tawfik[12].

Tawfik stands for the proposition that a finding of marriage fraud in a subsequent petition cannot be based merely on reasonable inferences from the previous record. The evidence proving marriage fraud must be 'substantial and probative'.

As we can see from my list, that's not the case with these p6c1 markers. Consulates can allege almost anything and if the petition is revoked - the consulate wins. And the US Citizen's family loses. There is no re-examination triggered by the filing of a new petition. The inadmissibility finding is still there. And the only way around it is a discretionary waiver.

What is a Material Misrepresentation Anyway? Part II:

Let's go down the list.

[13]"…a misrepresentation is an assertion or manifestation not in accordance with the facts."

Looking at the list of consular allegations I provided, which of those meets this criterion?

"Willfully": In order to find the element of willfulness, it must be determined that the alien was fully aware of the nature of the information sought and knowingly, intentionally, and deliberately made an untrue statement."

Once again, look at the consular list of reasons I provided, which of those is allegations by a consulate is a 'willful untruth'?

What is "material"?

[14](1) The alien is inadmissible on the true facts; or

(2) The misrepresentation tends to shut off a line of inquiry which is relevant to the alien's eligibility and which might well have resulted in a proper determination that he or she be inadmissible." (Matter of S- and B-C, 9 I & N 436, at 447.)

Which of those allegations I quoted would make a beneficiary inadmissible on the facts? Which would shut off a line of inquiry by a consular officer?

What's the Solution?

The partial solution is for Department of State to halt the practice of spinning these 212(a)(6)©(i) findings out of p6c markers, merely because a petition has been revoked. This has caused untold damage to hundreds, if not thousands of American families. And it is without legal justification.

The long-term solution is for Department of Homeland Security to at long last, exercise its statutory prerogative, and train consular officers and their section chiefs in nuts and bolts immigration law.

At the very least, consular officers need to have the same level of proficiency in immigration law as rookie DAO's. And they don't. In fact, I haven't met a Section Chief yet, who could function for a week as a District Adjudication Officer in a USCIS office.

"But the issues are different," you might say. Yes. But the law is the same. The language of the statutes and the case law consulates are required to follow are the same. It's the same 8 CFR. The only thing that is different is the nature of training given to consular officers and USCIS adjudicators.

Whatever complaints people may have about USCIS, I have never heard an officer argue that ineligibility is the same thing as a material misrepresentation. That would be laughable, if the consequences weren't so tragic.

What are the Consequences?

The Department of State's own guidance at 9 FAM 40.63 note 1.2 states the consequences of a material misrepresentation finding with clarity and eloquence.

"When considering whether to impose such a dire penalty, keep in mind the words quoted by the Attorney General in his landmark opinion on this matter. (The Matter of S- and B-C, 9 I & N Dec. 436, at 447): "Shutting off the opportunity to come to the United States actually is a crushing deprivation to many prospective immigrants. Very often it destroys the hopes and aspirations of a lifetime, and it frequently operates not only against the individual immediately but also bears heavily upon his family in and out of the United States."

How can that language be reconciled with the process I've described here?

It's not the fault of consular officers or even the section chiefs. The Department of State employees are truly elite. I don't disparage that at all. But too many of them are not properly trained in the laws they are supposed to administer. This weird interpretation of the law would not have happened if they were. And the agency that is ultimately responsible for training them is the Department of Homeland Security[15]. I hope that if DHS were to learn what DOS was doing here, it would put a stop to it. After all, it's the agency that winds up getting sued when consulates misapply the laws. It's the agency that has to adjudicate waivers on all these meritless 212(a)(6)©(i) findings by consulates.

So the p6c1 issue is just a symptom of a much larger problem. And it comes down to training. I have no doubt, that if the line officers in consulates were trained by DHS, they would do a good job. And US citizens and their loved ones would be better off.

A Misrepresentation of a Misrepresentation:

Hopping back to Alice and the rabbit hole where we began, is it going too far to say, that the Department of State's p6c1 procedure for creating material misrepresentation findings without proof, is itself a misrepresentation?

