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221g

#1 ~kiyah~

~kiyah~

    Treasure every moment as if it were your last.

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Posted 17 February 2006 - 06:21 PM

Ok, I have been asked to start this topic here in this forum. Including myself (K1), there are many of us going through several consulates whose petitions have been sent back to the United States for review.

We need a central place to discuss this issue and help each other out...posts in other forums keeping dropping off.

I am hoping this topic will be "pinned" as it is a very serious issue that many of us are dealing with right now. I refuse to let this topic die! So, if this topic touches you personally as it does me...post here. If this topic interests you because you may face it going through Morocco or other consulates...post here.

My Story:
Like the story of so many others recently, I really thought we were denied when my fiance received this 221g...apparently this is a "soft" denial, not a "hard" denial. Our K1 petition was sent back to the United States for further review of the validity of relationship...basically the consular officer was not satisfied during my fiance's interview even though she refused to take ALL of our evidence into account to make a fair assessment.

I and my Senator fought and fought to get the consulate to look at all of our evidence of a valid relationship BEFORE they sent it back to the US and it did not work...all efforts here were fruitless.

The petition is being sent back and we have to wait for the USCIS to make a decision in our case. It will be about 6 months before I hear anything from the USCIS. This however does not mean I will sit still during this time...oh no, no, no. The USCIS office who initially processed AND approved my petition is receiving all of our proof that the consular officer refused to look at during the interview as well as proof of our ongoing relationship before they make that decision.

You can view the thread of posts regarding my case as these events transpired just after the interview:

K1 Visa Denied in Morocco

The Research:
Myself among others in the ME/NA forum have done extensive research in this area in attempt to help ourselves figure out WTH is going on with our petitions and how to fight this in the United States before actually being denied by the USCIS.

Here are links US Department of State website unclassified telegram communications to Consulates regarding the official process for returning "approved" K1 and K3 visa petitions back to the United States:

GUIDELINES AND CHANGES FOR RETURNING DHS / BCIS APPROVED IV AND NIV PETITIONS

GUIDANCE ON PETITION REVOCATIONS

9 FAM (Visas) - Section 40.0 of the Foriegn Affairs Manual Specific to revocation:

9 FAM 40.0

Poll:
General Poll I created in an attempt to gather basic information from other VJ users going through this issue:

221g Notification, Visa Petitions Sent Back to the United States


(F) ~Kiya~ (F)

(L) WE WILL NEVER GIVE UP! OHIBOUK RAJLI...LHBIB DYALI (L)
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~ Returns & Refusals...What They Don't Tell You ~

DISCLAIMER: I am not an attorney, all information provided is from years of research and personal experiences of those affected by returned visa petitions/applications. If this is happening to you, my personal advice is to research the facts, hire a good immigration lawyer who can demonstrate they specialize in returned/denied visa petitions and applications.

~ Faith, Patience, Perseverance ~


#2 ~kiyah~

~kiyah~

    Treasure every moment as if it were your last.

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Posted 17 February 2006 - 11:23 PM

Ok, back to researching and have a question. There seem to be 2 types of appeals, and I am confused at which one would apply to cases sent back for review then being denied:

1. Administrative Appeals Office

I-290B Form and Process

2. Notice of Appeal of Decision Form I-694

Now, I 'think' that the I-290B is the correct form and process for denied petitions but it is not very clear. From what I understand now, not every case can be appealed. When the petitioner receives notification of denial from the USCIS the notice will tell them if the can appeal and which office to appeal to.

Concerning a K1 there is probably no right to an appeal...which really doesn't matter to me. In the even we are denied we will get married and file for the K3. The timeframe of an appeal is HUGE and from what I hear most of the appeals are fruitless. Still I want to research everything I can...even if it does not help our case, maybe it will help someone else.

Has anyone else researched the appeal process? Which form is correct?

(F) ~Kiya~ (F)
  • 1
~ Returns & Refusals...What They Don't Tell You ~

DISCLAIMER: I am not an attorney, all information provided is from years of research and personal experiences of those affected by returned visa petitions/applications. If this is happening to you, my personal advice is to research the facts, hire a good immigration lawyer who can demonstrate they specialize in returned/denied visa petitions and applications.

~ Faith, Patience, Perseverance ~


#3 ~kiyah~

~kiyah~

    Treasure every moment as if it were your last.

