Something that has bothered me about IMBRA is the Multiple Petition Waiver requirement. The law specifically states it is required "...with respect to two or more applying aliens...". But USCIS has interpreted this to mean it's required for the same beneficiary.

I wrote an article about it. There are some editing errors I hope they fix. But those VJ members to whom California Service Center is sending out letters stating they need to apply for a waiver to sponsor the same beneficiary, might benefit by reading it.

http://www.ilw.com/articles/2007,0206-ellis.shtm

I think USCIS blew it on this part of the law.

BTW, the problem is compounded at the California Service Center and the TSC, which sends K-1's to CSC for processing. Unlike Nebraska or Vermont, CSC does not send out NOID letters to returned K-1's.

So CSC petitioners find themselves in the position of being unable to prove the consulate was wrong in sending back the petition and being forced to apply for a discretionary waiver, without ever having a chance to respond to the consulate's allegations.

CSC at least, should change the way it handles the return of K petitions from consulates.

The problem is also compounded for NSC filers because they too send to CSC for processing of the I-129F petitions for Fiance(e).

You may be right. But does NSC send out the Notice of Intent to Deny letters? They did in 2006. I know I successfully handled a couple of NOID K-1 cases from NSC last year.

If NSC & VSC aren't doing it anymore - then it's a nationwide problem.

From my POV, it was ok to allow K-1 petitions to lapse and to allow the petitioner to file again. There was no prejudice against either the petitioner or the beneficiary. That was reasonable. But with USCIS misinterpreting the language of the statute and requiring discretionary waivers for ALL beneficiaries, not only different beneficiaries, it deprives a petitioner of the opportunity to rebut the consulate's findings against them.

This past summer we spent countless hours debating the interpretation of IMBRA by the USCIS, in particular Michael Aytes. The two year approval was entered as a conditional item to the need for a waiver with the "and" in the law. That particular item appears to exempt the second or subsequent filings if there is a more than two year period between approved applications. But that particular reference seems to have been completely eliminated.

The current procedural interpretation is simple. If you file a 2nd petition, you need a waiver. This doesn't seem to follow the law as written and certainly not the spirit of this badly worded law. In an effort to protect battered women, once again Congress has taken a shotgun approach to a problem they didn't have full knowledge of. Is anyone surprised?

Emphasis added:



That may be the reason USCIS did this. But the statute specifically states "with respect to two or more applying aliens."

Agencies have wide discretion to draft regulations to enforce laws. But agencies don't have the authority to re-word them or to ignore the wording of them.

But I know. It happens every day.

This has not been a big problem in my practice. CSC has granted the waivers I've requested. And I've always worded them, "Petitioner respectfully maintains a waiver isn't required for the same beneficiary, but if the Service in its discretion requires a waiver, petitioner respectfully requests that one be granted."

But I think the Aytes memo is just plain wrong on that point.

I am wondering, my fiance and I will be re-applying for the K-1 in a few weeks, as last September we were denied at CSC because of not having met the requirements of not meeting in person. Since that time, we have fullfilled that requirement and since this will be the second petition for the same beneficiary, would we need to request a waiver when submitting this petition? It seems a bit confusing.

I can't give legal advice in internet forums. I think you'll get the answer if you read the article & my post above.

There are two components to the multiple filing rule. (My interpretation)

The first is have you filed two or more petitions previously at any time in your life, the second rule is a subsequent petition within two years of a previously approved petition (exclusive of the issue of whether it is the same or different alien). While technically it appears that you will be filing only your second petition (I have made this is assumption) and your first petition was denied it would appear on the surface that a waiver would not be needed.

The real question is how is the USCIS interpreting IMBRA. We know from the OP's post that they are interpreting the law differently than what appears to be the intention of the law.

So while in the original intent of the law it would apear you don't, based on current practice by the USCIS you may.

Fwaguy,
Thanks for your response. Yes, there was only one petition filed in my life, and that one being last March ( 2006 ) . We are going to try again in the next few weeks, so this would be considered our second petition filed.
I read Ellis' post over and over and my guess is , no I do not need a waiver, however I think I should request one just to be safe, because you are correct, we DON'T know how USCIS will interpret IMBRA. Better to be safe than RFE'd .
Again, thank you for responding ! God bless you, Fwaguy

_________

I know how USCIS is interpreting it. Aytes' memo spells it out. And in my clients' experience, CSC is sending out letters stating that waivers are required. I hope that changes. It makes no sense and it doesn't help CSC either.

