I have SOME news. My congressman's office forwarded the response from the Embassy today.

"The petition is being returned to U.S. Citizenship and Immigration Services (USCIS) at the Department of Homeland Security (DHS) under Section 212(a)(5)(A) of the Immigration and Nationality Act. The decision of the consular officer is not final, however. A decision to revoke a petition, or to return it to us for continued processing, rests with DHS. If the petitioner wishes to pursue his application for a fiancé visa, he should contact his local USCIS office for further consideration."

I looked up Section 212(a)5(A) and it reads as follows:


Section 212(a) of the Immigration and Nationality Act reads:

http://travel.state.gov/visa/frvi/ineligib...ities_1364.html

(a) Classes of Aliens Ineligible for Visas or Admission.-Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

5) Labor certification and qualifications for certain immigrants.-

(A) Labor certification.-

(i) In general.-Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that-

(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and

(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.

(ii) Certain aliens subject to special rule.-For purposes of clause (i)(I), an alien described in this clause is an alien who-

(I) is a member of the teaching profession, or

(II) has exceptional ability in the sciences or the arts.


I'm sending a reply to the Senator to alert him to this EXPLANATION from the embassy and the fact that my husband is applying for an Immigrant Visa, not a LABOR CERTIFICATION. Don't know how much good it will do, but there is definitely an error here.

Wish me Luck. At least the ball is rolling. Makes me feel a little better.

Dre

I can't believe they are returning the petition under 212(a)(5)(A)...this makes no sense for a I-130 petition for alien relative.

Did your husband send you a copy of the 221g or any paper he was issued at the end of his interview? Exactly what does that paper say?

The law specifically requires the DOS to provide the applicant in writing that their application and/or the petition is being returned INCLUDING under what statute it is being returned even if they are hiding the actual reason why by not stating it directly in the paper given to the applicant like what the DOS in Morocco does.

I would be interested to know what this paper says, whether it actually states 212(a)(5)(A) or 221g etc.

If your husband did not send this paper to you, have him scan it and email it to you immediately so you can read it for your own eyes. You need a copy of it anyway for your files. I would also contact that lawyer I sent you, he can help.

Good luck with this. It is at least some progress.

~Kiyah~

Kiya, I was with him at his last inteview and the consular officer gave me a form with a bunch of statutes and circled the same one she referenced to the congressioanl aid. I looked it up yesterday and its pertaining to a Labor Certificate. I think this merits a call to a lawyer. I'll definityly get in touch with EI by tomorrow and get his take on it. By the way, I forgot to thank you for his contact info. I'll keep you posted.

Dre

Hey Dre. What ever happened with your petition return for 221(a) instead of 221(g)? Any news or updates on that?

I have again just read this entire post again and I'm gld that I did. It just reminded me of a couple more thigs I need to do while I am here in Morocco.

I have the paperwork for the tax amendment I will do when I get home. My sister mentioned something about a 1040X, but I need to talk to her again because Im not sure if I need that along with the 1040 or the 1040A, or do I need either of those forms at all? As far as Abdel having to sign the actual tax return, a fax is sufficient, yes? I'll probably do my name change first, though, and then amend the taxes.

We went to Citigroup here in Morocco and we cant open an account there, I think they said its not for individual accounts like the ones in the states. So we went to BMCE, and I can open one there. We can't have a joint account there because we have different nationalities, and he can only withdraw dirhams from his account and I would be able to withdraw both dollars and dirhams while here in morocco. So I will just transfer money from my account to that one and he can make deposits as well, into it. She said I woud have to live here for 5 years for us to be able to share an account . So Im going in there with my passport and $50 and open my own account.

We were also concerned with the fact that if I put money into his account, will it look like he is using me for money. Let me clarify something.... I have never sent him money. He will not let me. Even while I am here now, he doesnt want me to spend my money. I wanted to sneak and get him something while we were in the store. Besides, the salesperson and I couldn't understand each other! He ended up buying it himself! I wanted it to be a gift from ME!

Do we need to be worried about that? I think I read somewhere before that a wife was sending her husband money very frequently thru western union and it turned out to not be good thing, for them anyway.

But the main purpose of the bank account is for evidence, blah, blah, blah! Of course we'll use it for our financial purposes, but the main thig we are focused on is "proof".

I can't stand this!