It's a misrepresentation made to the Department of Homeland Security, the agency that has to adjudicate all the I-601 waivers submitted by baffled and frightened US families, who never do learn what they misrepresented. And worse, it's a misrepresentation and a profound insult to US Citizen petitioners. Nobody has lied, and yet they stand accused of lying, by the Department of State.

If US Citizens or their loved ones, are accused by their government of lying, at the very least, that accuser ought to be required to point out exactly what the lie was. But consulates can't do that. And most of the time, there is no lie in the record and there never was. There is only a computer entry showing a petition has been revoked. That's all.

How does the integrity of the system benefit from this? US Citizen petitioners and their families certainly don't benefit. USCIS doesn't benefit. After all, DOS is increasing its workload and bogging the agency down in needless litigation.

So who exactly does benefit? I don't know. But I know the practice continues today. Hundreds of beneficiaries are still being tagged with p6c markers. And most of them have never lied about anything.

How do you make sense of that? I can't. But it reminds me of something Nikolai Gogol wrote a long time ago,

"Perfect nonsense goes on in the world. Sometimes there is no plausibility at all"[16]

Maybe it's time for DHS to put a stop to this nonsense.

--------------------------------------------------------------------------------

FOOTNOTES

1 PUBLIC LAW 107-296-NOV. 25, 2002, Homeland Security Act 2002 Sections 402 (6 USC 202, 116 Stat.2178 (4) & Sec. 428. (6 USC 236; 116 Stat 2187)

2 Clash of the Titan Bureaucracies - the Sequel

3 Tran versus Napolitano, D.Ct. Portland, CV10-724.

4 Tran versus Napolitano, pp 3-4.

5 INA § 212(a)(6)©(i)" Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.")

6 Healy id., at (6)

7 8 CFR 205.1 & 205.2

8 Note 2 9 FAM 40.63

9 Graham Greene novel"The Heart of the Matter" (1948)

10 Common name given to the Department of State Grounds in Washington, DC.

11 8 USC 1154©, INA, 204©, "Limitation on orphan petitions approved for a single petitioner; prohibition against approval in cases of marriages entered into in order to evade immigration laws; restriction on future entry of aliens involved with marriage fraud Notwithstanding the provisions of subsection (b) of this section no petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws, or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.

[David Allen 3]

I have a very hard time believing that lists like this are at all useful.

The bottom line is, if you're an honest real couple who's marrying in good faith, you may have to explain the one or more things on this list that you match, but you'll more than likely have made up for it with other evidence that proves your marriage is legit. If someone isn't marrying in good faith, then you're just giving them clues on how to game the system.

When I met my fiancee she spoke very little English, and I spoke very little Thai. Her English, improved, (as did my Thai) but when I brought her to the US her English still wasn't that great. In the time between her arrival and our interview her english improved greatly, but it's still a struggle for her. We were approved for our 2 year Green card with out too much difficulty. She's enrolled in English classes now, and by the time we go for the next AOS, her english will be very good.

Lists like this might work as a VERY general guideline, but more than likely they're just something that people will needlesly obsess over.

If you're marrying in good faith then the more evidence of a real relationship you can provide, the better off you're going to be regardless of lists like this.

Hello

After reading many of the scenarios that people go through when applying for a spouse visa, i have summed some of the factors that make the USCIS suspicious about the visa case .

1- The Petitioner and the beneficiary have known each other for a very short period of time.

2- The Petitioner spent less than 7 days in the beneficiary's country for marriage.

3- The petitioner and the beneficiary have a big age difference.

4- The period between the date of marriage and the date of divorce was very short ( if any of them were married before ).

5- They do not speak a common language.

6- No family members attended the marriage ceremony.

7- The petitioner has applied before for a visa for an Ex.Spouse

8- The beneficiary had a visa case before with an Ex.Spouse

And there must be more indicators

Good Luck for all

Edited August 15, 2010 by David Allen