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Posted 19 February 2006 - 12:25 PM

Very interesting article by an immigration attorney in New Orleans...I wish I could hire this man.

(F) ~Kiya~ (F)

Clash Of The Titan Bureaucracies? The Battle Between DHS And US Consulates
by Marc Ellis, Esq.

It is hard to imagine a bigger bureaucratic blunder than granting fifteen Saudi hijackers tourist and student visas to enter the United States. But that is exactly what happened in Saudi Arabia in 2000 and 2001.

More than any other Federal agency, the US Consular Corps is responsible for allowing the 9-11 hijackers into the United States. In the months following September 11th, periodicals like the National Review posted photos of the DS-156 forms submitted by the hijackers. They were so scribbled and incomplete, as to be facially unapprovable. Yet, Consular Officers in Saudi Arabia approved them without even scheduling interviews!

As a result of September 11th, the US Consular Corps now find themselves subject to the oversight of a government agency outside the State Department, perhaps for the first time in their two-hundred plus year history. The Department of Homeland Security now has the final authority over the issuance of visas at the US Consulates. Consular Officers cannot issue a visa without DHS signing off on it.

DHS is also responsible for adjudicating visa petitions filed inside the United States. This is a historic and structural change in US immigration law. For the first time, a single agency plays a major role in overseeing the immigration process at both the consular level and at the CIS Service Centers inside the United States. The implications and consequences of this change are yet to be fully understood by practitioners and perhaps by the agencies themselves.

The focus and the priorities of DHS and DOS are quite different. Consulates focus on fighting visa fraud. DHS is focused on fighting terrorism and strengthening national security. Mundane visa fraud in family and fiancee petitions while important, is less important than preventing terrorists with weapons of mass destruction from entering the United States.

Yet, for US consulates, fighting visa fraud is still Job One. And the priorities of consular officers don't appear to be completely aligned with the priorities of the DHS. As an example, consular officers in Saudi Arabia approved Mohammed Atta's visa without a single fraud inquiry. Yet in Moscow, Guanxi, and Ho Chi Minh City, fiancees, spouses and their US Citizen petitioners must pass through a Kafkaesque gauntlet of obstacles and interrogations, the tactics of which at times are reminiscent of totalitarian governments.

Are we safer as a nation, with a consular corps that fights valiantly to protect us from foreign fianc嶪s and yet issues Mohammed Atta a visa without making a single fraud inquiry?

I know of a case where consular officers in Ho Chi Minh City forced a beneficiary to sign a confession to marriage fraud. The officer told her if she did not sign this confession, she would never be allowed to enter the US. The officer was making a misrepresentation of the law - or else it was not translated correctly to the beneficiary. The officer did not mention the IMFA, which provides that any person who has been found to commit marriage fraud would never be eligible for an immigration benefit. The frightened beneficiary dutifully wrote out her confession, believing she still might have her visa approved, if she just did what the consular officers ordered her to do.

In another HCM case, a consular officer issued a 221(g) letter demanding a divorced US citizen petitioner obtain copies of the birth certificates of his former in-laws! I wonder, how many divorced consular officers would be comfortable requesting copies of their former in-laws' birth certificates? It is a shame consular officers did not exercise similar vigilance in Riyadh, Saudi Arabia in the months leading up to September 11th, 2001.

Because DHS is now ultimately responsible for the adjudications of visa petitions filed by US Citizen petitioners inside the United States, it is also the agency which finds itself sued as a defendant in Federal District Court for the actions of consular officers.

Try to understand the dynamics of this relationship. DHS is legally responsible and must answer for the actions of consular officers. And yet, DHS has no direct operational control over what consular officers do, or how the consular corps sets its own priorities. The operational control of consular officers still resides with DOS. Yet DHS is held legally accountable when a consular officer crosses the line and violates a petitioner's constitutional rights.

A relationship like this is bound to create a little friction. Perhaps as a result of this inherent conflict, we see advisory cables periodically issued by DOS, cautioning consular officers that DHS/CIS approval of a petition is prima facie evidence of eligibility and that a CO must meet a high evidentiary standard before he or she can recommend revocation of that approval.