I also remember reading in this thread, something about the dowry? I dont know if that was just for Pakistan or a part of the return process or what but she said that, she, the USC, had an interview and they grilled her for 2 hours? Whats that about?

Anyway.... I'm outta here. I'm gonna try to get me some sun. Its been raining here lately..............


Limah

Limah,

I think that was Chiquita that had the interview to reaffirm her petition.

Take p;enty of pics of the both of you---of course if your man is a peticular as mine, it might take a while to get pics of you together---I swear that man wouldn't ask anybody to take pics of us the whole time I was there! and My son and I stayed with him close to 6 months! LOLOL

Have fun!

Mary K.

So when thy review the case, they're going to interview me? I think thats what I read and it said to make sure the dowry is justifible. I beelieve it was Babybunny, is she still around? Anybody know? I also think she went thru pakistan, thats why I'd pointed out that geographical location spcifically, I have to go back between pgs 10 n 11 I believe thats about the area I saw that post referring to what I was talking about.

I feel you on the picture taking...... Abdel isn't so bad about takin pictures. While Im here anyway. While I was at home I would beg him to get pictures and send them to me. He would send like 3 or 4, and when I send him pics of the goings on at home I send like 30 pictures, online n actual photos. We've taken close to 300 I believe, and theres room for more. We're putting them in on monday tho. I may have to leave early, my daughter is begging me to come home, and my little sister has the house in disarray (spelling?). So I'm going in, kicking the door down and get my house back in order! Abdel agrees that I should go, both of our mothers are deceased and we talked about that, and of course he understands. I'm still mad at lil sis and I do miss my daughter.

I'm gonna try not to go off TOO bad!

We'll be back for the summer as long as my plans workout!

Later everybody!

Limah

Mary K., u stayd here for 6 months? Really? First of all how old is your son because my daughter is 13 and school is a huge factor for me. I think all the time about how I'd go about doing that one.... if it came down to it. And also, dont you haave to file some type of documentation if u stay in Maroc longer than 3 months. I plan on staying all summer.

We were talking last night, and Abdel sked me... If I knew this would happen with the visa and the 221 g would I have still married him. It was just one of those I have moments I dont want to forget, it is just something about his yes that I can NOT explain, mmm-mmmm-mmmmmm!!!

I told him of course I would have and that we just have to do what we have to do, pretty much what we are doing anyway. Eventually we will be posting our news that we are together. Whether its thats he is in the USA, or that I am here for good in Morocco. He told me that in 1 year I would be ready to go back home. I said, if you're willing to give up your way of living, being around your friends and family, I would do it too. It'd probably be easier for me anyway, I have 2 people that I consider "true" friends, and I don't really see anyone in my family anyway. So an occasional visit, blah, blah, blah... yall get the picture.

Later everybody! Im going to cuddle and watch a movie!

Limah

Just tell me what to do, and I'm in!!! I know this will be a serious issue for Hamid and me. Debbie

opps, sounds like someone made a boo boo.

do you have a copy of the paper the CO gave to your husband with the 212(a)(5)(A) written on it?

chi

Do we need to be worried about that? I think I read somewhere before that a wife was sending her husband money very frequently thru western union and it turned out to not be good thing, for them anyway.

But the main purpose of the bank account is for evidence, blah, blah, blah! Of course we'll use it for our financial purposes, but the main thig we are focused on is "proof".



i never heard of needing a Moroccan bank account for 'proof' of a relationship. where did you get that info at?



I also remember reading in this thread, something about the dowry? I dont know if that was just for Pakistan or a part of the return process or what but she said that, she, the USC, had an interview and they grilled her for 2 hours? Whats that about?


gee never heard that from morocco either.

I have the paperwork for the tax amendment I will do when I get home. My sister mentioned something about a 1040X, but I need to talk to her again because Im not sure if I need that along with the 1040 or the 1040A, or do I need either of those forms at all? As far as Abdel having to sign the actual tax return, a fax is sufficient, yes? I'll probably do my name change first, though, and then amend the taxes.


your husband HAS to sign the tax return.

i did my taxes on line, had my husband print them in Morocco and mail the page he signed back to me.

