What I Learned About Evidence

[Yodrak 7]

fwaguy,

Google immigration attorney Marc Ellis, who used to post to VJ as EllisIsland.

Yodrak

.....

What is the basis for your statement that the consulate cannot deny based on previously adjudicated issues by the USCIS.

[payxibka 10,044]

fwaguy,

Google immigration attorney Marc Ellis, who used to post to VJ as EllisIsland.

Yodrak

.....

What is the basis for your statement that the consulate cannot deny based on previously adjudicated issues by the USCIS.

That is all fine and good but if my fiancee's visa gets denied based on something already adjudicated by the USCIS, I am sure the CO (or whomever I would appeal too) will accept my answer that he/she can't because Marc Ellis said so..... I know I will sure sleep better tonight..

Edited December 1, 2006 by fwaguy

[aussiewench 9]

Also

6. In adjudicating visa cases involving petitions, posts should

bear in mind three important factors: A. the consular officer''s

role in the petition process is to determine if there is

substantial evidence relevant to petition validity not

previously considered by DHS, and not to merely readjudicate the

petition; B. the memo supporting the petition return must

clearly show the factual and concrete reasons for recommending

revocation (observations made by the consular officer cannot be

conclusive, speculative, equivocal or irrelevant) and; C.

consular officers must provide to the applicant in writing as

full an explanation as possible of the legal and factual basis

for the visa denial and petition return. Post must maintain a

copy of the returned petition, other evidence relevant to the

case, and a copy of the written notification of the denial.

No readjudication of petitions

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.

http://travel.state.gov/visa/laws/telegrams/telegrams_1388.html

fwaguy,

Google immigration attorney Marc Ellis, who used to post to VJ as EllisIsland.

Yodrak

.....

What is the basis for your statement that the consulate cannot deny based on previously adjudicated issues by the USCIS.

[Yodrak 7]

fwaguy,

You asked for a basis for the statement. I gave you one. Nothing more, not my personal opinin on the issue.

I cannot vouch for Mr. Ellis' credentials as an immigration attorney or for his 'quality' as an immigration attorney. I can only observe that he has met the requirements to be an immigration attorney and also that he seems to be a prolific author in legal circles on this particular aspect of immigration law.

It would be a good idea to read some of his writings to understand what he believes and why he believes it before deciding on the validity or lack of validity of the issue. Either way, if you should get into such a situation you might want to consider his approach to dealing with the problem whether you agree with him or not, because his is the point of view that you will want to prevail.

Yodrak

fwaguy,

Google immigration attorney Marc Ellis, who used to post to VJ as EllisIsland.

Yodrak

.....

What is the basis for your statement that the consulate cannot deny based on previously adjudicated issues by the USCIS.

That is all fine and good but if my fiancee's visa gets denied based on something already adjudicated by the USCIS, I am sure the CO (or whomever I would appeal too) will accept my answer that he/she can't because Marc Ellis said so..... I know I will sure sleep better tonight..

Edited December 1, 2006 by Yodrak

[payxibka 10,044]

This is much better than Marc Ellis said so....

This is very interesting. Then how does one bridge the gap that the prima facia evidence that the USCIS is to examine and conclude on is only suppose to be that the petitioner and beneficiary have met within the previous two years. And since the petition is not the visa application, should not the petition only be used to qualify the applicant/USC as having only met requirements to simply apply for this particular visa type?

Also

6. In adjudicating visa cases involving petitions, posts should

bear in mind three important factors: A. the consular officer''s

role in the petition process is to determine if there is

substantial evidence relevant to petition validity not

previously considered by DHS, and not to merely readjudicate the

petition; B. the memo supporting the petition return must

clearly show the factual and concrete reasons for recommending

revocation (observations made by the consular officer cannot be

conclusive, speculative, equivocal or irrelevant) and; C.

consular officers must provide to the applicant in writing as

full an explanation as possible of the legal and factual basis

for the visa denial and petition return. Post must maintain a

copy of the returned petition, other evidence relevant to the

case, and a copy of the written notification of the denial.

No readjudication of petitions

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.

http://travel.state.gov/visa/laws/telegrams/telegrams_1388.html

[rebeccajo 14]

And since the petition is not the visa application, should not the petition only be used to qualify the applicant/USC as having only met requirements to simply apply for this particular visa type?

I've always thought that's pretty much what NOA2 for an I-129F is.

Look at how little evidence is REALLY required. Proof of meeting in last two years and proof of the petitioners citizenship. A little bit of fluff biographical data and a couple of letters of intent that establish why the petitioner wants the beneficiary to be granted an interview. Add to that satisfaction of the new IMBRA requirements and bingo you have NOA2.

[payxibka 10,044]

I've always thought that's pretty much what NOA2 for an I-129F is.

Petition approval (NOA2) is not visa application. The Visa application is when you submit all of the DS series of forms, et al...

