visa denial

[ProudAfrican 5]

Yes,the sole responsibility lies on the applicant to prove beyond doubt the relationship with the US citizen is genuine and not for immigration purpose.Documents submitted to NVC are evidence but you need to do more homeworks to prove your relationship.i was denied on k1 visa and the reason was my relationship was not genuine with my fiancée.We submitted many more evidences but for some reasons I was called to pick up my passport without the visa and I was issued the denial notice twice.When my fiancée contacted the US dept of consular affairs in WA they got back and said our visa was not denied but was refused.After talking to al lawyer,she advices to get married and applied again and this time for spouse visa and that what we did.It cost less time and money to change the route than appeal the decision of the consular.Consular officers are the president of US overseas and their decision is final but when you believe in the cause you are fighting there will be victory at the end...Good Luck

[ProudAfrican 5]

hi guys a friend of mine was denied of the k1 visa aftr her interview, does she have any other options? Would appreciate replies, she's devastated..

Yes,the sole responsibility lies on the applicant to prove beyond doubt the relationship with the US citizen is genuine and not for immigration purpose.Documents submitted to NVC are evidence but you need to do more homeworks to prove your relationship.i was denied on k1 visa and the reason was my relationship was not genuine with my fiancée.We submitted many more evidences but for some reasons I was called to pick up my passport without the visa and I was issued the denial notice twice.When my fiancée contacted the US dept of consular affairs in WA they got back and said our visa was not denied but was refused.After talking to al lawyer,she advices to get married and applied again and this time for spouse visa and that what we did.It cost less time and money to change the route than appeal the decision of the consular.Consular officers are the president of US overseas and their decision is final but when you believe in the cause you are fighting there will be victory at the end...Good Luck

[diavatirio 7]

The USCIS service center did not send the petitioner an RFE because, at that level of the K-1 process, it's not required to prove a bona fide relationship. The Embassy determines whether a relationship is bona fide. The USCIS looks at whether the couple met face-to-face within two years prior to filing the petition.

Did the Embassy issue her Form MNL-IV-22 (221g)? If so, what exactly did it say?

Maybe her visa was not denied. Maybe it was refused. If it was refused, then she can submit more evidence.

The bona fide's of the relationship are a matter that only the USCIS gets to decide. The trick is to include a lot of evidence, including any derogatory information, with the initial I-129 application. The embassy can only deny a visa for lack of evidence of a bona fide marriage and send the file back to the USCIS when it uncovers new information, not previously considered by the USCIS. So make sure there is no new information to uncover and USCIS has all possible derogatory info to begin with and still approves the case.

[Tahoma 2,291]

The bona fide's of the relationship are a matter that only the USCIS gets to decide. The trick is to include a lot of evidence, including any derogatory information, with the initial I-129 application. The embassy can only deny a visa for lack of evidence of a bona fide marriage and send the file back to the USCIS when it uncovers new information, not previously considered by the USCIS. So make sure there is no new information to uncover and USCIS has all possible derogatory info to begin with and still approves the case.

Once again, this is not a spousal visa case.

It's a fiancé(e) visa case. The U.S. Embassy Manila decides whether it's a bona fide relationship, not the USCIS.

[QueenE 173]

So uscis only checks bona fide relationships on spousal cases?

Once again, this is not a spousal visa case.

It's a fiancé(e) visa case. The U.S. Embassy Manila decides whether it's a bona fide relationship, not the USCIS.

[diavatirio 7]

Once again, this is not a spousal visa case.

It's a fiancé(e) visa case. The U.S. Embassy Manila decides whether it's a bona fide relationship, not the USCIS.

That's just not correct and is in direct contrast with the seventh paragraph of the state department cable from 2004, see http://travel.state.gov/visa/laws/telegrams/telegrams_1388.html

Edited October 14, 2012 by diavatirio

[C-ma'am 684]

That's just not correct and is in direct contrast with the seventh paragraph of the state department cable from 2004, see http://travel.state....grams_1388.html

That's for cases that are RETURNED to USCIS for further review, and even so, if USCIS wants to reaffirm a case, they send it to the Embassy for a 2nd interview; which leaves the Embassy with full control again.

What Tahoma said was correct.

[diavatirio 7]

That's for cases that are RETURNED to USCIS for further review, and even so, if USCIS wants to reaffirm a case, they send it to the Embassy for a 2nd interview; which leaves the Embassy with full control again.

What Tahoma said was correct.

Read the seventh paragraph from that link titles "No readjudication of petitions." The language is clear. The only difference between fiance/spouse petitions has to do with issues of validity and expiration. You can argue that the consular officials don't follow the state department's instructions, but the instructions themselves are clear.