Perhaps the most recent evidence of a skirmish between the two agencies can be seen in a February 4th guidance cable issued by the Department of State to all consulates. I have included the entire memo and added emphasis where appropriate.

Every immigration lawyer should copy this cable and keep it handy. We'll be using it a lot in the months and years to come. This cable also announces some important changes to the revocation procedure.

One of the changes is that all recommendations for revocation will now be forwarded to the National Visa Center, and not to the CIS Service Center directly. The NVC will forward them to the CIS Service Centers. The NVC Fraud Unit will track the progress of the revocation in an attempt to minimize delays or the loss of the petitions. Also, the NVC Fraud Detection Unit says that it will "...utilize the data obtained from revocations to track trends for future intelligence dissemination....".

Every immigration lawyer should make note of this language from paragraphs 5,6,7 and 8.



5. "...The Department is regularly named as a co- defendant with DHS in cases involving the return of immigrant or nonimmigrant petitions to DHS. Therefore, it is particularly important that consular petition adjudications are well documented and clearly state the basis for the petition return.

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.

8."...DHS regulations require DHS/BCIS to provide the petitioner notice of intent to revoke, and to allow the petitioner an opportunity to rebut the grounds for revocation. DHS regulations require that, in the case of nonimmigrant petitions, the revocation must be based only on grounds specified in the regulations. Those grounds include evidence that the statement of facts in the petition was not true and correct, or that the approval involved gross error....".


Immigration lawyers should take note of that language. However, I wish consular officers would take note of this language:

"...conoffs are normally less knowledgeable about the basis for petition eligibility than DHS personnel; they therefore should not jump to conclusions regarding petitions. In addition, conoffs should return petitions only where there is specific, material and clear evidence to provide the DHS a basis to initiate petition revocation procedure...".

I have attended dozens of immigration interviews all over the United States. I have never seen an INS/CIS officer who was not knowledgeable in the laws at issue in the case being adjudicated. And I have never seen INS/CIS issue a request for evidence demanding a petitioner obtain copies of his former in-law's birth certificates! Sadly, at the consular level, I have seen both.

A Modest Policy Proposal:
I am not the first to recommend this. But it bears repeating. A good step toward both improving national security and giving visa applicants fair treatment overseas, would be to take visa issuance authority away from the Department of State and give it to Homeland Security.

This change will have at least three salutary effects.

(1) It will make the officers who issue visas legally accountable to Bivens' actions in Federal court, as they will no longer be 'consular officers'. They will be DHS adjudicators.

(2) It will allow allow DHS operational control over the people who issue visas. The priorities of the two agencies can at last be brought into alignment.

(3) It will improve our national security by allowing the officers who issue visas to focus on preventing terrorists from entering the United States, rather than spending their days terrorizing law-abiding US citizens and their fianc嶪s and spouses.

There is no constitutional problem with this proposal. The US Constitution does not grant consular officers a degree of immunity. The doctrine of non-reviewability of consular decisions is statutory and found in the Immigration and Nationality Act. Nor does the Constitution require that the persons who adjudicate visas in US Consulates be called "Consular Officers". They could just as easily be working for DHS. And the United States would probably be safer if they did.

The battle lines are drawn between these two agencies. Immigration lawyers should be prepared to use this latest advisory cable on our clients' behalf at the US Consulates, and also use it at the DHS/CIS Service Centers, if we represent a client whose petition has been recommended revoked by a Consular Officer.

_________________________________________________

[ All Emphasis Supplied ]
Department of State Announces Guidelines for Returning for Revocation Approved NIV & IV Petitions to DHS.

R 251642Z FEB 04
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY DUSHANBE
AMEMBASSY KHARTOUM
AMEMBASSY KABUL
AMEMBASSY BUJUMBURA
UNCLAS STATE 041682

VISAS - INFORM CONSULS
E.O. 12958: N/A
TAGS: CVIS
SUBJECT: SOP 61: GUIDELINES AND CHANGES FOR RETURNING DHS / BCIS APPROVED IV AND NIV PETITIONS

1. Summary. Effective immediately, all immigrant, K-1 and K-3 visa petitions being returned with a recommendation to the DHS Bureau of Citizenship and Immigration Services (BCIS) for revocation will be forwarded to the National Visa Center (NVC). This cable provides guidance to posts on proper processing of DHS petitions submitted in support of immigrant or nonimmigrant visa applications. It cites and provides supplemental material to already existing FAM procedural instructions. End Summary