[quote name='limah' date='Mar 30 2007, 05:58 AM' post='809324']
Hey Dre. What ever happened with your petition return for 221(a) instead of 221(g)? Any news or updates on that?

yes, please give an update

chi

[quote name='limah' date='Apr 1 2007, 07:26 AM' post='812711']
So when thy review the case, they're going to interview me? I think thats what I read and it said to make sure the dowry is justifible. I beelieve it was Babybunny, is she still around? Anybody know? I also think she went thru pakistan, thats why I'd pointed out that geographical location spcifically, I have to go back between pgs 10 n 11 I believe thats about the area I saw that post referring to what I was talking about.


i dont know about Paki but you wont even get into the consulate in Morocco unless the CO requests for you to come in. questions about dowry???? its in the marriage contract if they want to know, but i dont think its an issue in Morocco.


I feel you on the picture taking...... Abdel isn't so bad about takin pictures. While Im here anyway. While I was at home I would beg him to get pictures and send them to me. He would send like 3 or 4, and when I send him pics of the goings on at home I send like 30 pictures, online n actual photos. We've taken close to 300 I believe, and theres room for more.

picture for rebuttal are great. the more the better. pics with family, friends and others will work. letters from family, friends are great proof too. your man can translate the ones he gets from Morocco. be sure those who do this for you include full name, address and phone number in the letter. make copies and send in with the rebuttal and for the next interview.


chi

I haven't specifically "heard of needing these things for proof, its just something we "came up with", But since we cant do a joint account, Ill probably just add him to mine, like I'd heard other people doing, or Ill just wire it from my account to his. The lady at the bank said BMCE works with Bank of America, Wachovia, and 1 other one that escapes me at the moment.

And I was just asking about the dowry cuz I hadn't hbeard that one either.


Limah

So his signature on the tax return is even MORE imprtant than his signature on the w7?

Well...I stayed a total of 6 months---2 months the first trip and 4 the 2nd trip. What Atif found out after we had left in September 2005 was that we could have stayed until he had the interview....or as long as I wanted---We would have just have had to come directly to the US. When we did leave, if I could have afforded to my son and I would have went to Spain or France for a week and returned, but that wasn't an option at the time.

As far as school for my son, at the time he was around 6 and I had applied for home school license and we were on an "extended field trip" to study the middle eastern culture and do and intensive study of the Arabic language and traditions of Morocco. When we came back he entered regular school mid-year and passed on to the next grade without any problems.


Mary K.

have you read the form? i believe he has to sign BOTH.

I haven't specifically "heard of needing these things for proof, its just something we "came up with", But since we cant do a joint account, Ill probably just add him to mine, like I'd heard other people doing, or Ill just wire it from my account to his. The lady at the bank said BMCE works with Bank of America, Wachovia, and 1 other one that escapes me at the moment.

And I was just asking about the dowry cuz I hadn't hbeard that one either.


Limah
[/quote]



oh ok. i was not able to add my husband to my credit union account until he had a social security card. what is the reason you would like to have a joint account with him while he is still in morocco?

if you just want him to have money i always used money gram. it works great. as to me supporting him, it was never an issue. he had no job since he had an injury on the job there. i have never heard of consulates 'tracking' money given to applicants. i am not even sure if it is possible. is this a concern for you? i think you would be ok to send money to your husband. after all if the tables were turned he would certainly do the same for you.

chi

As far as school for my son, at the time he was around 6 and I had applied for home school license and we were on an "extended field trip" to study the middle eastern culture and do and intensive study of the Arabic language and traditions of Morocco. When we came back he entered regular school mid-year and passed on to the next grade without any problems.


Mary K.
[/quote]



oh Mary you are so smart!!! What a great idea!!! Here in my state we have the option of home schooling without any hassles from the state. so cool!!!!


chi

You husband MUST sign both, no photocopies, no faxes. This is one area the IRS will be strict and deny an ITIN and tax return if the signatures are not live. Also, you must have either a notarized copy of his passport or notarized copies of 2 other identification documents...this can be done in Morocco as a foreign notary is allowed per the Hague Convention.

Just be sure to read the instructions carefully.

~Kiyah~

I hadnt really thought about the homeschooling thing. Good idea to. I ws moreso thinking about online classes for my daughter or something to that effect.

Sending money to my husband is more of an issue for him than it is for me. He says that since he works, I dont "need" to send him any. Im sure if I sent him some he would go and get it. We had a long talk about that, too. I think the couple I ws referring to had issues because the wife was older than her husband and she has sent him quite alot in a short amount of time. Those were her words, we used to pm each other but I haven't seen her on here for sometime now.

