Denied after 2 years of waiting

[Simeon 25]

VJers, I need some advice.

My wife went in for her CR-1 interview on 1/26/2015 and was denied a visa based on her past China Communist Party membership. This was entirely unexpected because she was already denied under a K-1 visa, and the Guangzhou Consulate told her to get married and reapply for a CR-1, which we did.

The Consulate said they would transfer our case back to Washington for a possible approval/denial/waiver. The interviewing officer said the typical time is 2 months. An inquiry to the Consulate as to whether or not they have shipped out my application to Washington was met with the "just wait" e-mail. At this point, I don't know what to expect, as I've never heard of any case like ours... having been denied twice on two different visas with over 5 years of waiting. For the K-1, we were in AP for over 24 months. I don't want her to wait that long again. What should I do? Please weigh in with your advice, I'm at a loss here.

[Janelle2002 3,865]

Did they say if she was eligible for a waiver or not?

You can also try an attorney and see if they can ask the State Department for an Advisory Opinion.

Edited March 4, 2015 by Janelle2002

[Darnell 8,478]

i am making a quickie note here, I'll come back later tonight with some other stuff from gogo [yes, a real membername here]

[Simeon 25]

The Consulate said that was something Washington would need to approve, but it seems like they should have the power to adjudicate this... My attorney recommended that we wait the two months for their opinion. So, I should ask for an AO before the 2 months, you're saying?

Did they say if she was eligible for a waiver or not?

You can also try an attorney and see if they can ask the State Department for an Advisory Opinion.

[Janelle2002 3,865]

The Consulate said that was something Washington would need to approve, but it seems like they should have the power to adjudicate this... My attorney recommended that we wait the two months for their opinion. So, I should ask for an AO before the 2 months, you're saying?

Okay. It sounds like the Consulate may be asking for an Advisory Opinion from the State Department without your attorney requesting it. You should get your attorney to confirm this.

I always look into these matters so I can be prepared for any next steps I may need to take. This is a lot to read, but you should read this.

http://www.mhb.com/web_documents/the_lawyer_s_role_in_consular_visa_refusals_4-2008__2_.pdf

[Simeon 25]

Thanks for that link. I will read it. It does seem very old, though. Do you think some of this information may be out of date?

Okay. It sounds like the Consulate may be asking for an Advisory Opinion from the State Department without your attorney requesting it. You should get your attorney to confirm this.

I always look into these matters so I can be prepared for any next steps I may need to take. This is a lot to read, but you should read this.

http://www.mhb.com/web_documents/the_lawyer_s_role_in_consular_visa_refusals_4-2008__2_.pdf

[Janelle2002 3,865]

Thanks for that link. I will read it. It does seem very old, though. Do you think some of this information may be out of date?

I'm not sure if it is out dated or not, but other research on the internet has led me to believe a lot of it is still quite relevant.

Advisory Opinion: An opinion regarding a point of law from the Office of Visa Services in the Department of State, Washington, D.C. This opinion would be issued in response to an inquiry from a U.S. Embassy or Consulate regarding the interpretation of immigration law, or in response to an inquiry from an applicant or his/her legal representative regarding the legal correctness of the applicant’s visa refusal.

http://travel.state.gov/content/visas/english/general/glossary.html

http://www.state.gov/documents/organization/87507.pdf

http://www.state.gov/documents/organization/86932.pdf

[Simeon 25]

I think I understand. Since she was denied under INA 221(g), she is not eligible for a waiver by the Consulate (9 FAM 40.6 N4.2), but the DHS can waive it. That makes sense, since she was told that DHS would be making the decision. She was denied under INA212(A)(3)(d), but the FAM only says NIV cases require an initial waiver recommendation. So, I should just wait for the AO/waiver from DHS? Does that mean I need to apply for a waiver, or the DHS will just waive the ineligibility for me?

9 FAM 40.6 N4.2 Waiving an Immigrant Visa (IV) or

Nonimmigrant Visa (NIV) Ina

dmissibility

(CT:VISA

2010)

There is no waiver available for refusals under INA 214(b) and INA 221(g). DHS

has the authority to waive most IV and NIV ineligibilities. INA 212(d)(3)(A)

waivers in NIV cases require an initial waiver recommend

ation from you or the

Department. (See 9 FAM 40.301, for information on NIV waivers under INA

212(d)(3)(A) (8 U.S.C. 1182(d)(3)(A)), and 9 FAM 40.6 Exhibit I for IV and NIV

waivers.