2. Effective immediately, posts should forward all immigrant and K-1/K-3 visa petitions being returned to the BCIS with a recommendation for revocation to the NVC. The NVC has developed a system for tracking all immigrant and K-1/K-3 visa petition cases returned from posts with recommendations for revocation. There are two reasons for the change in procedure. First, many petitions returned to BCIS with recommendations for revocation have been lost. In other cases, post has not received any information from BCIS on the status of the revocation request. The NVC will track all cases returned to BCIS and ensure that the cases are sent to and received from BCIS in a timely manner. Second, the NVC Fraud Prevention Unit intends to utilize the data obtained from revocations to track trends for future intelligence dissemination.

3. Revocation cases will be forwarded to the NVC for review and data collection, and forwarded by NVC to the appropriate BCIS Service Center. Cases will be returned from the BCIS Service Center to the NVC and then routed back to the post of origin. The NVC will follow up on cases lacking information from BCIS in a designated timeframe. Please note that conforming changes will be made in the relevant section of 9 FAM 42.43, N2, "When to Return Petitions," N3 "Returning Petitions" and PN1 "Returning Petitions for Possible Revocation" and 9 FAM 41.81 N6.6 "Additional Factors That May Raise Questions in K-1 Cases." Nonimmigrant visa petitions other than K-1/K-3 petitions returned with a recommendation for revocation will continue to be sent to the appropriate BCIS Service Center.

4. All Immigrant and K-1/K-3 Visa Revocation cases are to be returned to the following address:

National Visa Center
32 Rochester Ave.
Portsmouth NH 03801
Attn: Fraud Prevention Manager

5. Unlike consular determinations regarding visa eligibility, which are not subject to judicial review, actions relating to DHS petitions are potentially subject to administrative and/or judicial review. The Department is regularly named as a co-defendant with DHS in cases involving the return of immigrant or nonimmigrant petitions to DHS. Therefore, it is particularly important that consular petition adjudications are well documented and clearly state the basis for the petition return.

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.

8. When a petition is returned to DHS, if DHS concurs with the officer's recommendation, DHS regulations require DHS/BCIS to provide the petitioner notice of intent to revoke, and to allow the petitioner an opportunity to rebut the grounds for revocation. DHS regulations require that, in the case of nonimmigrant petitions, the revocation must be based only on grounds specified in the regulations. Those grounds include evidence that the statement of facts in the petition was not true and correct, or that the approval involved gross error. The FAM often only summarizes the petition approval criteria because they are too lengthy and complicated to reproduce fully (the H regulations, for example, contain about 25 pages of double column material). Absent access to the full DHS regulations, conoffs may not be aware of all of the factors considered by DHS in approving a petition. In addition, conoffs are normally less knowledgeable about the basis for petition eligibility than DHS personnel; they therefore should not jump to conclusions regarding petitions. In addition, conoffs should return petitions only where there is specific, material and clear evidence to provide the DHS a basis to initiate petition revocation procedures.

Sufficiency of evidence

9. 9 FAM '42.43, Procedural Note One states that when returning petitions for possible revocation, "The original petition, along with all supporting documents, shall be returned under cover of a Form DS-3096, Consular Return/Case Transfer Cover Sheet, and a memorandum supporting the recommendation for revocation. The report must be comprehensive, clearly showing factual and concrete reasons for revocation. The report must be well reasoned and analytical rather than conclusory. Observations made by the consular officer cannot be conclusive, speculative, equivocal or irrelevant." The criteria cited in this note derive from the Board of Immigration Appeals case, Matter of Arias, in which the Board determined that the memorandum supporting a petition return did not constitute "good and sufficient cause" for petition revocation, because it consisted of "observations of the consular officer that are conclusory, speculative, equivocal, or irrelevant to the bona fides of the claimed relationship".

10. Memoranda supporting petition returns should be scrutinized carefully and objectively, bearing in mind that they may become relevant in litigation. The memoranda should be based on specific factual evidence, rather than conclusions, and should be clearly reasoned. For example, a statement that unnamed neighbors told a fraud investigator that a couple was not married is likely to be viewed as of relatively little value compared to a statement that names the neighbors, explains the nature of their relationship to and knowledge of the couple, and sets out the specific facts that led to the conclusion that the couple was not married. Signed statements are of greater value than second hand reports. Where a statement is prepared in English by a non-native English speaker, it should be proofread carefully. Posts can consult with CA/VO/L/A on cases where there are questions or concerns over the sufficiency of evidence cited in the memo supporting a petition return.