I'm probably gonna scratch the whoe banking thing anyway.

I did read the w7 form, but this is one of those things I'll need to reead at least twice. I'll have him print it out, sign it and mail it to me tho, when that time comes.

Limah

tax time is just around the corner! not sure if you know, but you can put your husband on your return starting the year you were married. i dont believe you have to report his imcome since it was earned outside the USA and he is not yet a resident here.

chi

Can you amend your taxes after the 15th? I filed already and THEN found out I could do a joint return. If not.... here's to lookin at taxes for '07........

Limah

Can you amend your taxes after the 15th? I filed already and THEN found out I could do a joint return. If not.... here's to lookin at taxes for '07........

Limah
[/quote]


you can amend your taxes 3 years back. follow the directions for the 1040x. does your husband have a ittn? if not, you need to get one for him. go to irs.gov and read about amending and ittn's.

i have filed jointly since we were married. this is the first year we have filed and he is here with a social security card. in prior years we used the ittn.

chi

Will do! Thanx!

Limah

link to amended return info>>>>

http://www.irs.gov/taxtopics/tc308.html


Topic 308 - Amended Returns

If you discover an error after your return has been mailed, you may need to amend your return. The service center may correct errors in math on a return and may accept returns with certain forms or schedules left out. In these instances, do not amend your return!

However, do file an amended return if any of the following were reported incorrectly:

your filing status
your total income
your deductions or credits

Use Form 1040X (PDF), Amended U.S. Individual Income Tax Return, to correct a previously filed Form 1040 (PDF), Form 1040A (PDF), Form 1040EZ (PDF), Form 1040NR (PDF), or Form 1040NR-EZ (PDF). If you are filing to claim an additional refund, wait until you have received your original refund (you may cash that check). To avoid penalty and interest, if you owe additional tax for a current year amended return, file Form 1040X and pay the tax by April 15 of the current year. If the due date falls on a Saturday, Sunday, or legal holiday, the due date is delayed until the next business day (i.e., Tax Year 2006 is due April 17, 2007).

File a separate Form 1040X for each year you are amending. Be sure to enter the year of the return you are amending at the top of Form 1040X. The form has three columns. Column A is used to show original or adjusted figures from the original return. Column C is used to show the corrected figures. The difference between the figures in Columns A and C is shown in Column B. There is an area on the back of the form where you explain the specific changes being made on the return and the reason for each change. If the changes involve another schedule or form, attach it to the 1040X. For example, if you are filing a 1040X because you have a qualifying child and now want to claim the Earned Income Credit, you must attach a Form 1040 Schedule EIC (PDF) to show the qualifying person's name, year of birth, and social security number.

Generally, to claim a refund, Form 1040X must be filed within 3 years from the date you filed your original return or within 2 years from the date you paid the tax, whichever is later.

If you are filing more than one amended return, be sure to mail each in a separate envelope to the service center for the area in which you live. The Form 1040X Instructions list the addresses for the service centers.

Please Note: Your state tax liability may be affected by a change made on your federal return. For information on how to correct your state tax return, contact your state tax agency.

Got news that Abdels I-130 was returned to the CSC with a prioority date of June 2, 2006........ The date on the notice is March 23rd from NVC.

Whass dat all about? I'm gonna call 'em on monday to see whats going on.... Buuuut of course Im looking for some feedback here too. Thanx.


Limah

I'm not sure, but it sounds like the date the CSC has issued you. Similar to when you initially applied for the CR1, but this priority date is for them to readjudicate your case. Our second priority date was 12/19/05, and they finally readjudicated it in August of 2006. How far did you get in processing the CR1?

Well, our priority date is of last year. Could that be a mistake? Ok, now that u mention it, I do think that June 2, 2006 is the date on one of the NOA's. Will have to verify that when I get home, but I am pretty sure. As far as the processing of the CR-1, DONE! I also got an email back from NVC saying they had received everything. When u stop into the other group... I posted it all there.

That's a whole 'nother year and some change between your readjudication and your husband actually coming home! Thats crazy.

I was reading in one of the other threads and I read that your father passed away, V.I.H. I am truly sorry for you loss.



Limah

Hello?

