Waiting for K-1 review in California Service Center?

[ellis-island 6]

Hi.

It makes me kind of sad to have to do this, because I am a fan of USCIS. I practiced before district offices and in

service centers all over the United States. I still have a soft place in my heart for the lovely people at the New Orleans

District Office. They taught me everything I know.

I have great respect for the professionalism and training USCIS officers receive. But I think it's necessary to

seek an extraordinary remedy now with California Service Center. I think it is time to file requests for expedited

reviews of expired K-1 petitions that have been returned by consulates. They delays at CSC have become intolerable.

I don't hold the Service Center at fault. The problem is that consulates send back to many meritorious cases.

They often do not adjudicate visa applications under the correct "reasonable person" standard. And that is partly

because DHS has not trained them in what the "reasonable person" standard is.

(Yes - DHS - not DOS is responsible for administering the visa process and for training consular officers

in immigration law. See Sections 402 & 428 of the Homeland Security Act of 2002).

So if your K-1 has been refused by a consulate and you have beeen waiting for it to be reviewed by California Service Center,

for more than six months, you may want to contact me. marcellislaw@gmail.com . I can't say too much more. But I think expedited review based on two grounds, USCIS Error and it is in the Compelling Interest of USCIS to decide to formulate a clear policy on whether it is going to review

expired K-1's or it is not.

There has been a lot of confusion on the issue.

Back in 2007, the Congressional liaison of CSC was stating for the record that

the Center will not review expired K-1's and that the Petitioners are free to file again.

I have client emails to that effect.

On May 23rd, 2008, in the USCIS Response to the Ombudsman's Recommendation 33, the Acting Director of USCIS, Jonathan Scharfen echoed CSC policy when he wrote:

There are several situations where USCIS may not act on a specific returned petition.

For instance, K-1 petitions are temporally limited and may expire due to the passage of time.

According to 8CFR 214.2(k)(5), an approved K-1 petition is only valid for four months. Consequently, in a number of cases, the K-1 petition will have already expired by the time DOS returns it to USCIS. Once a petition has expired, it may not be reviewed by USCIS. Furthermore, Petitions for Alien Fiance(e) (Form I-129 F) returned from a Consulate, Embassy, or NVC after approval may not be revoked, as there are no provisions in the law or regulation for revoking the approval of an I-129F."

(page 2 USCIS Response to CISOMB Recommendation #33)

So to recap where we were:

(A) In 2007 there was officially no review of expired K-1 petitions returned by consulates at the CSC.

(B) In 2008, the Acting Director of USCIS stated that an expired petition may not be reviewed and that there was no provision in law or regulation to revoke the approval of an I-129F.

Still, consulates kept returning hundreds of these expired petitions to CSC, expecting some kind of review and either reaffirmation of the approval or a denial that dated back to the date of filing. Today, some consulates, like HCMC and Guangzhou are now taking the position that they will not approve a re-filed I-129F until they have received a ruling on the one that was previously returned to the Service Center.

So hundreds of expired K-1 petitions are in a black hole at CSC. I know of cases that have waited more than two years.

In late 2008, CSC appeared to have changed its policy and stated that it will start reviewing expired K-1 petitions. I also have a Congressional Liaison email to that effect. But no time is given. And no one yet, to my knowledge has seen such a review and there was no public announcement of the policy change to my knowledge.

Recognized grounds for expedited review at Service Centers include USCIS error and Compelling Interest of USCIS.

It's pretty obvious that there was an error somewhere. Either AD Scharfen was in error in his memorandum when he stated that expired petitions may not be reviewed. Or else the policy of reviewing expired petitions, and consulates sending them back, expecting them to be reviewed, is in error.

Somebody here has made a mistake.

This is a first step toward litigation. I've spoken to other lawyers from large firms about this. They agree. But they want to target DHS with the goal of getting DHS to train consular staff in proper adjudication standards. That would be great. But my immediate goal would be to get a decision on whether expired K-1 petitions can be reviewed or not. In 2007-2008, the answer was an emphatic no. Now it appears to be 'yes'.

I think CSC's previous policy and AD Scharfen's memorandum were correct on the issue. There is nothing in the law or regulations that justifies reviewing or revoking (denying to the date of approval), expired K-1 petitions.

But nobody has told Department of State. And DHS has the authority to lay down the law to DOS - but apparently, that's not going to happen. Therefore, the only route aggrieved petitioners have is at CSC first, and then go to the courts.