Notice to Applicant

11. INA 212(B) requires the conoff in most cases to "provide the alien with a timely written notice that- (A) states the determination, and (B) lists the specific provision or provisions of law under which the alien is inadmissible." 9 FAM 42.81 Procedural Note one instructs the conoff to provide: "1) The provision(s) of law on which the refusal is based; (2) The factual basis for the refusal (unless such information is classified); (3) Any missing documents or other evidence required; (4) What procedural steps must be taken by the consular officer or Department; and (5) Any relief available to overcome the refusal."

12. There are legitimate reasons why in some cases a conoff should not release all information relating to a visa refusal; such reasons could include classification of the information, confidentiality concerns, the need to protect an informant, or the "third agency rule" (information from another agency should only be released with that agency's permission). However, absent such considerations, conoffs should provide the applicant with the full factual basis for a visa refusal, as well as a reasonable opportunity to overcome the finding. This is particularly important to ensure that the Department's interests are protected in any subsequent litigation. It is important that conoffs maintain a record at Post showing that Post provided a written notice of the legal ground for refusal to the applicant, and, if possible, the factual basis for the refusal (this will normally consist of a copy of the OF-194). Conoffs are also reminded that in accordance with 9 FAM 42.81 Procedural Note 9, and 41.53 Note 2.3, copies of returned petitions and all other relevant material must be retained at Post.

Additional Considerations

13. Post's requests for petition revocation are often based upon investigation results. Consular managers should ensure that their fraud prevention programs actively tie investigations to legally-pertinent factual questions, and that they are likely to produce concrete evidence. In other words, if an investigation that confirms conoff's suspicions will not serve to allow DHS to revoke the petition, post is not managing its investigations effectively. Posts can find useful guidance on managing investigations and other aspects of fraud prevention at CA/FPP's intranet site at http://intranet.ca.s...fpp/fpphome.htm. In accordance with the guidance in 9 FAM 40.63 Note 10.1, where there is evidence that the petition was approved based on fraud, the fraud cannot be considered to be material until the petition is revoked, and therefore while post can enter such cases into CLASS as P6CI, post should not pursue a 6C finding until the petition is revoked or abandoned. As stated in 9 FAM 40.4 note 10.1, post should be aware that any evidence presented to DHS in support of a petition revocation may be passed to the petitioner as part of the petition revocation procedures. Finally, Posts should review 9 FAM 40.51 Note 10 on the handling of petitions where there is evidence that a labor certification was obtained by fraud or material misrepresentation.


Article Link
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~ Returns & Refusals...What They Don't Tell You ~

DISCLAIMER: I am not an attorney, all information provided is from years of research and personal experiences of those affected by returned visa petitions/applications. If this is happening to you, my personal advice is to research the facts, hire a good immigration lawyer who can demonstrate they specialize in returned/denied visa petitions and applications.

~ Faith, Patience, Perseverance ~


#4 almaty

almaty

    1st class Chopf##k



Posted 20 February 2006 - 04:38 PM

the attorney who wrote that letter is a poster on this forum..ellis island...
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Peace to All creatures great and small............................................


But when we turn to the Hebrew literature, we do not find such jokes about the donkey. Rather the animal is known for its strength and its loyalty to its master (Genesis 49:14; Numbers 22:30).



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my burro, bosco ..enjoying a beer in almaty

http://www.visajourn...h...st&id=10835

#5 ~kiyah~

~kiyah~

    Treasure every moment as if it were your last.

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Posted 27 February 2006 - 10:53 PM

This issue has got to get pinned somewhere!!! :protest:

This is happening all over the place in Morocco and we need a central place to retrieve/share extremely important information to help us through this issue.

More and more this consulate in Morocco is handling visa petitions by giving the beneficiary a 221g stating:

"We have returned your application and petition to the Department of Homeland Security's Citizenship and Immigration Service. Any further inquiries to your application and petition can be directed to their attention at the CIS office where the petition was originally filed."