Well, I called uscis and was told that I have to wait 120 days from the day they got the petition back which is basically 3 months from now. Acording to the lady at Immigration, if it isnt reviewd by then to call back. I am 100% certain I will be calling back. Can ANYBODY hook me up on what I can expect next? Am waiting on the letter to revoke/deny or the letter to submitt more evidence?

Oh GOD my head hurts!

Limah

Quick question i have ask a few but guess they are no longer online. On the k1 deny to be sent back, beings casa is supposed to be so slow and now from what ive heard and read california just lets them expire anyway. Am i assuming, mine which expires 6-6-07 anyway being slow to come back, will be expired, then if no notice is sent....... so after expires date are we free to refile again or is there something that we HAVE to have before we can start the process.

[/quote]

Hello?

Well, I called uscis and was told that I have to wait 120 days from the day they got the petition back which is basically 3 months from now. Acording to the lady at Immigration, if it isnt reviewd by then to call back. I am 100% certain I will be calling back. Can ANYBODY hook me up on what I can expect next? Am waiting on the letter to revoke/deny or the letter to submitt more evidence?

Oh GOD my head hurts!

Limah
[/quote]


yes you are now waitng to receive the NOIR.

the NOIR will be telling you why they want to revoke your petition.

i was told to be proactive. make copies of my proofs and send them in to the USCIS office where my case is. i did this along with a letter explaining what happened and why i was sending the proofs. i sent my package so someone had to sign for it as proof of delivery so the USCIS could NOT say they did not receive it.

after i received the NOIR letter i was prepared to answer it. i had been wotking on it all along. of course it was just a draft but i wanted all my ideas down and ready to go.

basically you will be responding to any CFR that they and the CO believe cause you not to be eligable for a visa. then there is 8 CFR 103.2((16) "Applications, petitions, and other documents" that is the golden one we can all use to overcome the CO's accusations.

in the meantime keep up collecting your proofs. keep a paper trail of everthing you have done to try working with casa to prevent your case from being returned. you want to show USCIS that you tried and yet casa turns a deaf ear.

chi

Each service center does things differently. I don't know about Texas, but CSC sends a notice stating it is expired. Once you have received notice then you are free to file again, but never under any circumstances refile until some sort of resolution has happened with the denied K-1.

Ok so is it Texas or Calif ? here is the entry i saw from just today on expired petitions:

" saying that they had been contacted by CSC and was informed they DO NOT send out noid letters and that all the petitions are EXPIRED by the time they are sent back, and I could reapply (start all over)

This was just posted today the reason i ask, i understand the waiting, but if they dont sent anything by the expired date, its expired period. Then can we reapply

this refers to fiance 1-29 petitions only.

if you filed in tx and it was sent to ca then ca will get your returned petition.

the reason you must have proof of the service center rejection is becuz casa put a note in your husbands passport and they also have your petition filed. you need USCIS to confirm so that there is a mark removed.

chi

please read here>>>


http://www.ilw.com/search/documentFrame.asp?Request=marc+ellis&nPage=1&sort=Date&MaxFiles=25&Fuzzy=&Phonic=&Stemming=Yes&NaturalLanguage=No&HitNum=8&cmd=getdoc&DocId=3030&Index=%5c%5cilw%5cwwwroot%5cdtSearch%5cILW%20Web%20site&HitCount=4&hits=34+35+df8+df9+&hc=3456&req=marc+ellis



PART OF ARTICLE:

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.



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[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)©



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About The Author

Marc Ellis practices immigration law in Ho Chi Minh City Vietnam and Houston Texas with Pham & Associates PC. He is a frequent chat moderator for ILW.COM and also an advisory board member for Immigrants Weekly. In France, he is known as the composer of "The Fantomas Waltz". His email is marcellislaw@gmail.com.



