Withdraw I-129f

[LoosingHope 0]

I have a question regarding withdrawing 1-129f and getting married and filing an I-130. I filed a 1-129f 5 years ago and my fiancee was denied visa at the interview with misrepresentation with no explanation of the misrepresentation or given the oppurtunity for a waiver. She was EWI with vouluntary departure. The petition was sent back and sent for revocation . The petition was eventually cancelled by USCIS . We now filed a 1-129f for a second time but have decided that we want to get married now and file a I-130 as it seems that the consulates are picky with fiancee petitions and we have waited so long. Does anyone know what I have to do to withdraw the I-129f . Do I have to wait to get married to finalize the withdraw and then file the I-130 or can I just get married file the I-130 K1 with both petitions active. I assume I will have to file for a waiver as this would be the third filing for my fiancee. Any help would be appreciated.

[belinda63 2,981]

You would need to cancel the K-1.

The big, big, big issue you have is the misrepresentation. You really need to find out what this was as it can result in a LIFE-TIME ban with no waiver available. Since you say with the first K-1 she was given no opportunity to file a waiver I am pretty sure this is what it was. Did she at any time represent herself as a US citizen say for school or work? If so no waiver is available for her and she will not be permitted to obtain ANY visa to the US.

As to the I-130 you must be married prior to filing for the CR-1 visa but again, I would find out exactly why the K-1 was denied or you may just be flushing your money down the toilet.

[TracyTN 237]

Agreed. Getting married doesn't overcome the misrep. I would get an attorney to look over your case, including the K1 denial, and see what (if any) way forward you can go. I'd be surprised if there wasn't some record somewhere of what the exact misrepresentation was.

[JimVaPhuong 4,863]

Was she offered voluntary departure by immigration authorities, or do you mean she just simply left on her own without being caught by immigration authorities? Did she fail to disclose her illegal presence on any of the documents that were submitted? If so, then that is probably where the misrepresentation comes from. Many people mistakenly believe that if they leave on their own that nobody will know they were here, so they don't have to disclose it later. They discover the hard way that you don't have to be hauled off in handcuffs in order for US immigration authorities to be aware that you're in the US illegally.

Immigration lawyers call this a "P6C", referring to paragraph 6C of section 212 of the INA, which applies to misrepresentation. There is no specific duration of the ban for a P6C. The alien is inadmissible effectively forever, which is why this is often referred to as a lifetime ban. Getting married is not going to make one bit of difference - she will still be inadmissible, and the spousal visa will be denied.

A P6C inadmissibility IS eligible for a hardship waiver. The waiver application is submitted by the US citizen petitioner within a specific period of time after the visa is denied at the consulate. I won't blow smoke up your skirt - these waivers are very difficult to get. Your chances are no better with a spousal visa then they are with a fiancee visa. You, the US citizen, have to convince the consulate that it will be an extreme hardship on YOU if her visa is not approved.

There's not much point in switching gears now, and trying for a spousal visa. Let the new K1 run it's course, and be ready to submit the hardship waiver when she's denied the visa at the interview. I strongly urge you to hire a good immigration lawyer who specializes in hardship waivers. This really isn't the sort of thing that you should attempt to do on your own unless you're willing to dedicate some serious time to becoming an expert on hardship waivers.

[LoosingHope 0]

Thanks for all your replies. My Fiancee did leave with vouluntary departure under an order fom the immigration courts. We were never given a reason for the misrepresentation as I guess they don't have to tell what it was for. So we are at a lost as to why. She never applied for a visa before other than her first interview ; so we don't know why we were never given the oppurtunity for a waiver . We have contacted Senators when she had her first interview but the paperwork was still sent back and was in review for 2 years and eventually canceled. Therefore we filed again but wanted to get married and send in the I-130 . It seems that is doesn't matter which way we file but have to overcome the misrep part. Any other info would be appreciated.

[JimVaPhuong 4,863]

Thanks for all your replies. My Fiancee did leave with vouluntary departure under an order fom the immigration courts. We were never given a reason for the misrepresentation as I guess they don't have to tell what it was for. So we are at a lost as to why. She never applied for a visa before other than her first interview ; so we don't know why we were never given the oppurtunity for a waiver . We have contacted Senators when she had her first interview but the paperwork was still sent back and was in review for 2 years and eventually canceled. Therefore we filed again but wanted to get married and send in the I-130 . It seems that is doesn't matter which way we file but have to overcome the misrep part. Any other info would be appreciated.

When a US consulate denies a visa they are supposed to give the applicant a detailed explanation why the visa was denied. This isn't the law, but it is Department of State policy. When USCIS intends to revoke the approval of a petition they are supposed to send the petitioner a notice of intent and give the petitioner an opportunity to rebut the decision. Again, not the law but it is Department of Homeland Security policy. Normally, the details for denying a visa are considered confidential under INA section 222, but you can probably get at least some information by filing a Freedom of Information Act request. You need to know precisely why the visa was denied and the approval of the petition ultimately revoked. Without this knowledge, you won't know if she's even eligible for a hardship waiver.

Follow the instructions for this form in order to file a FoIA request for your previous K1 case:

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=6f2a4154d7b3d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD

You have two possible courses of action, that I can think of. You can try to get the P6C decision overturned by going through the appeals process with USCIS, or you can apply for a hardship waiver after her next visa is denied. In either case, I really think you need a good immigration attorney. This is a bit beyond the scope of a self-help forum like this one.