I'm planning on doing the expedited review requests pro bono. I'll need to be reimbursed for costs, such as Fed-Ex, translation costs, copying or other costs associated with the filing. If people want to hire me for the revocation or re-file, that can be agreed to later. There is no obligation.

There is no guarantee a request for expedited review will be granted. But in view of the plain errors here, it is certainly justified.

Finally, I'll consider myself a winner if I just get a reasonable time-frame out of CSC.

The root problem here, as everyone at VJ knows, is that consulates return too many good cases. They overwhelm the

Service Center staff resources. The reason is that DHS has failed to train consulates in proper standards of adjudication.

Unfortunately, the way the law is the law. Either there is a statutory and regulatory basis for reviewing expired K-1

petitions, or there is not. And too many petitioners have waited far too long to find out.

[minimule 3]

csv seem to be doing pretty good, average approval time bw noa1 and noa2 is only 70 days... vermont on the other hand is taking an average of 133 days ...that s a huge difference...but i dunno much about all that stuff..

[ellis-island 6]

csv seem to be doing pretty good, average approval time bw noa1 and noa2 is only 70 days... vermont on the other hand is taking an average of 133 days ...that s a huge difference...but i dunno much about all that stuff..

Hi. I am only referring to K-1 cases that have been refused by consulates and returned to CSC.

It's after the consular interview and long after the NOA2.

[minimule 3]

oOoOoOOoOoO

[TBoneTX 45,497]

Go for it, Mr. Ellis! You would have a booming business purely with the improperly adjudicated/returned files from the rogue, ####### consulate in Guayaquil, Ecuador. Also, someone (perhaps among your official contacts) needs to inform that consulate that it is improper to kick an interviewee out of an interview after 3 minutes without accepting evidence that was brought, claim "insufficient evidence was brought" ("Not enough evidence -- go away"), ORDER a U.S. citizen to appear (on his own time & own dime) for a "joint" "marriage" interview, which is instead a Stokes interview with a Foreign Service National (without the courtesy of any contact with an American), and then claim "Too much evidence -- go away." Please comment on this in this venue.

[Twisted K 2]

I am all for this suggestion. However, we have decided to move on with our lives.

[Twisted K 2]

I am all for this suggestion. However, we have decided to move on with our lives.

If you need anything from me, let me know. Our case was received back in February of this year, so 6 months have not quite expired. I am flying back out to India (was just there in February) in May to get married. We are now planning for the CR1. Our case was sent back for lack of evidence, including no engagement ceremony. India let our case expire by not looking at our additional proof until after the expiration of the I-129f, which expired on December 4. Said they didn't believe our proof, and returned it back to the USA. I had contacted Senators, the embassy, and anyone else who would pretend to listen, and of no avail. When I saw the memo from ombudsman, we decided there was no point in waiting, and decided to make the wedding preparations. This time, I am making sure we have all of the documentation they requested in the 221g, and February's trip alone, we had over 400 pictures. I am sure we will double for our wedding I am changing my name on everything, and adding him as the beneficiary to all my insurance, etc. He is adding me in everything Indian. Just trying to dust ourselves off from this blow.

[ellis-island 6]

I am all for this suggestion. However, we have decided to move on with our lives.

If you need anything from me, let me know. Our case was received back in February of this year, so 6 months have not quite expired. I am flying back out to India (was just there in February) in May to get married. We are now planning for the CR1. Our case was sent back for lack of evidence, including no engagement ceremony. India let our case expire by not looking at our additional proof until after the expiration of the I-129f, which expired on December 4. Said they didn't believe our proof, and returned it back to the USA. I had contacted Senators, the embassy, and anyone else who would pretend to listen, and of no avail. When I saw the memo from ombudsman, we decided there was no point in waiting, and decided to make the wedding preparations. This time, I am making sure we have all of the documentation they requested in the 221g, and February's trip alone, we had over 400 pictures. I am sure we will double for our wedding I am changing my name on everything, and adding him as the beneficiary to all my insurance, etc. He is adding me in everything Indian. Just trying to dust ourselves off from this blow.

Going for a CR-1 after a refused & returned K-1 is not a bad idea. It is a bad idea in some consulates to simply

file another K-1. Whatever you do - do NOT withdraw the KI- that has been sitting there. Let it RIP.

I don't think my effort will bring any results by May. That's only 2 1/2 weeks away.

Good Luck,

m.e.

[Twisted K 2]

thank you. I was wondering if we were making the right decision. I did not think withdrawing the petition was a good idea either. we thought it would seem like we agreed with the consulate. thanks for your help. I hope u can get something done. the wait is bad enough without the additional setbacks. God bless u in your efforts!!