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In case you all missed this post, I thought it might be useful for this thread: http://www.visajourney.com/forums/index.php?showtopic=63122

Thats the reason i was questioning IF we didnt get the letter after application expires, from her experience

while it is true that CSS does not send out NOIR (so some couples were told) for K 1's, someone did mention that one can ask for one. i need to find that info for you.

as i stated earlier, i was told to be proactive. perhaps you can do the same?

once you know for certain you case has been sent back then you can reply to the CO's letter with proofs and evidence of your relationship via the CSC requesting they extend the validity of your petition and requesting a NOIR.

sounds dumb, but why not try it? i will try to find the info you need to do this. or you can try to find it if you like vis CFR.

i wish i had more help for you brnidokiegurl, but at the moment this is the best i can come up with. i think any and all corespondence with the consulate and the service center where your case will be sent is worth all your efforts. even if they dont listen you may be able to take other actions. there is always the writ of mandamus too.

chi

I know thanks you have done alot already, just trying to comprehend all this in the last week, we have done the letters to the embassy, and actually still sending letters to them, (not like bugging them on a daily basis) but he is gathering ones from over there to send in also, and i have contact with 2 senators and 1 US rep...next step???

yes it was intersting. thanks

she is not responding to since she spilt with her fiance.

chi

i so understand all the frustration of what you have been through.

the next step is not what you want to hear.

waiting.

if your efforts pay off and the consulate decides to change their minds, you fiance will get a phone call from them. i hope he has a phone available for this. i would say to wait at least a few weeks for this. i cant remember how long it took for the other 2 couples. they did not wait more than a few weeks for sure.

if you have not heard from the consulate, then you will have to assume your case was returned.

next step after that is NVC fraud unit will get your case. after a while they send it on to the service center where it was approved. after that, dang brnidokiegurl i dont want to get that far ahead. lets concentrate on now and the next week or so to see if your fiance gets a call from the consulate.

in the meantime continue to collect your proofs and try to relax. easier said than done i know, but do try.

chi

thanks, we are fine, just taking one day at a time, he does have the phone with him and just doing as you and others have suggested. Mainly just wondering how we would know something so i guess if we havent gotten the call in a couple weeks we will know. Thanks you have been very good to help us.

by Kiyah>>




Here is what is happens when a petition is returned:

221(g) is issued to beneficiary at conclusion of the interview stating the application and/or petition is being returned to the United States.
Petition is returned to the United States by the interviewing consulate for "further review" in what is called a diplomatic pouch.
Returned petition is received by the NVC. It is reviewed and entered into the fraud database by fraud management.
Returned petition is sent to the local service center where the petition was originally filed.
Local service center receives returned petition.
Local service center who processed the original petition sends a notice of receipt to the petitioner.
Local service center reviews the returned petition and consular officer notes on the case.
Local service center then sends either a NOID (Notice of Intent to Deny) or NOIR (Notice of Intent to Revoke) to the petitioner also asking for more proof of the relationship, many cases have specific consular objections to rebut.
Petitioner is given 30-60 days from date of NOIR/NOID (depending on the service center) to respond with additional evidence of the relationship or other specific evidence. The timeframe to respond will be provided in the letter.
Local service center receives evidence...if in the timeframe given (30-60 days) the case is reviewed and either reaffirmed or denied.
If the petition is denied the local service center sends the petitioner an 'official' denial letter. This can be be appealed if the denial letter states such.
If the petition is reaffirmed the local service center sends the petitioner an official notice of reaffirmation.
Local service center sends the reaffirmed petition AND its evidence provided in the rebuttal directly to the consulate along with a recommendation to issue a visa.
Consulate notifies the beneficiary of a new interview date.
Beneficiary has interview for the reaffirmed petition and the visa is either issued, or the case in placed in Administrative Processing which after cleared a visa is issued, or worst case scenario it is denied via 221(g) and returned again to the USCIS.

What can you do immediately when faced with this issue:

Immediately have the beneficiary send a scanned copy of the 221(g) issued.
Contact the consulate directly (immediately) and attempt to have the petition reviewed by the senior consular before it is returned.
If you are unable to get through to the consulate on the phone, contact them via email, and if you're mail has a "read verification" use it.
Contact your congressman/senator, get them involved immediately. You will need to sign a release form giving them permission to make an inquiry on your behalf.
Provide your congressman/senator with as much information as possible about your case, the interview, and the result.
If your congressman/senator is top notch, they will not just send an email or letter to the consulate, they will call on the phone and try to get the petition reviewed again before it is sent back.
If they are not successful, they can request the diplomatic pouch number the petition is being returned in. This number will allow you to track the petition until it is received by the local service center.
If you do not know who your congressman/senator is, use the following links to find out who represents your area:

US Congressional Representatives (By State)
US Senators (By State)
If the petition is returned, you are in for a wait. The diplomatic pouch the petition is returned in is sent from embassy to embassy picking up other returned petitions along the way. It could take up to 2 or 3 months for it to be received by fraud management at the NVC...then the NVC has the petition for about 1 month before sending it to the local service center where it was originally filed. One thing to also know is that returned petitions do not take priority...they are reviewed in the order they are received...that is after new petitions have been processed.