[LoosingHope 0]

Thanks for all your replies. My Fiancee did leave with vouluntary departure under an order fom the immigration courts. We were never given a reason for the misrepresentation as I guess they don't have to tell what it was for. So we are at a lost as to why. She never applied for a visa before other than her first interview ; so we don't know why we were never given the oppurtunity for a waiver . We have contacted Senators when she had her first interview but the paperwork was still sent back and was in review for 2 years and eventually canceled. Therefore we filed again but wanted to get married and send in the I-130 . It seems that is doesn't matter which way we file but have to overcome the misrep part. Any other info would be appreciated.

Thanks again for the reply. I actually did file a FOIA request but all I recieved was information pertaining to her court apperance here In the U.S. for voluntary departure. I asked for info regarding her visa interview but there was none . I see by the link posted that this form is different than the one I submitted. It may be why I filed with the office for immigration review in Virginia . I may try this route. I was never sent any letter of Intent to revoke ; The only thing I recieved was the letter stating that the service center recieved the revocation from the consulate and that it would be reviewed. Then almost 2 years later ; I recieved a letter that the petition was canceled witout predjudice to further filings. Thanks.

[pushbrk 12,240]

Thanks again for the reply. I actually did file a FOIA request but all I recieved was information pertaining to her court apperance here In the U.S. for voluntary departure. I asked for info regarding her visa interview but there was none . I see by the link posted that this form is different than the one I submitted. It may be why I filed with the office for immigration review in Virginia . I may try this route. I was never sent any letter of Intent to revoke ; The only thing I recieved was the letter stating that the service center recieved the revocation from the consulate and that it would be reviewed. Then almost 2 years later ; I recieved a letter that the petition was canceled witout predjudice to further filings. Thanks.

So what does your fiancee think she lied about? In my experience, findings of misrepresentation of a material fact are usually about something people know they misrepresented. I could very well be the answer is in one or both of your heads and that may be the best answer you're ever going to have.

If you change your thinking from "What lie do they think they caught me in?" to "What might I have written or said that wasn't true?" and still have no answer, you're really stuck.

Edited June 22, 2010 by pushbrk

[JimVaPhuong 4,863]

Thanks again for the reply. I actually did file a FOIA request but all I recieved was information pertaining to her court apperance here In the U.S. for voluntary departure. I asked for info regarding her visa interview but there was none . I see by the link posted that this form is different than the one I submitted. It may be why I filed with the office for immigration review in Virginia . I may try this route. I was never sent any letter of Intent to revoke ; The only thing I recieved was the letter stating that the service center recieved the revocation from the consulate and that it would be reviewed. Then almost 2 years later ; I recieved a letter that the petition was canceled witout predjudice to further filings. Thanks.

Ok, this makes a HUGE difference! This is not the same as having the approval of the petition revoked. Your petition was administratively closed. There may still be a P6C marker in your fiancee's file, but at this point it amounts to only an accusation by the consular officer. It's not a finding of fact unless USCIS makes a decision, and it appears they've decided not to do that - at least not yet.

The California and Vermont service centers have a history of handling returned petitions differently. The California service center was routinely closing returned petitions without adjudicating them, citing that the petition had expired, and saying that the petitioner was free to file again. The Vermont service center was often adjudicating returned petitions and either reaffirming them or sending out notices of intent to revoke or deny the approval (called a NOIR or NOID). It seems unusual for them to sit on a returned petition for two years before deciding to close it without adjudicating it, but anything is possible. California has recently changed their tactics, and they've been issuing NOID's on the second petition, citing the consular officer's reasons for denying the first visa application. This is AFTER they sent the petitioner a notice that the petition had expired, and they were free to file again. So far, I've only heard of one case where a similar tactic was used by the Vermont service center. It's possible they may be standardizing tactics between the two service centers, though.

Anyway, there are a number of possibilities here.

The best possible scenario is that USCIS will not issue a NOID on the second petition, it will be approved and forwarded to the consulate, and your fiancee will get another shot at a new interview. Hopefully, there will be no P6C marker in her file, and no hardship waiver will be required.

You may receive a NOID on your second petition. The reasons cited on the NOID will be the consular officer's reasons for denying the first visa application. You will have a limited time to respond to this NOID, but you MUST respond to it. If you do not respond to it, or if your response fails to convince USCIS and they deny the petition, then the accusation by the consular officer becomes a finding of fact - your fiancee is found to have committed fraud, and is inadmissible for life.

Immigration attorney Marc Ellis has started a thread about this tactic here:

http://www.visajourney.com/forums/topic/245030-k1-noids-at-california-service-center/

Another possibility, which is potentially much worse, is that the petition will be approved and forwarded to the consulate, but the consulate will refuse to take action on it because of the P6C marker left over from the first petition. They'll sit on the second approved petition waiting for a final decision by USCIS, and that final decision will never come because USCIS closed the first petition without adjudicating it. Apparently, some people had to actually sue USCIS in order to get out of this limbo state.

But, as was said before, an inadmissibility is an inadmissibility. It makes no difference what kind of visa the applicant is applying for. If there is a P6C marker in her file then it will eventually have to be addressed or a hardship waiver approved before she'll get a visa.