7. In general, an approved petition will be considered by

consular officers as prima facie evidence that the requirements

for classification - which are examined in the petition process

- have been met. Where Congress has placed responsibility and

authority with DHS to determine whether the requirements for

status which are examined in the petition process have been met,

consular officers do not have the authority to question the

approval of petitions without specific evidence, generally

unavailable to DHS at the time of petition approval, that the

beneficiary may not be entitled to status (see 9 FAM 41.53, Note

2, 41.54 Note 3.2-2, 41.55 Note 8, 41.56 Note 10, 41.57 Note 6,

and 42.43 Note 2) due to fraud, changes in circumstances or

clear error on the part of DHS in approving the petition.

Conoffs should not assume that a petition should be revoked

simply because they would have reached a different decision if

adjudicating the petition.

Edited October 14, 2012 by diavatirio

[VanessaTony 3,567]

Read the seventh paragraph from that link titles "No readjudication of petitions." The language is clear. The only difference between fiance/spouse petitions has to do with issues of validity and expiration. You can argue that the consular officials don't follow the state department's instructions, but the instructions themselves are clear.

7. In general, an approved petition will be considered by

consular officers as prima facie evidence that the requirements

for classification - which are examined in the petition process

- have been met. Where Congress has placed responsibility and

authority with DHS to determine whether the requirements for

status which are examined in the petition process have been met,

consular officers do not have the authority to question the

approval of petitions without specific evidence, generally

unavailable to DHS at the time of petition approval, that the

beneficiary may not be entitled to status (see 9 FAM 41.53, Note

2, 41.54 Note 3.2-2, 41.55 Note 8, 41.56 Note 10, 41.57 Note 6,

and 42.43 Note 2) due to fraud, changes in circumstances or

clear error on the part of DHS in approving the petition.

Conoffs should not assume that a petition should be revoked

simply because they would have reached a different decision if

adjudicating the petition.

You are misreading. For a K1 there are TWO separate processes. The K1 petition stage (mentioned in your quote above) and the K1 visa stage. The petition is adjudicated prior to reaching the embassy. That's when the petition is approved (they have sufficient evidence that they met in person and meet all the requirements to APPLY for a visa), then it gets sent to the embassy where the EMBASSY decides whether the relationship is valid or not.

If the EMBASSY determines that the relationship isn't valid then they return the application to USCIS to get the petition revoked. If USCIS reaffirms the petition then the embassy with schedule a second interview for the visa application. If USCIS revokes the petition approval, they need to refile.

Edited October 14, 2012 by Vanessa&Tony

[VanessaTony 3,567]

That's just not correct and is in direct contrast with the seventh paragraph of the state department cable from 2004, see http://travel.state.gov/visa/laws/telegrams/telegrams_1388.html

The link you posted is for returned visa applications recommended for petition revocation per the SUBJECT HEADING in the link you posted "SUBJECT: SOP 61: GUIDELINES AND CHANGES FOR RETURNING DHS / USCIS APPROVED IV AND NIV PETITIONS".

This relates to when the EMBASSY determines the relationship isn't petitionable (whether fake or whatever) and returns the file to USCIS for revocation of the petition.

[diavatirio 7]

You are misreading. For a K1 there are TWO separate processes. The K1 petition stage (mentioned in your quote above) and the K1 visa stage. The petition is adjudicated prior to reaching the embassy. That's when the petition is approved (they have sufficient evidence that they met in person and meet all the requirements to APPLY for a visa), then it gets sent to the embassy where the EMBASSY decides whether the relationship is valid or not.

If the EMBASSY determines that the relationship isn't valid then they return the application to USCIS to get the petition revoked. If USCIS reaffirms the petition then the embassy with schedule a second interview for the visa application. If USCIS revokes the petition approval, they need to refile.

I don't disagree, and i dont think anything i wrote earlier contrasts this. The point is just that the embassy's authority is somewhat limited as indicated on that cable - and you can take advantage of this by preparing the immigrant petition appropriately.

Edited October 14, 2012 by diavatirio

[VanessaTony 3,567]

So uscis only checks bona fide relationships on spousal cases?

Yes. USCIS only adjudicates the petition. They make sure that the USC is eligible to petition someone, they make sure they've met in the last 2 years, make sure they're free to marry and then forward the petition to the EMBASSY where the beneficiary is sent information to apply for their VISA.

At the VISA stage this is where the EMBASSY asks for medicals, police checks, proof of relationship etc etc. You do not send proof of relationship with the petition application. Some people do, this is called "front loading" but most do not because it's not a requirement, unlike the spousal visa (I-130) application which DOES require evidence of bonafide marriage to be sent with the application.

[VanessaTony 3,567]

I don't disagree, and i dont think anything i wrote earlier contrasts this. The point is just that the embassy's authority is somewhat limited as indicated on that cable - and you can take advantage of this by preparing the immigrant petition appropriately.

