K1 Visa refused under section 212 (a)(5)(a) for invalid petition

[sachinky 464]

Here. You might find these links helpful.

http://www.visajourney.com/forums/topic/245030-k1-noids-at-california-service-center/page__p__3765493#entry3765493

http://www.visajourney.com/forums/topic/263575-my-visa-was-denied-and-send-back-to-nvc/

Keep us updated, ya?

Pertinent portion from Marc's post.

Concerning the labor-certification rationale for a family visa refusal, a consular officer in Guangzhou wrote:

Quote

Visa Officer Marc Cook: 212(a)(5)(A) is a proper ground of refusal for IV applicants who are determined not to be eligible for the IV category under which they have applied. For example, it is used to refuse family-based IV applicants when it is determined that the requisite family relationship does not exist (e.g., a marriage to circumvent immigration law, or DNA tests establish lack of paternity/maternity). A 212(a)(5)(A) refusal is appropriate in these cases because, once the alien no longer falls within a family-based IV category, the alien is no longer exempt from the labor certification requirement that would otherwise normally apply to immigrant applicants.

So DOS uses 212(a)(5)(A) as a ground to refuse a family or K1 visa. It doesn't seem logical. But make a note

of it and save it for future reference. In my experience, these are not fatal. They are somewhat analogous to 221(g)

refusals and they can eventually be overcome.

[bubbleout 0]

ANOTHER NEWS,

I got an letter from my senator Barbara Boxer. Because I got her office involved into the case.

New Delhi visa cheif emailed her office and said the same story that visa was refused and petition

was sent back to NVC. But addition to that they also said the visa was refused because "There were serveral

areas of concerns including that Ms.__________had first met the petitioner in 2008 when he had not yet divorced

his first wife. So that make our relationship invalid".

I have no idea what were they thinking. No offence to anyone but how many men in this world have secert affairs while

married and then end up getting the divorce from first marriage and remarry to the one they are in love with.

We are honest enough to tell them the truth. We are the one who told the emabassy in our statement, how we met and when?.

I guess being too honest also dose not pay. I think what they are thinking is that I got married to my fiance while pending

divorce and then got the divorce and filed I-129f and avoided getting married after divorce and trying to save time.

Please give me your views guys and tell me what you think is going on. Very very confusing sitiuation here.

They dont even want to be clear for the reason of denial because they don't have one.

[sachinky 464]

For some reason, this seems to be a big deal in certain countries like India and Vietnam. I know a few petitioners who had to face adverse situations because they had met the beneficiary while still married to their spouses. May be some of them will chime in and offer their experience/perspective. Some of them were placed in AP post-interview but I can't remember anyone being denied off the top of my head. I don't know if it's being judged from a 'moral' standpoint but rather I think the CO's perspective is that how could you have a bona-fide relationship with your now fiancee if you were also in a relationship with your wife at that time.

Also, filing your petition the day after your divorce is final is a huge red flag. To anyone else in a similar situation, you really should wait at least four-six months before you file.

Just my two cents.

Edited March 19, 2011 by sachinky

[pushbrk 12,302]

ANOTHER NEWS,

I got an letter from my senator Barbara Boxer. Because I got her office involved into the case.

New Delhi visa cheif emailed her office and said the same story that visa was refused and petition

was sent back to NVC. But addition to that they also said the visa was refused because "There were serveral

areas of concerns including that Ms.__________had first met the petitioner in 2008 when he had not yet divorced

his first wife. So that make our relationship invalid".

I have no idea what were they thinking. No offence to anyone but how many men in this world have secert affairs while

married and then end up getting the divorce from first marriage and remarry to the one they are in love with.

We are honest enough to tell them the truth. We are the one who told the emabassy in our statement, how we met and when?.

I guess being too honest also dose not pay. I think what they are thinking is that I got married to my fiance while pending

divorce and then got the divorce and filed I-129f and avoided getting married after divorce and trying to save time.

Please give me your views guys and tell me what you think is going on. Very very confusing sitiuation here.

They dont even want to be clear for the reason of denial because they don't have one.

First, I'm not saying the Consulate was right but you must understand that in some of the high fraud countries, a common fraud scenario is one or both of the parties obtains a false divorce, so they can marry and assist the foreign couple in reuniting in the USA some time later. Not you? OK, but you better believe this is a common scenario and India is one of those countries where it happens.

Second, this would have been ONE of SEVERAL areas of concern. As a result, your use of "So that...." would be inappropriate. It would be "that" and the several other factors that lead to a conclusion that may will be incorrect but it was several areas of concern, not just the one. You probably know what most, if not all, the other areas of concern were too. If not, a detailed report of the interview questions and answers is likely to reveal most of those concern areas.

[R.&S. 2]

Our case was refused and the following email was sent

ear Applicant,

As per the U.S Embassy please note that there is no definite time frame for administrating processing as it depends on the individual circumstances of each case. It is not unusual to ask applicants to provide additional documentary evidence of proof of their relationship and independently verify certain information presented by the applicant by Post to ascertain eligibility for a fiancé visa. It is a part of the process to make sure that we are issuing visas to people who actually meet the eligibility criteria.

