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K1 denial? how long before filing for a CR1 spouse

#1 Sandy36

Sandy36

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Posted 10 June 2010 - 07:50 PM

Does anyone know how long I should wait to file for a CR1 after being denied for a fiance K1 visa? Is there a waiting period or do I need to submit any form to USCIS before I began the spouse visa? please let me know because i have to start looking at my options and getting married overseas.
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#2 payxibka

payxibka

    Supreme Member



Posted 10 June 2010 - 07:52 PM

Does anyone know how long I should wait to file for a CR1 after being denied for a fiance K1 visa? Is there a waiting period or do I need to submit any form to USCIS before I began the spouse visa? please let me know because i have to start looking at my options and getting married overseas.


you can submit as soon as you are eligible to do so and have all the needed documents
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YMMV

#3 Sandy36

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Posted 10 June 2010 - 07:57 PM

you can submit as soon as you are eligible to do so and have all the needed documents


Do i have to submit a waiver to immigration to remove the k1 Visa?
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#4 payxibka

payxibka

    Supreme Member



Posted 10 June 2010 - 08:04 PM

Do i have to submit a waiver to immigration to remove the k1 Visa?


no, if the K-1 is refused then it is refused and the petition case file will be closed.... The I-130 petition is not subject to any multiple petition limitations.
  • 0
YMMV

#5 FrancElsie

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Posted 10 June 2010 - 08:13 PM

Does anyone know how long I should wait to file for a CR1 after being denied for a fiance K1 visa? Is there a waiting period or do I need to submit any form to USCIS before I began the spouse visa? please let me know because i have to start looking at my options and getting married overseas.


Hello Sandy 36: As stated by others on this forum...you can apply as soon as you are eligible. However, what makes you think your fiance will be approved for a spousal K-3 visa???????? Most likely the reasons for the denial have not changed...just something for you to think about.
Best Wishes,
Franc
  • 0
12.31.2009 I-129F Visa Petition rec'd at CSC
01.04.2010 I-797 NOA Receipt Notice WAC1006xxxxxx
03.02.2010 Request for Evidence: CSC wanted copy of previous divorce decree. Arrived @ CSC 03.12.1010
03.16.2010 I-797 NOA-2 Approved and sent from California Service Center 71 Days from NOA-1
03.16.2010 USCIS sending notification of the approved application/petition to the National Visa Center.
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03.26.2010 Received NVC letter (hard copy) dated March 24, 2010 in the mail.
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04.07.2010 Embassy called for Elsie to come and get Packet #3. She will pick up April 13th.
04.08.2010 Embassy e-mailed Packet #3 to me today.
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04.30.2010 Visas approved...pick up everything on 5/4/2010 @ 3pm.
05.05.2010 Traveling together to the USA...POE Denver, Colorado
07.28.2010 Married today...end to a long journey with more to come!!

#6 JimVaPhuong

JimVaPhuong

    Does this 嫪 d跬 make me look fat?



Posted 10 June 2010 - 08:36 PM

no, if the K-1 is refused then it is refused and the petition case file will be closed.... The I-130 petition is not subject to any multiple petition limitations.


Caveat: If the K1 was denied at the consulate, but USCIS has not made a decision yet, then the petition is not yet dead. Filing an I-130 may not necessarily kill it, either. Apparently, there are people who've received NOID's on a returned K1 petition, and ignored them because they'd already filed a CR1 petition. Failure to respond to the NOID caused a P6C finding against the beneficiary (material misrepresentation). When they showed up for their CR1 interview they were told they were inadmissible due to the finding of fraud, their visa was denied, and they had to try to get a hardship waiver to overcome it.

The new CSC tactic described in the pinned topic by Marc Ellis could also conceivably be applied to a CR1 petition filed after a K1 petition was returned to USCIS. In those cases, CSC even SAID the K1 petition was dead, and still used it as a basis for a NOID on a subsequently filed petition.

There's certainly no danger in filing a CR1 petition after a K1 visa has been denied at the consulate. There may, however, be danger in presuming a K1 petition is dead. If you get a NOID then you must respond to it, even if it's for the original K1 petition. If you don't then you're inviting USCIS to conclude that the CO's accusation was true.
  • 2

12/15/2009 - K1 Visa Interview - APPROVED!
12/29/2009 - Married in Oakland, CA!
08/18/2010 - AOS Interview - APPROVED!

05/01/2013 - Removal of Conditions - APPROVED!


