Returning Petitions to the United States via 221g

[chiquita 0]

Will do! Thanx!

Limah

link to amended return info>>>>

http://www.irs.gov/taxtopics/tc308.html

Topic 308 - Amended Returns

If you discover an error after your return has been mailed, you may need to amend your return. The service center may correct errors in math on a return and may accept returns with certain forms or schedules left out. In these instances, do not amend your return!

However, do file an amended return if any of the following were reported incorrectly:

your filing status

your total income

your deductions or credits

Use Form 1040X (PDF), Amended U.S. Individual Income Tax Return, to correct a previously filed Form 1040 (PDF), Form 1040A (PDF), Form 1040EZ (PDF), Form 1040NR (PDF), or Form 1040NR-EZ (PDF). If you are filing to claim an additional refund, wait until you have received your original refund (you may cash that check). To avoid penalty and interest, if you owe additional tax for a current year amended return, file Form 1040X and pay the tax by April 15 of the current year. If the due date falls on a Saturday, Sunday, or legal holiday, the due date is delayed until the next business day (i.e., Tax Year 2006 is due April 17, 2007).

File a separate Form 1040X for each year you are amending. Be sure to enter the year of the return you are amending at the top of Form 1040X. The form has three columns. Column A is used to show original or adjusted figures from the original return. Column C is used to show the corrected figures. The difference between the figures in Columns A and C is shown in Column B. There is an area on the back of the form where you explain the specific changes being made on the return and the reason for each change. If the changes involve another schedule or form, attach it to the 1040X. For example, if you are filing a 1040X because you have a qualifying child and now want to claim the Earned Income Credit, you must attach a Form 1040 Schedule EIC (PDF) to show the qualifying person's name, year of birth, and social security number.

Generally, to claim a refund, Form 1040X must be filed within 3 years from the date you filed your original return or within 2 years from the date you paid the tax, whichever is later.

If you are filing more than one amended return, be sure to mail each in a separate envelope to the service center for the area in which you live. The Form 1040X Instructions list the addresses for the service centers.

Please Note: Your state tax liability may be affected by a change made on your federal return. For information on how to correct your state tax return, contact your state tax agency.

[limah 1]

Got news that Abdels I-130 was returned to the CSC with a prioority date of June 2, 2006........ The date on the notice is March 23rd from NVC.

Whass dat all about? I'm gonna call 'em on monday to see whats going on.... Buuuut of course Im looking for some feedback here too. Thanx.

Limah

[morocco4ever 63]

I'm not sure, but it sounds like the date the CSC has issued you. Similar to when you initially applied for the CR1, but this priority date is for them to readjudicate your case. Our second priority date was 12/19/05, and they finally readjudicated it in August of 2006. How far did you get in processing the CR1?

[limah 1]

I'm not sure, but it sounds like the date the CSC has issued you. Similar to when you initially applied for the CR1, but this priority date is for them to readjudicate your case. Our second priority date was 12/19/05, and they finally readjudicated it in August of 2006. How far did you get in processing the CR1?

Well, our priority date is of last year. Could that be a mistake? Ok, now that u mention it, I do think that June 2, 2006 is the date on one of the NOA's. Will have to verify that when I get home, but I am pretty sure. As far as the processing of the CR-1, DONE! I also got an email back from NVC saying they had received everything. When u stop into the other group... I posted it all there.

That's a whole 'nother year and some change between your readjudication and your husband actually coming home! Thats crazy.

I was reading in one of the other threads and I read that your father passed away, V.I.H. I am truly sorry for you loss.

Limah

Edited April 7, 2007 by limah

[limah 1]

I'm not sure, but it sounds like the date the CSC has issued you. Similar to when you initially applied for the CR1, but this priority date is for them to readjudicate your case. Our second priority date was 12/19/05, and they finally readjudicated it in August of 2006. How far did you get in processing the CR1?