Thus...returning the petition to the United States, and not for Administrative Processing. Moreover it seems to be the same consular officer treating visa petitions like this no matter the amount of proof they have during the interview. There is something very serious going on at the consulate in Morocco.

(F) ~Kiya~ (F)

Edited by Kiya, 27 February 2006 - 10:54 PM.

  • 0
~ Returns & Refusals...What They Don't Tell You ~

DISCLAIMER: I am not an attorney, all information provided is from years of research and personal experiences of those affected by returned visa petitions/applications. If this is happening to you, my personal advice is to research the facts, hire a good immigration lawyer who can demonstrate they specialize in returned/denied visa petitions and applications.

~ Faith, Patience, Perseverance ~


#6 ~kiyah~

~kiyah~

    Treasure every moment as if it were your last.

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Posted 01 March 2006 - 10:14 AM

A mountain of VJ user support regarding pinning this issue:

Returning petitions to the United States via 221g

Thank you everyone for your support...there are many of us going through this issue who not only want to help themselves but also want to help and educate others who may face this issue in the future.

(F) ~Kiya~ (F)
  • 0
~ Returns & Refusals...What They Don't Tell You ~

DISCLAIMER: I am not an attorney, all information provided is from years of research and personal experiences of those affected by returned visa petitions/applications. If this is happening to you, my personal advice is to research the facts, hire a good immigration lawyer who can demonstrate they specialize in returned/denied visa petitions and applications.

~ Faith, Patience, Perseverance ~


#7 chiquita

chiquita

    Platinum Member

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Posted 05 March 2006 - 06:33 PM

Ok, back to researching and have a question. There seem to be 2 types of appeals, and I am confused at which one would apply to cases sent back for review then being denied:

1. Administrative Appeals Office



2. Notice of Appeal of Decision Form I-694

2. [url="http://uscis.gov/graphics/formsfee/forms/i-694.htm"]Notice of Appeal of Decision Form I-694

Now, I 'think' that the I-290B is the correct form and process for denied petitions but it is not very clear. From what I understand now, not every case can be appealed. When the petitioner receives notification of denial from the USCIS the notice will tell them if the can appeal and which office to appeal to.

Concerning a K1 there is probably no right to an appeal...which really doesn't matter to me. In the even we are denied we will get married and file for the K3. The timeframe of an appeal is HUGE and from what I hear most of the appeals are fruitless. Still I want to research everything I can...even if it does not help our case, maybe it will help someone else.

Has anyone else researched the appeal process? Which form is correct?

(F) ~Kiya~ (F)




First Kiya I want to let you know about denials. There is no such thing as a "soft" or "hard" denial. The 221g is a denial by the consulate only. The CO must make a decision on the day of the interview whether to issue a visa or not. (Well, that is according to their guidelines).

If you look at the bottom of the letter it gives a *WARNING:

*WARNING: IF YOU FAIL TO TAKE THE ACTION REQUESTED WITHIN ONE YEAR FOLLOWING VISA DENIAL UNDER SECTION 221 (G) OF THE IMMIGRATION AND NATIONALITY ACT SECTION 203 (G) OF THE ACT REQUIRES THAT YOUR APPLICATION BE CANCELLED.

Then it has the signature of the CO who denied you. So as we see the form letter it does inticate that it is a denial by the consulate. We need to have this issue clarified.

Now about the other issues concerning appeals.

Casa sends your case back to NVC to the Fraud Section.

Then NVC sends it to the BCIS office where you filed the petition.

BCIS will send you a letter notifying you that they have received information that the beneficiary does not appear eligible for the benifit sought.

Everyone calls the letter a NOID. On my letter is is an ITR (Intention to Revoke)

In it they write:

The consular officer concluded that the realtionship bewteen the petitioner and the beneficiary is not valid for immigration purposes. The letter goes on to say the it appears there is "good and sufficient cause" that exists to deny the present case. Do they give you the "good and sufficient cause"? No they do not.

Then they quote some board decisions and inform you that they intend to revoke the petition.

They then give you 30 days to offer evidence to support the petition and in opposition to the proposed revocation.

This is your opportunity to rebutt the findings of the consulate.

It is at this point that you get the chance to respond with all of the proof needed to stop the revocation. Ellis has stated before it is difficult to do. However, I did not find it difficult.