#7 Audy_Rob

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Posted 11 June 2010 - 12:33 AM

Caveat: If the K1 was denied at the consulate, but USCIS has not made a decision yet, then the petition is not yet dead. Filing an I-130 may not necessarily kill it, either. Apparently, there are people who've received NOID's on a returned K1 petition, and ignored them because they'd already filed a CR1 petition. Failure to respond to the NOID caused a P6C finding against the beneficiary (material misrepresentation). When they showed up for their CR1 interview they were told they were inadmissible due to the finding of fraud, their visa was denied, and they had to try to get a hardship waiver to overcome it.

The new CSC tactic described in the pinned topic by Marc Ellis could also conceivably be applied to a CR1 petition filed after a K1 petition was returned to USCIS. In those cases, CSC even SAID the K1 petition was dead, and still used it as a basis for a NOID on a subsequently filed petition.

There's certainly no danger in filing a CR1 petition after a K1 visa has been denied at the consulate. There may, however, be danger in presuming a K1 petition is dead. If you get a NOID then you must respond to it, even if it's for the original K1 petition. If you don't then you're inviting USCIS to conclude that the CO's accusation was true.

Agreed. However if the Ki is denied, he/she can file the new petition.

The problem is "if the USCIS issues a NOID, then you must respond to that NOID." Does a response such as No Contest or Do not wish to pursue keep you from receiving a finding of misrepresentation?

It sounds like you are saying you must vigorously defend against the NOID to the satisfaction of USCIS that you do not receive the finding of misrepresentation or fraud.

Will ALL "no responses" to an NOID result in a finding of misrepresentation or fraud? Is there a clean way to quickly squash the first petition after visa denial so you can go on to the second petition?

Thanks much.
  • 0

ROC
03/07/2013 - Mailed I-751 package overnight expres
03/08/2013 - NOA1 Date

04/09/2013 - Biometrics

07/16/2013 - Approved ! Date of Decision

07/24/2013 - Received Green Card

Finished for quite some time...


#8 JimVaPhuong

JimVaPhuong

    Does this 嫪 d跬 make me look fat?



Posted 11 June 2010 - 02:27 AM

Agreed. However if the Ki is denied, he/she can file the new petition.

The problem is "if the USCIS issues a NOID, then you must respond to that NOID." Does a response such as No Contest or Do not wish to pursue keep you from receiving a finding of misrepresentation?

It sounds like you are saying you must vigorously defend against the NOID to the satisfaction of USCIS that you do not receive the finding of misrepresentation or fraud.

Will ALL "no responses" to an NOID result in a finding of misrepresentation or fraud? Is there a clean way to quickly squash the first petition after visa denial so you can go on to the second petition?

Thanks much.


The answer to the bolded part is no, it depends on the reason for the visa denial. Assuming the visa was not denied for an inadmissibility, the most common reason for a consulate to use when denying a visa is "sham relationship for the purpose of evading immigration law". This constitutes an accusation by the CO that the beneficiary is lying about their relationship. The accusation is a time bomb. According to Marc, it sits in the beneficiary's file as a "P6C marker", referring to INA section 212, paragraph 6C, which deals with misrepresentation.

At the point that USCIS receives the petition from the consulate, the accusation is just that - an accusation. Whether it becomes anything else depends on what USCIS decides to do with it. If they reaffirm the approval of the petition, then they are discarding the accusation, essentially saying they don't buy the CO's argument. CSC had a habit of just letting the petition approval expire so they wouldn't have to deal with adjudicating the CO's accusation. Lately, they've been resurrecting those expired petitions and using the CO's denial as a basis for a NOID on the second petition, actually quoting the CO's reason for denying the first visa as a basis for the NOID on the second petition.

However it happens, if you get a NOID and don't respond to it, or if you respond and USCIS isn't satisfied and either denies the second petition or revokes the approval of the first petition, then the P6C marker becomes a "finding of fact" - the beneficiary is guilty of material misrepresentation - an inadmissibility that requires a waiver. A response of "no contest", "No intention to pursue", or anything else that does not rebut the CO's accusation will still result in the finding of fact being entered. Withdrawing the petition after the NOID is issued would have the same effect as not rebutting the NOID.

If the NOID is issued against the second petition, then you must successfully rebut the NOID in order to save the petition. If the NOID is issued against the first petition, then you still must rebut, but after the petition is reaffirmed it will either be administratively closed because the petitioner is now married to the beneficiary, or the petitioner can simply withdraw the petition and USCIS will close it. The point is that when that first petition dies it must be either because USCIS just let it expire, or because they reaffirmed it and then administratively closed it. If it dies because USCIS revoked the approval, then the beneficiary is facing some problems at the second interview.