[Gary and Alla 3,694]

Hi.

It makes me kind of sad to have to do this, because I am a fan of USCIS. I practiced before district offices and in

service centers all over the United States. I still have a soft place in my heart for the lovely people at the New Orleans

District Office. They taught me everything I know.

I have great respect for the professionalism and training USCIS officers receive. But I think it's necessary to

seek an extraordinary remedy now with California Service Center. I think it is time to file requests for expedited

reviews of expired K-1 petitions that have been returned by consulates. They delays at CSC have become intolerable.

I don't hold the Service Center at fault. The problem is that consulates send back to many meritorious cases.

They often do not adjudicate visa applications under the correct "reasonable person" standard. And that is partly

because DHS has not trained them in what the "reasonable person" standard is.

(Yes - DHS - not DOS is responsible for administering the visa process and for training consular officers

in immigration law. See Sections 402 & 428 of the Homeland Security Act of 2002).

So if your K-1 has been refused by a consulate and you have beeen waiting for it to be reviewed by California Service Center,

for more than six months, you may want to contact me. marcellislaw@gmail.com . I can't say too much more. But I think expedited review based on two grounds, USCIS Error and it is in the Compelling Interest of USCIS to decide to formulate a clear policy on whether it is going to review

expired K-1's or it is not.

There has been a lot of confusion on the issue.

Back in 2007, the Congressional liaison of CSC was stating for the record that

the Center will not review expired K-1's and that the Petitioners are free to file again.

I have client emails to that effect.

On May 23rd, 2008, in the USCIS Response to the Ombudsman's Recommendation 33, the Acting Director of USCIS, Jonathan Scharfen echoed CSC policy when he wrote:

There are several situations where USCIS may not act on a specific returned petition.

For instance, K-1 petitions are temporally limited and may expire due to the passage of time.

According to 8CFR 214.2(k)(5), an approved K-1 petition is only valid for four months. Consequently, in a number of cases, the K-1 petition will have already expired by the time DOS returns it to USCIS. Once a petition has expired, it may not be reviewed by USCIS. Furthermore, Petitions for Alien Fiance(e) (Form I-129 F) returned from a Consulate, Embassy, or NVC after approval may not be revoked, as there are no provisions in the law or regulation for revoking the approval of an I-129F."

(page 2 USCIS Response to CISOMB Recommendation #33)

So to recap where we were:

(A) In 2007 there was officially no review of expired K-1 petitions returned by consulates at the CSC.

(B) In 2008, the Acting Director of USCIS stated that an expired petition may not be reviewed and that there was no provision in law or regulation to revoke the approval of an I-129F.

Still, consulates kept returning hundreds of these expired petitions to CSC, expecting some kind of review and either reaffirmation of the approval or a denial that dated back to the date of filing. Today, some consulates, like HCMC and Guangzhou are now taking the position that they will not approve a re-filed I-129F until they have received a ruling on the one that was previously returned to the Service Center.

So hundreds of expired K-1 petitions are in a black hole at CSC. I know of cases that have waited more than two years.

In late 2008, CSC appeared to have changed its policy and stated that it will start reviewing expired K-1 petitions. I also have a Congressional Liaison email to that effect. But no time is given. And no one yet, to my knowledge has seen such a review and there was no public announcement of the policy change to my knowledge.

Recognized grounds for expedited review at Service Centers include USCIS error and Compelling Interest of USCIS.

It's pretty obvious that there was an error somewhere. Either AD Scharfen was in error in his memorandum when he stated that expired petitions may not be reviewed. Or else the policy of reviewing expired petitions, and consulates sending them back, expecting them to be reviewed, is in error.

Somebody here has made a mistake.

This is a first step toward litigation. I've spoken to other lawyers from large firms about this. They agree. But they want to target DHS with the goal of getting DHS to train consular staff in proper adjudication standards. That would be great. But my immediate goal would be to get a decision on whether expired K-1 petitions can be reviewed or not. In 2007-2008, the answer was an emphatic no. Now it appears to be 'yes'.

I think CSC's previous policy and AD Scharfen's memorandum were correct on the issue. There is nothing in the law or regulations that justifies reviewing or revoking (denying to the date of approval), expired K-1 petitions.

But nobody has told Department of State. And DHS has the authority to lay down the law to DOS - but apparently, that's not going to happen. Therefore, the only route aggrieved petitioners have is at CSC first, and then go to the courts.