It BCIS agrees with you, the case id reaffirmed and sent back to NVC for the DOS to take action on it.

If you fail to prevent the revocation, the petiton is revolked by BCIS. You will then have a period of time to make an apeal to the Administrative Appeals Office. (Should a petition or application be denied or revoked by the USCIS, in most cases you may appeal that decision to a higher authority.)

You would be using the I-290B Form and Process for this situation.

This is back logged a few years. So you get into another line to go to appeals for your petition. Sorry to say I am sure this process will be very lengthy to say the least.

Lastly you will recieve the Notice of Appeal of Decision. The decision will be fianl at this point.

I do believe you can refile another 129 if you feel you have new evidence to support a new petition.

Whelps thats my take on all of this! I am sure you will not get this far...ie appealing your case Kiya. From what I read those who actually went to appeals had nothing to satnd on in the first place!!
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#8 mikehofman

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Posted 06 March 2006 - 10:07 AM

Hi Kiya

My Fiance visa was sent back July 2005 and received by CSC Auguat 2005,until today i don't have an unswer on their last email i got in October 2005 they said they are reviewing petitions from January 2005 and before.
My fiance was given a 221-g asking for a cosponsor i located the cosponsor and mailed it to the consulate in Tbilisi Georgia.
They sent my petition back to DHS, for review and possible revocation, the consular officer has too many questions and concerns regarding the relationship.
December 2005 i traveled and saw my fiance for the second time, you cannot imagine how much the denial effected her , The American consulate is a SIX her bus ride from Yerevan Armenia, and she whent twice for a young girl its hard and you also have to stay their overnight you can not travel back home after the interview.
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#9 portsaid

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Posted 10 March 2006 - 12:18 PM

Dear Kiya,

I have read your posts and I just don't understand what's going on. I feel so badly for you. I have nothing to offer other than my admiration for your determination and spirit as well as my heartfelt sympathy for being separated from the man you love. I hope your upcoming visit to Morocco will be blissfully happy.
My mother's best advise to me has always been everything happens for a reason and while I'm sure you can't imagine why this would happen, try to trust that it will all work itself out eventually.

Best wishes (L)
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#10 moroccogirlny

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Posted 12 March 2006 - 12:05 PM

I am really new to this fiance visa, but can you give me some ideas why they keep denying your fiance his visa? Were you missing any proofs?
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01/2006 - Filed k1(1st time)
04/2006 - Interview (1st time) denied


Waited, waited...... no review

06/2009 - Filed k1 (2nd time)
09/2009 - NOA 2 approved
12/2009 - Interview (2nd time) APPROVED! VISA ISSUED
02/2010 - Arrived USA
04/2010 - Married


AOS Timeline

4/19/2010-Sent to Chicago Lockbox
4/26/2010-Received texts and emails 7th day
4/30/2010-Received NOA's(Hardcopies) 11th day
5/3/2010-Received ASC appointment notice(mailed 4/29/2010)14th day
5/7/2010-Walk-in Biometrics done(2 weeks earlier)18th day
5/13/2010-Case transferred to CSC
6/2/2010- Case received/resumed at CSC
6/18,6/22,6/23 AOS touches
6/28/2010- EAD production and touch on AP
6/29/2010-AOS APPROVED
7/2/2010- 2nd update on EAD production and touched on AP....
7/6/2010- Received "Welcome Letter" and AP document
7/12/2010-Received GREEN CARD and EAD




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#11 morocco4ever

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Posted 12 March 2006 - 07:31 PM

I am really new to this fiance visa, but can you give me some ideas why they keep denying your fiance his visa? Were you missing any proofs?


We all wish we knew that, but the consulate doesn't feel the need to tell us. BTW, its not just the fiance visa they are denying, it is also the CR1. You see, we weren't missing proof, some of us didn't even get an opportunity to show it. I hope this won't happen you you, but I think you need to be prepared for all possiblilites. One important thing....make sure that your fiance understands the question completely before he answers anything. They love to confuse them if they can. If he doesn't understand the question tell him to tell them to explain it better or translate it until he does understand.