I don't know of any sure fire way to force that first petition to go away. It dies when USCIS decides that it dies. Once a petition has been returned, if the petitioner wishes to continue to pursue the relationship, I think they should be prepared to respond with evidence in case they end up getting a NOID.
  • 0

12/15/2009 - K1 Visa Interview - APPROVED!
12/29/2009 - Married in Oakland, CA!
08/18/2010 - AOS Interview - APPROVED!

05/01/2013 - Removal of Conditions - APPROVED!


#9 Sandy36

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Posted 11 June 2010 - 01:11 PM

Thank you for all your responses. I'm just trying to look at my options in case the CO in Haiti does not accept my evidence for approval. the case is on pending status after they had requested for more pictures so I'm still waiting. If I don't get approve then I'll have to go and get married there and I know the process will be much longer and irritating. Where do I get the noid from in order to have USCIS close it so it doesn't affect the CR1?
  • 0

#10 pushbrk

pushbrk

    Straight Talk Member



Posted 11 June 2010 - 01:31 PM

In these situations, when filing an I-130 prior to hearing from USCIS about the I-129F, I suggest including an I-129F withdrawal letter with the I-130 filing. I've seen it work just fine in a California case.
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Facts are cheap...knowing how to use them is precious...
Understanding the big picture is priceless.  Anonymous


#11 sachinky

sachinky

    We just look a lot better under the blue lights.



Posted 11 June 2010 - 01:54 PM

Why was your K-1 denied, btw?
  • 0

03/27/2009: Engaged in Ithaca, New York.
08/17/2009: Wedding in Calcutta, India.
09/29/2009: I-130 NOA1
01/25/2010: I-130 NOA2
03/23/2010: Case completed.
05/12/2010: CR-1 interview at Mumbai, India.
05/20/2010: US Entry, Chicago.
03/01/2012: ROC NOA1.
03/26/2012: Biometrics completed.
12/07/2012: 10 year card production ordered.

09/25/2013: N-400 NOA1

10/16/2013: Biometrics completed

12/03/2013: Interview

12/20/2013: Oath ceremony

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#12 Sandy36

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Posted 11 June 2010 - 02:02 PM

Why was your K-1 denied, btw?

the K1 is not denied but has been under review for the past few days after the CO requested more pictures. She didn't like the ones we previously handed to her because they weren't intimate enough. My fiance answered all her questions but she requested more pictures. He brought more pictures now he's home waiting for a phone call. not sure when they're going to call and give a decision.
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#13 Audy_Rob

Audy_Rob

    Platinum Member



Posted 12 June 2010 - 01:18 AM

the K1 is not denied but has been under review for the past few days after the CO requested more pictures. She didn't like the ones we previously handed to her because they weren't intimate enough. My fiance answered all her questions but she requested more pictures. He brought more pictures now he's home waiting for a phone call. not sure when they're going to call and give a decision.

Absolutely. You haven't been denied yet. Be positive and hang in there. If they haven't denied you, you can't go and file again. They just wanted more photos.

Good luck.
  • 0

ROC
03/07/2013 - Mailed I-751 package overnight expres
03/08/2013 - NOA1 Date

04/09/2013 - Biometrics

07/16/2013 - Approved ! Date of Decision

07/24/2013 - Received Green Card

Finished for quite some time...


#14 Darnell

Darnell

    Wuhan Rocks !



Posted 12 June 2010 - 01:53 AM

Caveat: If the K1 was denied at the consulate, but USCIS has not made a decision yet, then the petition is not yet dead. Filing an I-130 may not necessarily kill it, either. Apparently, there are people who've received NOID's on a returned K1 petition, and ignored them because they'd already filed a CR1 petition. Failure to respond to the NOID caused a P6C finding against the beneficiary (material misrepresentation). When they showed up for their CR1 interview they were told they were inadmissible due to the finding of fraud, their visa was denied, and they had to try to get a hardship waiver to overcome it.

The new CSC tactic described in the pinned topic by Marc Ellis could also conceivably be applied to a CR1 petition filed after a K1 petition was returned to USCIS. In those cases, CSC even SAID the K1 petition was dead, and still used it as a basis for a NOID on a subsequently filed petition.

There's certainly no danger in filing a CR1 petition after a K1 visa has been denied at the consulate. There may, however, be danger in presuming a K1 petition is dead. If you get a NOID then you must respond to it, even if it's for the original K1 petition. If you don't then you're inviting USCIS to conclude that the CO's accusation was true.


To add some more -

If you are serious to go to Haiti, get married, and file the I-130 -
then send of a letter to USCIS and US Embassy Haiti to WITHDRAW THE I-129F PETITION, on or about the same day that you file for the I-130. This will clear up any silliness that might linger ..
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