Ms. _________ was interviewed for a fiancé visa on January 19, 2011. The visa interview and a consular investigation into the case confirmed that that the petitioner and beneficiary do not have a valid relationship to qualify for a K1 visa. This visa application was refused under Section 212(a)(5)(a) of the Immigration and Nationality Act (INA) for an invalid petition. Ms. ______ petition was returned to National Visa Center (NVC) on March 8, 2011. Once NVC receives the petition, it returns it to the approving office of the United States Citizenship and Immigration Service (USCIS) for review and possible revocation. Please direct all future inquiries regarding this case to the approving USCIS office.

I AM VERY UPSET AND DON'T KNOW WHAT TO DO,, ANYONE HAD A SAME PROBLEM OR ANYONE KNOW ANYTHING ABOUT THE 212 (a)(5)(a). Please reply back and tell me what can I Do......

I feel sorry for you . I had the same denial(INA 212(a)(5)(a)) at New Delhi Embassy on Jan 11th after my K1 interview on Oct 12th.

We met in Aug.2008 and had almost three years relationship. Still refused, planning to reapply a new fresh Petition.

[hobokenworkingman 4]

ANOTHER NEWS,

I got an letter from my senator Barbara Boxer. Because I got her office involved into the case.

New Delhi visa cheif emailed her office and said the same story that visa was refused and petition

was sent back to NVC. But addition to that they also said the visa was refused because "There were serveral

areas of concerns including that Ms.__________had first met the petitioner in 2008 when he had not yet divorced

his first wife. So that make our relationship invalid".

I have no idea what were they thinking. No offence to anyone but how many men in this world have secert affairs while

married and then end up getting the divorce from first marriage and remarry to the one they are in love with.

We are honest enough to tell them the truth. We are the one who told the emabassy in our statement, how we met and when?.

I guess being too honest also dose not pay. I think what they are thinking is that I got married to my fiance while pending

divorce and then got the divorce and filed I-129f and avoided getting married after divorce and trying to save time.

Please give me your views guys and tell me what you think is going on. Very very confusing sitiuation here.

They dont even want to be clear for the reason of denial because they don't have one.

Good advice from sachin above and the rest of the posters. I think the one thing you can do to shore up the bonafides of your relationship regardless as to when you met is indeed to get married. While it may take several more months, I would probably withdraw the K-1 and go with the CR-1 (I-130). At least in your personal life, dont let a stupid ruling like that put your lives on hold. I'd move on and get married. Yes w/d the current application would cost you more time, but I think w/ the complexities involved in your case, you may end up spending more time and money hiring a lawyer with dubious outcomes. I wish you the best of luck - looks like Delhi embassy is clamping down on K-1s even more strictly than ever...

[bubbleout 0]

I would like to Thank everyone who have replied to my thread an tried to give much

information is possible. But after reading all of the messages, and talking to Immigration

attorneys including Marce Ellis, I have came to a decision to withdraw the I-129f petition

and go to India get married and then refile the new I-130. This is very stupid reasons

for the embassy office to denied the case that my fiancee met me before I was divorce.

The Section for denying the visa was used is not the right section either. After doing my

own investigation, it seems to me American Embassy New Delhi don't want to issue K1 visas at

all. I have not seen lately anyone who is getting K1 visa from New Delhi.

Why the USCIS even approve I-129f petitions if Department of State is going to deny them for the

stupid reasons and send back to the USCIS for review and make the case load for the USCIS employee,

which end up delaying the other area of immigration petitions. Department of State is also making

the U.S.Citizen to spend more money then they should by going through the two rounds of visa process.

I hope this won't happen with someone else. Guys be careful.

[hobokenworkingman 4]

I would like to Thank everyone who have replied to my thread an tried to give much

information is possible. But after reading all of the messages, and talking to Immigration

attorneys including Marce Ellis, I have came to a decision to withdraw the I-129f petition

and go to India get married and then refile the new I-130. This is very stupid reasons

for the embassy office to denied the case that my fiancee met me before I was divorce.

The Section for denying the visa was used is not the right section either. After doing my

own investigation, it seems to me American Embassy New Delhi don't want to issue K1 visas at

all. I have not seen lately anyone who is getting K1 visa from New Delhi.

Why the USCIS even approve I-129f petitions if Department of State is going to deny them for the

stupid reasons and send back to the USCIS for review and make the case load for the USCIS employee,

which end up delaying the other area of immigration petitions. Department of State is also making

the U.S.Citizen to spend more money then they should by going through the two rounds of visa process.

I hope this won't happen with someone else. Guys be careful.

While it might take more time, I think you're doing the right thing. Btw, when you do apply for the I-130, I would consider running your situation by a lawyer. If you can set the proper frame up front with the I-130, then perhaps you may be able to circumvent any issues. Best of luck!!!!!

[sachinky 464]

Wish you both all the very best.