Well, our priority date is of last year. Could that be a mistake? Ok, now that u mention it, I do think that June 2, 2006 is the date on one of the NOA's. Will have to verify that when I get home, but I am pretty sure. As far as the processing of the CR-1, DONE! I also got an email back from NVC saying they had received everything. When u stop into the other group... I posted it all there.

That's a whole 'nother year and some change between your readjudication and your husband actually coming home! Thats crazy.

I was reading in one of the other threads and I read that your father passed away, V.I.H. I am truly sorry for you loss.

Limah

Hello?

Well, I called uscis and was told that I have to wait 120 days from the day they got the petition back which is basically 3 months from now. Acording to the lady at Immigration, if it isnt reviewd by then to call back. I am 100% certain I will be calling back. Can ANYBODY hook me up on what I can expect next? Am waiting on the letter to revoke/deny or the letter to submitt more evidence?

Oh GOD my head hurts!

Limah

[brnidokiegurl 0]

Quick question i have ask a few but guess they are no longer online. On the k1 deny to be sent back, beings casa is supposed to be so slow and now from what ive heard and read california just lets them expire anyway. Am i assuming, mine which expires 6-6-07 anyway being slow to come back, will be expired, then if no notice is sent....... so after expires date are we free to refile again or is there something that we HAVE to have before we can start the process.

[chiquita 0]

Hello?

Well, I called uscis and was told that I have to wait 120 days from the day they got the petition back which is basically 3 months from now. Acording to the lady at Immigration, if it isnt reviewd by then to call back. I am 100% certain I will be calling back. Can ANYBODY hook me up on what I can expect next? Am waiting on the letter to revoke/deny or the letter to submitt more evidence?

Oh GOD my head hurts!

Limah

yes you are now waitng to receive the NOIR.

the NOIR will be telling you why they want to revoke your petition.

i was told to be proactive. make copies of my proofs and send them in to the USCIS office where my case is. i did this along with a letter explaining what happened and why i was sending the proofs. i sent my package so someone had to sign for it as proof of delivery so the USCIS could NOT say they did not receive it.

after i received the NOIR letter i was prepared to answer it. i had been wotking on it all along. of course it was just a draft but i wanted all my ideas down and ready to go.

basically you will be responding to any CFR that they and the CO believe cause you not to be eligable for a visa. then there is 8 CFR 103.2(B)(16) "Applications, petitions, and other documents" that is the golden one we can all use to overcome the CO's accusations.

in the meantime keep up collecting your proofs. keep a paper trail of everthing you have done to try working with casa to prevent your case from being returned. you want to show USCIS that you tried and yet casa turns a deaf ear.

chi

[morocco4ever 63]

Quick question i have ask a few but guess they are no longer online. On the k1 deny to be sent back, beings casa is supposed to be so slow and now from what ive heard and read california just lets them expire anyway. Am i assuming, mine which expires 6-6-07 anyway being slow to come back, will be expired, then if no notice is sent....... so after expires date are we free to refile again or is there something that we HAVE to have before we can start the process.

Each service center does things differently. I don't know about Texas, but CSC sends a notice stating it is expired. Once you have received notice then you are free to file again, but never under any circumstances refile until some sort of resolution has happened with the denied K-1.

[brnidokiegurl 0]

Ok so is it Texas or Calif ? here is the entry i saw from just today on expired petitions:

" saying that they had been contacted by CSC and was informed they DO NOT send out noid letters and that all the petitions are EXPIRED by the time they are sent back, and I could reapply (start all over)

This was just posted today the reason i ask, i understand the waiting, but if they dont sent anything by the expired date, its expired period. Then can we reapply

[chiquita 0]

Ok so is it Texas or Calif ? here is the entry i saw from just today on expired petitions:

" saying that they had been contacted by CSC and was informed they DO NOT send out noid letters and that all the petitions are EXPIRED by the time they are sent back, and I could reapply (start all over)

This was just posted today the reason i ask, i understand the waiting, but if they dont sent anything by the expired date, its expired period. Then can we reapply

this refers to fiance 1-29 petitions only.

if you filed in tx and it was sent to ca then ca will get your returned petition.

