K1 Visa Denied - Petition is Expired

[u390007 0]

I am new to this and would like insight about what I should next in my case. My fiance was denied a visa with the reason that the petition was expired. Here's the background:

- My first marriage was in December 2003 and my then-husband came to the US in 2006 on I-130. We seperated in April 2008 and filed for divorce in April 2009. The divorce was finalised in Dec 2009.

- I met my current fiance in March 2009 on my trip to India. Then I went back to India in June 2010 and got engaged.

- Sent I-129F: 7/5/2010

- NOA1: 7/12/2010

- NOA2: 10/25/2010 (Approval Notice valid from 10/25/2010 to 02/25/2011)

- NVC sent petition to Mumbai Consulate: 11/12/2010

- My fiance didn't receive any correspondence regarding the case even after the petition validity expired. He tried to contact the consulate by calling as well as personally visiting the conulate inquiry office in January 2011, but he was asked to keep waiting.

- I emailed the consulate on 3/16/2011 and they said that they had mailed packet 3 back on 11/16/2010 - but my fiance had never received anything.

- My fiance submitted the relevant forms and papers. Then got Packet 4 and interview date of 5/2/2011. We assumed that they had extended the application validity.

- My fiance was interviewed for about 30 mins and after that he was told that the petition was expired.

- I contacted the consulate and explained the situation (citing that the CO has the powers to extend the petition per 9 FAM 41.81 N6.2). Their response was that the case was being returned to the USCIS.

Reading other folks' experiences, it sounds that I should not re-file for K-1 visa or even marry and file for CR-1 visa until I hear from USCIS.

I would appreciate any responses regarding what my options are.

[JimVaPhuong 4,863]

I think the consular officer was yanking his chain. If they had allowed the petition to expire then they wouldn't have scheduled an interview, and they certainly wouldn't have wasted 30 minutes with him. I think the consular officer was using his discretion to deny the visa, and was trying to give your fiance a little poke in the eye on his way out.

There's a lot of stuff I could write here, but instead I'm just going to give you some links to read. Hopefully, this will help prepare you for what your options are, and what the possible outcomes are. The first two are articles written my Marc Ellis, an immigration lawyer who is also a member of this forum:

http://www.ilw.com/articles/2006,0323-ellis.shtm

http://www.ilw.com/articles/2010,0713-ellis.shtm

This last one is a pinned thread in this forum, originally started by Marc Ellis, describing the tactics which are being used at the CSC service center in handling new petitions filed after an original K1 was allowed to expire:

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

[pushbrk 13,252]

I am new to this and would like insight about what I should next in my case. My fiance was denied a visa with the reason that the petition was expired. Here's the background:

- My first marriage was in December 2003 and my then-husband came to the US in 2006 on I-130. We seperated in April 2008 and filed for divorce in April 2009. The divorce was finalised in Dec 2009.

- I met my current fiance in March 2009 on my trip to India. Then I went back to India in June 2010 and got engaged.

- Sent I-129F: 7/5/2010

- NOA1: 7/12/2010

- NOA2: 10/25/2010 (Approval Notice valid from 10/25/2010 to 02/25/2011)

- NVC sent petition to Mumbai Consulate: 11/12/2010

- My fiance didn't receive any correspondence regarding the case even after the petition validity expired. He tried to contact the consulate by calling as well as personally visiting the conulate inquiry office in January 2011, but he was asked to keep waiting.

- I emailed the consulate on 3/16/2011 and they said that they had mailed packet 3 back on 11/16/2010 - but my fiance had never received anything.

- My fiance submitted the relevant forms and papers. Then got Packet 4 and interview date of 5/2/2011. We assumed that they had extended the application validity.

- My fiance was interviewed for about 30 mins and after that he was told that the petition was expired.

- I contacted the consulate and explained the situation (citing that the CO has the powers to extend the petition per 9 FAM 41.81 N6.2). Their response was that the case was being returned to the USCIS.

Reading other folks' experiences, it sounds that I should not re-file for K-1 visa or even marry and file for CR-1 visa until I hear from USCIS.

I would appreciate any responses regarding what my options are.

Your fiance should have been given something in writing before leaving the Consulate. Exactly what does that paper say?

[u390007 0]

Your fiance should have been given something in writing before leaving the Consulate. Exactly what does that paper say?

My fiance was handed a paper titled "The Foriegn Service of the United States of America Refusal Worksheet" (OF-194) with the box next to "Section 212(a)(5) (a) petition is expired" checked.

[pushbrk 13,252]

My fiance was handed a paper titled "The Foriegn Service of the United States of America Refusal Worksheet" (OF-194) with the box next to "Section 212(a)(5) (a) petition is expired" checked.

I see. He was interviewed for 30 minutes. I would have him write a detailed report of the interview experience including all the questions and the answers. The real reason for denial is likely to become evident from that report. Regardless of what happens next, the real reason must be addressed before you'll be together in the USA.

[JimVaPhuong 4,863]

My fiance was handed a paper titled "The Foriegn Service of the United States of America Refusal Worksheet" (OF-194) with the box next to "Section 212(a)(5) (a) petition is expired" checked.

212(a)(5)(A) actually has nothing to do with expired petitions - it has to do with labor certifications. Some consulates, including India, cite 212(a)(5)(A) when they don't have a specific inadmissibility to apply to the visa applicant. Here's another case where the same thing happened in India:

http://www.visajourney.com/forums/topic/300963-k1-visa-refused-under-section-212-a5a-for-invalid-petition/

In that case, the consulate sent an email explaining that the real reason for the refusal was that they didn't believe there was a valid relationship.

[pushbrk 13,252]

212(a)(5)(A) actually has nothing to do with expired petitions - it has to do with labor certifications. Some consulates, including India, cite 212(a)(5)(A) when they don't have a specific inadmissibility to apply to the visa applicant. Here's another case where the same thing happened in India:

http://www.visajourn...valid-petition/

In that case, the consulate sent an email explaining that the real reason for the refusal was that they didn't believe there was a valid relationship.

Yes, and that's the most likely reason in this case too but the interview detailed report is likely to reveal WHY the didn't believe there was a bona fide relationship.

[u390007 0]

212(a)(5)(A) actually has nothing to do with expired petitions - it has to do with labor certifications. Some consulates, including India, cite 212(a)(5)(A) when they don't have a specific inadmissibility to apply to the visa applicant. Here's another case where the same thing happened in India:

http://www.visajourney.com/forums/topic/300963-k1-visa-refused-under-section-212-a5a-for-invalid-petition/

In that case, the consulate sent an email explaining that the real reason for the refusal was that they didn't believe there was a valid relationship.

Thanks for pointing me to this. My case is somewhat similar except I don't have as many red flag situations (small ring ceremony, met my fiance almost a year after I separated from my ex and got engaged almost 6 months after divorce). At least I hope none of these threw red flags.

I am planning to contact my senator's office for help finding out the real reason behind the denial since we didn't get one from the Consulate. I am also checking with USCIS, but they say that they have not yet received the file - I will keep checking with them periodically and ask for an explanation.

[u390007 0]

Yes, and that's the most likely reason in this case too but the interview detailed report is likely to reveal WHY the didn't believe there was a bona fide relationship.

I am going to get this from my fiance. He had noted down all the questions - I hope he remembers his responses also. If I get an official explanation from USCIS/DOS/Consulate with help from my Senator's office, I think that would be helpful in determining what to do next.