I'm planning on doing the expedited review requests pro bono. I'll need to be reimbursed for costs, such as Fed-Ex, translation costs, copying or other costs associated with the filing. If people want to hire me for the revocation or re-file, that can be agreed to later. There is no obligation.

There is no guarantee a request for expedited review will be granted. But in view of the plain errors here, it is certainly justified.

Finally, I'll consider myself a winner if I just get a reasonable time-frame out of CSC.

The root problem here, as everyone at VJ knows, is that consulates return too many good cases. They overwhelm the

Service Center staff resources. The reason is that DHS has failed to train consulates in proper standards of adjudication.

Unfortunately, the way the law is the law. Either there is a statutory and regulatory basis for reviewing expired K-1

petitions, or there is not. And too many petitioners have waited far too long to find out.

Hi

Advertising we are told, is against terms of service of this site and I have forwarded you advertisement to the Moderation team.

[TBoneTX 45,497]

Advertising we are told, is against terms of service of this site and I have forwarded you advertisement to the Moderation team.

I don't see this as an advertisement at all. For all we know, Mr. Ellis plans to gather support for a legal effort or a petition. Furthermore, Mr. Ellis is a resource on VJ. Gary, how long until your prolific, know-it-all blanket assumptions cause true harm to dozens of VJ members?

[Twisted K 2]

Advertising we are told, is against terms of service of this site and I have forwarded you advertisement to the Moderation team.

I don't see this as an advertisement at all. For all we know, Mr. Ellis plans to gather support for a legal effort or a petition. Furthermore, Mr. Ellis is a resource on VJ. Gary, how long until your prolific, know-it-all blanket assumptions cause true harm to dozens of VJ members?

well said, T Unless a person has gone/is going through this, it is hard to understand. We need all the help we can get. I am glad he is willing to help get something together.

[scandal 951]

Advertising we are told, is against terms of service of this site and I have forwarded you advertisement to the Moderation team.

I don't see this as an advertisement at all. For all we know, Mr. Ellis plans to gather support for a legal effort or a petition. Furthermore, Mr. Ellis is a resource on VJ. Gary, how long until your prolific, know-it-all blanket assumptions cause true harm to dozens of VJ members?

I am not familar with the OP, and I know Gary only by reputation from his many postings on VJ (where his anti-attorney reputation is legendary).

I also have no stake in the issue the OP raises (at least not yet, and I hope - never!).

However when I read the OP posting, my common sense told me this was a solicitation for business.

The two offending passages were:

1) In the body of the post: So if your K-1 has been refused by a consulate and you have beeen waiting for it to be reviewed by California Service Center,

for more than six months, you may want to contact me. marcellislaw@gmail.com .

2) In the signature: Don't bet your whole future on what you read

on a message board or in a chat room.

This is not legal advice. No attorney-client relationship is intended.

You should not infer one.It's information of general applicablity.

Do not take any action without first consulting a qualified immigration attorney in greater detail.

John Marcus "Marc" Ellis, Attorney

American Immigration Lawyers (AILA)

membership number 10373

That reads like advertising to me. Perhaps for a valid and useful service that VJ members could benefit from. But advertising nonetheless.

In this case I don't feel Gary is off base at all.

[TBoneTX 45,497]

Advertising we are told, is against terms of service of this site and I have forwarded you advertisement to the Moderation team.

I don't see this as an advertisement at all. For all we know, Mr. Ellis plans to gather support for a legal effort or a petition. Furthermore, Mr. Ellis is a resource on VJ. Gary, how long until your prolific, know-it-all blanket assumptions cause true harm to dozens of VJ members?

well said, T Unless a person has gone/is going through this, it is hard to understand. We need all the help we can get. I am glad he is willing to help get something together.

True, K. We don't know exactly WHAT Mr. Ellis is planning, but he is a knowledgeable ally. And, speaking of potential advertisements, what about this from a certain poster's signature?

Gary and Alla

Alla is fluent in Russian, Ukrainian, English. And can perform the valuable service to VJ members of document translations. Contact us if we can help.

Is THIS an advertisement?

Edited April 14, 2009 by TBoneTX

[scandal 951]

And, speaking of potential advertisements, what about this from a certain poster's signature?

Gary and Alla

Alla is fluent in Russian, Ukrainian, English. And can perform the valuable service to VJ members of document translations. Contact us if we can help.

Is THIS an advertisement?

Yes, it is. If OP is not complying with TOS, then the same can be said for Gary.