the reason you must have proof of the service center rejection is becuz casa put a note in your husbands passport and they also have your petition filed. you need USCIS to confirm so that there is a mark removed.

chi

please read here>>>

http://www.ilw.com/search/documentFrame.asp?Request=marc+ellis&nPage=1&sort=Date&MaxFiles=25&Fuzzy=&Phonic=&Stemming=Yes&NaturalLanguage=No&HitNum=8&cmd=getdoc&DocId=3030&Index=%5c%5cilw%5cwwwroot%5cdtSearch%5cILW%20Web%20site&HitCount=4&hits=34+35+df8+df9+&hc=3456&req=marc+ellis

PART OF ARTICLE:

9 FAM 41.81 N6.2 also mandates that if the consular officer does not believe the couple intentions, at the interview, he or she must return the already expired petition approval with an explanation to DHS.

What is the point of returning an expired petition to a DHS Service Center? It’s hard to say. Perhaps it’s simply an information exchange between the two agencies or perhaps it’s professional courtesy. But this is a part of the process that poses great danger for petitioners. This is the place in the process where a 212(a)(6)©(i)[1] Misrepresentation trap has been set by the FAM

Our beneficiary at this point is in danger of having a finding of misrepresentation entered into her record, even if neither she nor the petitioner have actually misrepresented anything.

40.63 N10 Miscellaneous

40.63 N10.1 Misrepresentation in Family Relationship Petitions (TL:VISA-313; 08-27-2001)

Pursuant to 8 CFR 205, invalidation of a labor certification for fraud in accordance with the instructions of INS or the Department of State automatically revokes an employment-based immigrant visa petition. On the other hand, INS retains exclusive authority to disapprove or revoke family-relationship immigrant visa petitions. Thus, a misrepresentation with respect to entitlement to status under a family-relationship petition, e.g., document fraud, sham marriage or divorce, etc., cannot be deemed material as long as the petition is valid. Upon discovery of a misrepresentation, the consular officer must return the petition to the INS office having jurisdiction over the petitioner's place of residence [see 22 CFR 42.43.] If the petition is revoked, the materiality of the misrepresentation is established.

Note the last words of 9 FAM 40.63.N10: “If the petition is revoked, the materiality of the misrepresentation is established.

This will slip by a lot of people. But a beneficiary who fails to satisfy the consular officer’s interpretation of the “Reasonable Person” as set out in 9 FAM 42.43 N2.2(3) according to this part of the FAM may have made a misrepresentation with respect to entitlement of status .

This is a very aggressive position DOS has taken on Misrepresentation. Why? Go back to the February 2004 cable I cited earlier in the article. It is not supposed to be easy for consular officers to return approved family immigrant visa petitions. There is a very heavy burden placed on consular officers who wish to recommend revocation to DHS. It is apparently the Department of State’s position that no officer will return an approved petition without the required specific evidence of ineligibility of which DHS was not aware.

So when the consulate returns our petitioner’s approved K-1 petition to USCIS, it will put a 212(a)(6)©(1) marker, called a “P6C1” marker, or a “quasi-refusal” in the beneficiary’s record. If DHS decides at a later date to revoke that petition, a hard 212(a)6©(i) finding can kick in.

Lawyers – Be Careful Here!

Now in many cases where a K-1 has been delayed, refused or denied at a US Consulate, lawyers have advised clients to simply get married and file and I-130. That is not good advice, unless the attorney also advises the petitioner to pay close attention to the K-1 that has been sent back to the Service Center from the consulate.

If a Service Center begins a revocation proceeding for that K-1 petition, a petitioner’s failure to respond will mean that DHS will revoke the approval of the petition. When that happens, the 212(a)(6)©(i) that is pending in our beneficiary file, will become hard finding of Misrepresentation, under 9 FAM 40.63 N10.1 (above).