IT'S NOT AN IMMIGRANT PETITION!!! A fiance visa is a non-immigrant visa :S

What petition are you talking about? Are you talking about the K1 petition? Because evidence of relationship is not a requirement. If you're talking about the visa application that's not a petition.

The embassy's authority is not limited. THEY decide whether to approve or deny your application for a visa. THEY decide whether to send your visa application for revocation. then you wait 6+ months for USCIS to readjudicate your petition and decide whether to reaffirm or deny. The embassy's power is much stronger than you seem to think it is.

I'm sorry but you do not know what you are talking about in regards to K1 petitions/visa applications. They are different to spousal visa applications/petitions.

The bona fide's of the relationship are a matter that only the USCIS gets to decide. The trick is to include a lot of evidence, including any derogatory information, with the initial I-129 application. The embassy can only deny a visa for lack of evidence of a bona fide marriage and send the file back to the USCIS when it uncovers new information, not previously considered by the USCIS. So make sure there is no new information to uncover and USCIS has all possible derogatory info to begin with and still approves the case.

They are NOT married. It's a FIANCE VISA APPLICATION!! You are talking about front loading which does sometimes help but not always.

Evidence of relationship (NOT MARRIAGE) is presented at the embassy stage and the EMBASSY determines whether your relationship is valid or not.

You are very naive about this whole process.

[JimVaPhuong 4,863]

Read the seventh paragraph from that link titles "No readjudication of petitions." The language is clear. The only difference between fiance/spouse petitions has to do with issues of validity and expiration. You can argue that the consular officials don't follow the state department's instructions, but the instructions themselves are clear.

7. In general, an approved petition will be considered by

consular officers as prima facie evidence that the requirements

for classification - which are examined in the petition process

- have been met. Where Congress has placed responsibility and

authority with DHS to determine whether the requirements for

status which are examined in the petition process have been met,

consular officers do not have the authority to question the

approval of petitions without specific evidence, generally

unavailable to DHS at the time of petition approval, that the

beneficiary may not be entitled to status (see 9 FAM 41.53, Note

2, 41.54 Note 3.2-2, 41.55 Note 8, 41.56 Note 10, 41.57 Note 6,

and 42.43 Note 2) due to fraud, changes in circumstances or

clear error on the part of DHS in approving the petition.

Conoffs should not assume that a petition should be revoked

simply because they would have reached a different decision if

adjudicating the petition.

USCIS does not interview either the petitioner or beneficiary, nor do they evaluate evidence of a bonafide relationship during the petition approval process. The consular officer is the first one to see any of this evidence, which makes it abundantly easy for the consular officer to produce evidence which was "generally unavailable to DHS at the time of petition approval". This is, in fact, how the overwhelming majority of denied petitions end up being sent back to USCIS. The consular officer is claiming that the visa was denied based on evidence discovered during the interview, and they're recommending that USCIS revoke the approval of the petition.

What that cable is stating is that the consular officer can't cite evidence that was included with the original petition as a reason for denying the visa unless they are also implicating "clear error on the part of DHS". And yes, this also occasionally happens. USCIS does make mistakes, and consular officers do sometimes catch those mistakes. But this scenario is far less common than the discretionary denial I described above.

This is why red flags should be addressed by frontloading the petition. This makes it more difficult for the consular officer to claim that USCIS didn't know about it when the petition was approved.

[diavatirio 7]

IT'S NOT AN IMMIGRANT PETITION!!! A fiance visa is a non-immigrant visa :S

What petition are you talking about? Are you talking about the K1 petition? Because evidence of relationship is not a requirement. If you're talking about the visa application that's not a petition.

The embassy's authority is not limited. THEY decide whether to approve or deny your application for a visa. THEY decide whether to send your visa application for revocation. then you wait 6+ months for USCIS to readjudicate your petition and decide whether to reaffirm or deny. The embassy's power is much stronger than you seem to think it is.

I'm sorry but you do not know what you are talking about in regards to K1 petitions/visa applications. They are different to spousal visa applications/petitions.

They are NOT married. It's a FIANCE VISA APPLICATION!! You are talking about front loading which does sometimes help but not always.

Evidence of relationship (NOT MARRIAGE) is presented at the embassy stage and the EMBASSY determines whether your relationship is valid or not.

You are very naive about this whole process.

I misspoke when i referred to the petition as an immigrant petition. As for the rest, I think Marc Ellis' article is also agreeing with me, see http://www.ilw.com/articles/2006,0323-ellis.shtm

Note that he specifically refers to the K-1 visa example at the beginning of the article and writes "These are the facts we’re using for the article."

No point discussing this further anyway.

This is why red flags should be addressed by frontloading the petition. This makes it more difficult for the consular officer to claim that USCIS didn't know about it when the petition was approved.

I think you are repeating my words exactly.

Edited October 14, 2012 by diavatirio