In the past - pre IMBRA - I thought it was good news when CSC allowed a K-1 to expire. It sent out an I-797 instructing client that he or she could file again. Consulates don't like it. But from a petitioner or beneficiary's POV, it was better than a revocation proceeding.

Why was it better? It was faster and easier, that's why. But digging through a file to see if a petition had been revoked, gave consular section chiefs some headaches, I imagine. But petitioner and beneficiary benefited.

CSC probably benefited too because it didn't have to assign staff to adjudicate K-1 returns & issue NOID letters. Now - with the waiver - CSC will have to assign staff anyway to adjudicate the waivers.

What will the time frames be? (In my experience - the processing occurs with the same K-1 petition, so no difference in processing time - yet. But how long will that continue?)

In my experience, CSC is allowing K-1 petitioners with the same beneficiary to file again when you request the waiver. But these waivers are discretionary. That means no judicial review except for an abuse of discretion.

Given the choice between discretionary IMBRA waivers and statutory revocation proceedings, I'd much rather CSC send out the NOID letters on consular K-1 returns. That is terrain with which I am familiar. Plus, agency discretion is limited. That means there is judicial review up and down the line.

IMBRA waivers are definitely terra incognita. And the fact that they are discretionary really worries me, especially when the statute clearly spells out they shouldn't be required for the same beneficiary.

Glad to hear that you guys have met in person Did you make it to Egypt? Welcome to the Cairo club

Hi Ellis

I enclosed an IMBRA waiver in my fiancee petition. They ignored it and sent me an intent to deny due to IMBRA and requested I send another waiver. This was sent out on April 23rd, 2007 and arrived April 28th, 2007. I promptly requested a waiver and sent it right back. Several very weird things. Usually with an intent to deny they give you 30 days. This notice only gave me till May 8th to submit a waiver and on the second page ( not the blue sheet) it gave me 30. But the blue sheet onlygave me 15 days to have my waiver there. I talked to an attorney today that is a friend of mine. He told me it could be one of 2 things. Either they saw the waiver and no matter what they arent going to give it to me and just sent this out basically to expedite denial due to imbra. Or they are just missing the waiver and if they didint have it, they would have approved it. It seems strange to me that the information is being requested so quickly.. not giving me anytime to get all kinds of things together. April send out intent to deny only giving me till May 8th to request a waiver.

What do you think?
Do I have a chance with this or did they basically already turn me down since I had the waiver request in my original petition/

Hi VJers,

I hope you can help with this.
My fiancee (the USC) got an intent to deny due to an previous petition. She read it to me this morning and I think it was this:


I think the reason they sent this intent to deny is that we misunderstood question 11 on the I-129F form "Have you ever filed for this or any other alien fiancé(e) or husband/wife before? If "Yes," give name of all aliens, place and date of filing, A# and result." We put in the A# and the date her Ex-husband was naturalized, not when his petition for AOS was filed/approved!
She married him in 2000 while he was in the US on a journalist visa. So she did not file a petition for a K1 or K3 but he applied for a Greencard and it was approved (that is how she described it, I think they filed I-130?). (see my post in Dec 2006)

Now my question is:
Shouldn't we just respond saying it was a mistake instead of filing for a waiver? As far as I know the only circumstances allowing a waiver are death of the spouse, domestic violence and such things and none of those has happened.

Thanks for your advice

Arnt

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Sorry it's taken me this long to respond. I haven't been around in awhile. 15 days is normal with CSC. Actually though, you get 18 days if its mailed. And there always a Motion to Reopen - in the event you're late. But you have to pay a new filing fee. In my waiver requests, I always quote the law, pointing out that it's not required for the same beneficiary. I include it with the I-129f. I've never goten an RFE ande every one has been approved.

I am the benefiacry of two different pettitioner.The first one is filed july last year and its approved this Feb08.In my case we are already broke up and i found this extraordinary guy who want to file k-1visa again this year(we already met in person) because he will be deploy this coming december to iraq.I know it will affect the second petition knowing that the 1st petition is totaly abandoned.What is the best thing we do?

The beneficiary is not the focus of IMBRA, it is the petitioner... You the benneficaiary are not affected by the provisions of IMBRA