A Rude Surprise at the Second Consular Interview

Our love birds have followed their lawyer’s advice and forgotten about the K-1 petition. A NOID (Notice of Intent to Deny) letter comes in the mail and petitioner calls his lawyer. The lawyer says,

“Don’t worry about it. She’s your wife now. The K-1 petition is irrelevant.”

The lovebirds have taken the plunge and married. The petitioner has made another costly visit to the foreign country; bought another round trip airplane ticket, and maybe he has even sprung for a costly wedding ceremony.

An I-130 Petition for his new bride has been filed. And it is approved by the DHS Service Center. What will happen when his new wife appears at the US Consulate for her next interview?

Because the petitioner did not respond to the K-1 revocation notice, the beneficiary has a 212(a)(6)©(i) finding on her record. Even if the petition for her is approved, she is permanently barred from entering the US, unless she can obtain a waiver to that ground of inadmissibility.

What specific misrepresentation has this couple made? According to the section of the FAM cited above, it could be a generalized misrepresentation with respect to her entitlement to the K-1 status. She failed to satisfy the “Reasonable Person” Standard, and that has been boot-strapped more or less into a finding of Misrepresentation by the consulate.

If that seems counter-intuitive, if it seems strange to enter a finding of Misrepresentation under INA 212(a)(6)©(i), when no actual misrepresentations have been made, look at it from the perspective of DOS. There is a heavy burden placed upon consular officers before they can return a petition. They are not allowed to return a petition and recommend revocation for 221(g) reasons. Insufficiency of documentary evidence is not a reason for recommending that a DHS-approved family petition be revoked. Therefore, at least the way consulates views it, somebody must have made a misrepresentation somewhere with respect to the beneficiary’s entitlement to K-1 status.

What exactly was the misrepresentation? Nobody seems to know. DOS doesn’t give you a specific answer. The lawyer doesn’t know. And most importantly, the petitioner and beneficiary are clueless. They’re in sort of a Kafkaesque position. They’re accused of misrepresenting something. But nobody tells them exactly what they have misrepresented. This problem could have easily been avoided if the petitioner had simply responded to the NOID letter and argued the merits even though the couple had married.

PRACTICE TIP #2 - Respond to everything! Even if it doesn’t make sense, even if it’s no longer relevant, respond to it!

Now here is where it gets tricky. DHS probably does not even know about the 212(a)(6)©(i) finding that has been entered into the beneficiary’s record by DOS.

The approval for the K-1 petition has long since expired by the time the consulate has sent it back.

In my experience, different USCIS Service Centers handle K-1 revocations in different ways. I have seen Vermont and Nebraska notify the petitioner at once and give him or her 60 days to submit rebuttal evidence. I have seen California and Texas give a petitioner only 30 days to respond.

But I have also seen USCIS Service Centers not even use the revocation process for returned K-1 petitions. I have seen I-797 notices mailed to petitioners informing them that the petition was returned from the Consulate and that the approval for the petition has expired. California and Texas Service Centers seem to have at least a quasi-policy of not sending out NOID letters unless the petitioner requests one.

What about that Misrepresentation finding that is hanging in our beneficiary’s record? We know that it kicks in upon revocation. So is the petition approval revoked when a Service Center simply notifies a petitioner that the approval has lapsed, without giving her or him a chance to respond? No. Consular Immigrant Visa Chiefs are supposed to make sure that a revocation has in fact taken place before the 212(a)(6)©(i) marker becomes a finding.

What if Petitioner simply withdraws the petition after the consulate sends it back?

The regulations are rather unformed on this question. The aggressive stance DOS has taken toward Misrepresentation would lead me to err on the side of caution. If the petitioner has a chance to respond to an NOIR letter, this aggressive position might lead to a 212(a)(6)© finding entered on the beneficiary record.

Well, what if the K-1 petition is withdrawn after the interview, but before the supervisory consular officer signs off on it?

The FAM uses this language “Upon discovery of a misrepresentation, the consular officer must return the petition to the INS office having jurisdiction over the petitioner's place of residence [see 22 CFR 42.43.] If the petition is revoked, the materiality of the misrepresentation is established.”