Good luck!
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'Life should NOT be a journey to the grave with the intention of arriving safely in an attractive and well preserved body, but rather to skid in sideways - Chardonnay in one hand - chocolate in the other - body thoroughly used up, totally worn out and screaming 'WOO HOO, What a Ride'

#12 portsaid

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Posted 17 March 2006 - 03:03 PM

I think the large number of denials and/or delays in Morocco is due to volume of applicants and suspicion of marriage fraud. Many Moroccan men meet women online and propose or marry in a matter of months.
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#13 morocco4ever

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Posted 18 March 2006 - 09:32 PM

I think the large number of denials and/or delays in Morocco is due to volume of applicants and suspicion of marriage fraud. Many Moroccan men meet women online and propose or marry in a matter of months.


I have heard that Morocco is one of the top fraud countries, so this isn't suprising. But a quick engagement doesn't always point to fraud. There was a girl there when I flew out to marry my husband. She is from England and she met my husbands friend just 3 weeks earlier. I was a bit shocked that she would fly out there so quickly and marry someone she hardly knew. Here we are a year and a half later and they are still together and she is expecting their first child. Its a shame, they were denied the visa. They are now appealing. The sad thing is that he can't be there to see his first child born. Lucky for them that she lives so close and it is much easier for her to go there. She has already been there 8 times since they met. So....this is what they call a fraud marriage? Of course it is the British consulate, but they sound similar.
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'Life should NOT be a journey to the grave with the intention of arriving safely in an attractive and well preserved body, but rather to skid in sideways - Chardonnay in one hand - chocolate in the other - body thoroughly used up, totally worn out and screaming 'WOO HOO, What a Ride'

#14 Etrnaly

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Posted 05 March 2007 - 03:03 AM

My wife had her interview last month and she also got a 221g from HCMC. They asked for my tax return, family/relative info (like ssn, address, how they immigrated to the US, etc), and also any of her family that's in the US. We still haven't heard anything from them yet. Does anyone know how to find the timeline for how long this usually takes? The blue slip didn't say anything about going back to the US for review, so is it safe to assume it's being reviewed in Viet Nam and not sent back to the US? Actually, it doesn't even say anything about being reviewed. It basically just said "turn this in." Does this usually mean we're close to being approved pending those documents? Also, where where on this forum can I find people's timelines except looking at their signatures.
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#15 Ryan+Mandi

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Posted 08 March 2007 - 05:05 AM

Hey,

I am also in the same boat as you guys. I got a 221(g) 3 times and this last time, they said they were sending it back to the NVC. According to the letter, there wasn't enough credible evidence to prove our relationship and I don't understand why. I guess this happens in the New Delhi embassy as well. Right now, Mandi my fianc嶪. The link to my forum topic is here if you want to see what I went through: http://www.visajourn...showtopic=57777
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Our Timeline:

05.18.06-I-129F Petition sent to NSC
05.19.06-I-129F Petition rec'd by NSC
06.02.06-Rec'd NOA1
06.30.06-Rec'd RFE
07.03.06-Sent RFE to CSC
07.11.06-RFE rec'd by CSC - Reply
09.11.06-*APPROVED*
09.18.06-Rec'd NOA2
09.29.06-Sent I-129F pkg
10.04.06-Rec'd I-129F pkg
10.06.06-Embassy sent packet3
10.13.06-Form DS-230 to New Delhi Embassy
10.26.06-Rec'd initial packet3
11.08.06-Rec'd police certificate
11.08.06-Interview date thru email: DECEMBER 12, 2006 @ 8 AM
11.14.06-Rec'd interview letter snail mail
11.18.06-Medicals
11.22.06-Rec'd medicals
12.01.06-Packet4 to New Delhi Embassy
12.12.06-Interview - Still need passport clearance & co-sponsor
12.20.06-Sent co-sponsor info
01.03.07-Rec'd papers & passport clearance
01.04.07-Sent papers & passport to New Delhi Embassy - Rec'd
01.16.07-Passport sent out
01.18.07-Passport rec'd. No visa. Need more proof of relationship
01.24.07-Sent more proof of relationship
02.03.07-Rec'd proof
02.06.07-Sent to New Delhi Embassy
03.07.07-Rec'd passport. No passport. Papers back to NVC. Appeal!
---Currently corresponding w/Senator & Congresswoman of MO for help w/our case

~~~Montage of Ryan & Mandi in India~~~



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