What you can do in the meantime while you wait:

Continue contacting the consulate to get an actual reason for the return...not the blanket "validity of relationship" response.
Stay in contact with your congressman/senator, they can assist you in getting the actual reason for denial.
Immediately file a Freedom Of Information Act request for the Department of State asking specifically for the consular notes on your returned petition: DOS FOIA
Immediately file for a Freedom of Information Act request for the USCIS asking for the same specific consular notes on your returned petition: USCIS FOIA
Continue to document your relationship, emails, letters, phone bills, visits to their country, etc.
Be ready for the opportunity to rebut the consular findings.
Contact a good immigration attorney...preferrably one who has experience in returned and denied petitions.

After a period of 6 months or longer has passed and you do not hear anything from the local service center regarding the receipt of your return, or the results of the review, you can contact the CIS Ombudsman. While the Ombudsman cannot make the USCIS reaffirm your returned petition, they can assist when processing times are outside of guidelines

USCIS OMBUDSMAN
Now, there are some differences between returned fiance petitions and marriage petitions. The K1 is especially at risk due to the expiration of the original approval, many returned K1s are not given the opportunity to rebut, they receive a notice telling them their K1 has expired and may file again at any time...this is why the FOIA is so important. You need to know the exact reason the petition was returned, just filing again is a huge risk if you do not know why the petition was returned in the first place.

While the K3 does have an expiration date also, they are treated more seriously. I have not known anyone who has had a returned K3 not being given the opportunity to rebut. Obviously the CR1 does not expire. Still, it is very important to file the FOIA, not every service center will tell you exactly what the consular office findings or objections to issuing the visa are. Some people are only asked to provide more evidence of their relationship.

One of the main problems here is that we are dealing with the call center, which is outsourced, so these people aren't really knowledgeable with anything out of the normal petitions. Chi is right, you need to request the NOIR if they don't provide it to you, but again, I am 100% sure it is still in Casa.

At what point do you request the letter?

Limah

This is where it gets tricky. How do you know when it makes it to the service center. If your attempts to stop the return fails then it is important to have your representative get the registry number for the diplomatic pouch. From there you track it through the diplomatic pouch service (I have those numbers when/if you reach that point). You can track it up until the day it is sent to the NVC. From there you track it with the NVC. Once they show they have sent it to the service center you wait for a few weeks and start contacting the service center. They should by all rights send out another I-797 stating it has been received and give you a priority number, or even possibly a letter stating that the petition has expired. If the letter states it has expired you are free to start again. If not then you can at that point request a NOIR. If that is the road it takes then you have a wait ahead of you. It took them 8 months to send that to us. But the point is to "remind them" on a regular basis through your representative. Every 2 weeks is about adequate.

Ok. I do have emails from the NVC saying they returned the k-3. I also got a letter in the mail saying the CR-1 has been "returned" to the CSC. I have a letter (not I-797), saying the case was returned. No priority # but there is a priority date, which is from last year. So, I'll give it a week more, and call. According to the emails and things, its been back at the service center since the end of march.

Limah

this is good news!

now be proactive and have your reps contact the service center and make an inquiry for you.

if you want to you can also write the service center addressing your return and asking as the reason why your case was returned. not that it will do any good mind you. but you are letting them know you are staying on top of your case.

you may also want to include copies of all your proofs. you will also do it again once you get the NOIR but it is my opinion that if you do this it can speed your case along faster since they are only following procedure by sending the NOIR but they will already know you have concrete proof of a valid relationship prior to the NOIR and are just waitng on your responce which will be approved once you reply.

i hope this all makes sense.

chi

It does make sense and I am going to start organizing things a bit more as soon as I get home. Do you have any idea why I would have a priority date of 6/02/06? This is the priority date on the notice telling me the cr-1 was returned. The date from my NOA 1 5/2/06, and it was approved in 9/23/06, so I dont see how THAT makes any sense...

Limah

That is pretty weird, I can't say I have seen where they have retro dated it before. Anyone else?