I'm not sure if it is out dated or not, but other research on the internet has led me to believe a lot of it is still quite relevant.

Advisory Opinion: An opinion regarding a point of law from the Office of Visa Services in the Department of State, Washington, D.C. This opinion would be issued in response to an inquiry from a U.S. Embassy or Consulate regarding the interpretation of immigration law, or in response to an inquiry from an applicant or his/her legal representative regarding the legal correctness of the applicant’s visa refusal.

http://travel.state.gov/content/visas/english/general/glossary.html

http://www.state.gov/documents/organization/87507.pdf

http://www.state.gov/documents/organization/86932.pdf

[Janelle2002 3,865]

I think I understand. Since she was denied under INA 221(g), she is not eligible for a waiver by the Consulate (9 FAM 40.6 N4.2), but the DHS can waive it. That makes sense, since she was told that DHS would be making the decision. She was denied under INA212(A)(3)(d), but the FAM only says NIV cases require an initial waiver recommendation. So, I should just wait for the AO/waiver from DHS? Does that mean I need to apply for a waiver, or the DHS will just waive the ineligibility for me?

9 FAM 40.6 N4.2 Waiving an Immigrant Visa (IV) or

Nonimmigrant Visa (NIV) Ina

dmissibility

(CT:VISA

2010)

There is no waiver available for refusals under INA 214(b) and INA 221(g). DHS

has the authority to waive most IV and NIV ineligibilities. INA 212(d)(3)(A)

waivers in NIV cases require an initial waiver recommend

ation from you or the

Department. (See 9 FAM 40.301, for information on NIV waivers under INA

212(d)(3)(A) (8 U.S.C. 1182(d)(3)(A)), and 9 FAM 40.6 Exhibit I for IV and NIV

waivers.

I honestly can't answer this because I have not had contact with any one who has gone through this process. However, I read this attorney's blog and it appears the Visa Office will inform the applicants or the consulate on whether or not the applicants can move forward their their process.

http://blog.cyrusmehta.com/2012/01/state-departments-visa-office-takes.html

We therefore asked that the Visa Office provide such an advisory opinion under the authority laid out in the FAM, and advise the consular officer that other concrete steps taken to obtain LPR status, such as the payment of immigrant visa fees that occurred here, may be considered.

In less than two weeks from seeking the advisory opinion just prior to the New Year (2012), we received the following communication from the Visa Office:

Thank you for your inquiry to LegalNet. Since the derivative applicants submitted their IV fee within one year of visa availability, the Consular office will consider CSPA's sought to acquire requirement satisfied. The visa unit in [redacted] will contact the applicants to resume processing.

[Ryan H 3,790]

CCP membership automatically means a Security Advisory Opinion will be needed before a visa can be issued.

What they will be looking for is the extent of how involved she is (i.e. joined only because it was a requirement for certain jobs or trying vs. trying to climb the ladder to influential positions).

[CowBoE 429]

Pretty awful. Sorry to hear that.

I've seen other previous CCP members get hassled,

but I thought I recall them eventually getting approved.

Hang on...I'm sure some of those that went through this CCP denial

will chime in.

[Merrytooth 5,748]

This article may help you?

http://lawandborder.com/communist-party-members-ineligible-green-card/

[bpierce 24]

Sounds like our case, Denied K-1 ,Got Married and embassy put us in A.P.(Been in A.P. now for 10 Months).We had to fill out the questionnaire and send in a Resume about her past CCP membership. Our Lawyer said they send that to Washington for a S.A.O.,But the Embassy has not given us a Decision yet.

every time we email them they tell us to wait....Did they ask you to fill out the Questionnaire too?

[Darnell 8,478]

i am making a quickie note here, I'll come back later tonight with some other stuff from gogo [yes, a real membername here]

some contact info:

http://www.visajourney.com/forums/topic/221091-uscis-contacts/?p=3365596#entry3365596

some of it may be outdated. best reviewed on a pc, not a handphone.

CCP membership needs extra time, so it's important you sit in for the long haul. could be 2 months, could be 10 months, could be a year.

[CowBoE 429]

You may have seen some of this, but just in case...

http://lawandborder.com/communist-party-members-ineligible-green-card/

http://www.nolo.com/legal-encyclopedia/how-communist-totalitarian-party-membership-affects-eligibility-naturalized-us-citizenshi

http://www.visajourney.com/forums/topic/324976-ever-in-any-way-associated-with-the-communist-party/

http://fianceevisa.chinesefiancee.com/category/i-601-waivers/