So I would err on the side of caution there as well.

What if the NOID letter is sent to the petitioner, but the Service Center is unable to locate him? There seems to be some discretion granted to IV Chiefs at consulates. Some consulates will consider this a revocation and allow the Misrepresentation finding to kick in. Others won’t.

Now what?

So in our fact situation, the beneficiary goes to her second interview. The consular officer is satisfied with the merits of the case. But there is a finding of Misrepresentation in her record. He hands her a 221(g) refusal sheet and an I-601 waiver application.

Our lovebirds have to apply to DHS for a 212(i) waiver to the grounds of inadmissibility.

Here too, there is some discretion at the consulate. Not all Immigrant Visa Chiefs seem to do it this way. Some will take the time, investigate the case and take the view that the grounds of inadmissibility for the K-1 have been overcome with the spousal petition. Most will simply allow the waiver process to take its course.

Recommendations

A. Lawyers

1. As I noted earlier, lawyers must inform DHS in advance, of any potential red flags which may arise at the consulate interview. That means we must conduct more thorough interviews of our I-130 and K-1 clients.

2. Whenever an NOID or NOIR letter comes in the mail, respond to it!

B. Department of State

1. Consulates should recognize that simply because an officer discovers “ substantial evidence relevant to petition validity not previously considered by DHS”, it does not necessarily follow that the beneficiary or petitioner have willfully misrepresented any material facts. P6C markers should not be automatically entered into a case simply because a petition has been returned with the recommendation that its approval be revoked.

2. Failing #1, Petitioners and Beneficiaries need to be advised that the officer believes they have made a willful material misrepresentation of the beneficiary’s eligibility for the visa. They should also be advised of the consequences of 212(a)(6)©(i) on the return sheet given to the beneficiary.

C. DHS/USCIS Service Centers:

1. Service Centers need to be aware of the P6C entries that consulates are making and provide every K-1 petitioner an opportunity to rebut the consulate’s findings on the merits.

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[1] © Misrepresentation. 212(a)(6)©(i) In general. ny alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

212(a)(6)©

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About The Author

Marc Ellis practices immigration law in Ho Chi Minh City Vietnam and Houston Texas with Pham & Associates PC. He is a frequent chat moderator for ILW.COM and also an advisory board member for Immigrants Weekly. In France, he is known as the composer of "The Fantomas Waltz". His email is marcellislaw@gmail.com.

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[Jenn! 918]

In case you all missed this post, I thought it might be useful for this thread: http://www.visajourney.com/forums/index.php?showtopic=63122

[brnidokiegurl 0]

Thats the reason i was questioning IF we didnt get the letter after application expires, from her experience

[chiquita 0]

Thats the reason i was questioning IF we didnt get the letter after application expires, from her experience

while it is true that CSS does not send out NOIR (so some couples were told) for K 1's, someone did mention that one can ask for one. i need to find that info for you.

as i stated earlier, i was told to be proactive. perhaps you can do the same?

once you know for certain you case has been sent back then you can reply to the CO's letter with proofs and evidence of your relationship via the CSC requesting they extend the validity of your petition and requesting a NOIR.

sounds dumb, but why not try it? i will try to find the info you need to do this. or you can try to find it if you like vis CFR.

i wish i had more help for you brnidokiegurl, but at the moment this is the best i can come up with. i think any and all corespondence with the consulate and the service center where your case will be sent is worth all your efforts. even if they dont listen you may be able to take other actions. there is always the writ of mandamus too.

chi

[brnidokiegurl 0]

I know thanks you have done alot already, just trying to comprehend all this in the last week, we have done the letters to the embassy, and actually still sending letters to them, (not like bugging them on a daily basis) but he is gathering ones from over there to send in also, and i have contact with 2 senators and 1 US rep...next step???

[chiquita 0]

In case you all missed this post, I thought it might be useful for this thread: http://www.visajourney.com/forums/index.php?showtopic=63122

yes it was intersting. thanks

she is not responding to since she spilt with her fiance.

chi