[aussiewench 9]

By submitting any evidence of any potential red flags so as USCIS is aware of such when they approve the petition. Also those in high fraud countries such as the Philippines and Morocco eg may very well benefit from submitting evidence to support a bonafide relationship at the initial petition stage. Also borne out in this thread by ellis_island http://www.visajourney.com/forums/index.php?showtopic=6769&hl=

I am also with yodrak on Marc Ellis. He is a very highly respected immigration attorney mainly dealing with Manila that is also a member of VJ. Have a read of his article linked the thread.

This is much better than Marc Ellis said so....

This is very interesting. Then how does one bridge the gap that the prima facia evidence that the USCIS is to examine and conclude on is only suppose to be that the petitioner and beneficiary have met within the previous two years. And since the petition is not the visa application, should not the petition only be used to qualify the applicant/USC as having only met requirements to simply apply for this particular visa type?

Also

6. In adjudicating visa cases involving petitions, posts should

bear in mind three important factors: A. the consular officer''s

role in the petition process is to determine if there is

substantial evidence relevant to petition validity not

previously considered by DHS, and not to merely readjudicate the

petition; B. the memo supporting the petition return must

clearly show the factual and concrete reasons for recommending

revocation (observations made by the consular officer cannot be

conclusive, speculative, equivocal or irrelevant) and; C.

consular officers must provide to the applicant in writing as

full an explanation as possible of the legal and factual basis

for the visa denial and petition return. Post must maintain a

copy of the returned petition, other evidence relevant to the

case, and a copy of the written notification of the denial.

No readjudication of petitions

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.

http://travel.state.gov/visa/laws/telegrams/telegrams_1388.html

Edited December 1, 2006 by aussiewench

[Yodrak 7]

aussiewench,

The sense I get from this particular reference, based primarily on the phrases "requirements for classification" and "requirements for status", is that the job of USCIS is to determine whether or not the required relationship exists. Not why the relationship exists. Is the couple engaged to be married or is the couple married.

The job of the consular officer goes one step further, to determine why the relationship exists. And if it is determined that the reason for the relationship is solely to get the alien into the USA as an immigrant then they do not qualify for the visa. Even if they qualified to apply for the visa.

But, I am basing my thoughts on policy and procedure statements such as these, not on the language of the INA. So maybe mybackpages and Mr. Ellis are more correct than I think they are. On the other hand, as I wrote in a reply to fwaguy, if I found myself in the situation I would suddenly embrace their position completely!

Yodrak

Also

6. In adjudicating visa cases involving petitions, posts should

bear in mind three important factors: A. the consular officer''s

role in the petition process is to determine if there is

substantial evidence relevant to petition validity not

previously considered by DHS, and not to merely readjudicate the

petition; B. the memo supporting the petition return must

clearly show the factual and concrete reasons for recommending

revocation (observations made by the consular officer cannot be

conclusive, speculative, equivocal or irrelevant) and; C.

consular officers must provide to the applicant in writing as

full an explanation as possible of the legal and factual basis

for the visa denial and petition return. Post must maintain a

copy of the returned petition, other evidence relevant to the

case, and a copy of the written notification of the denial.

No readjudication of petitions

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.

http://travel.state.gov/visa/laws/telegrams/telegrams_1388.html

fwaguy,

Google immigration attorney Marc Ellis, who used to post to VJ as EllisIsland.

Yodrak

.....

What is the basis for your statement that the consulate cannot deny based on previously adjudicated issues by the USCIS.

Edited December 1, 2006 by Yodrak

[rebeccajo 14]

I've always thought that's pretty much what NOA2 for an I-129F is.

Petition approval (NOA2) is not visa application. The Visa application is when you submit all of the DS series of forms, et al...

Yes. NOA2 for I-129F. Petition approval. Isn't that what your statement was about?

I am also with yodrak on Marc Ellis. He is a very highly respected immigration attorney mainly dealing with Manila that is also a member of VJ. Have a read of his article linked the thread.

I thought Ellis was also expert on Ho Chi Mihn City?

[Yodrak 7]

aussiewench,

Point of clarification: Vietnam

Yodrak

..... Marc Ellis. ... is a very highly respected immigration attorney mainly dealing with Manila that is also a member of VJ. ....

[pugsly 0]

The only reason the consulate gave my fiance for his denial was , "I dont believe this relationship is real". I think they know they can get away with this without giving reason or proof for the petitions return is becouse the k-1 has an experation date. They just have to wait a few months before they return it to the service center than it will expire and the person will not have a chance to prove the relationship is real. His last interview was on October 4 2006, and they still haven't sent it back yet.

In fact at the last interview she gave my fiance a 2 hour notice to come to the embassy now with your proof of ongoing relationship. When he showed up with it she wanted to know when he had printed his evidence out. He had every paper they could possible ask for and more. He answered all thier questions correctly. I really dont think they have any proof or evidence of any kind that the relationship is not valid. He is pakistani and they didnt want to issue him the visa period.

I have to go marry him now in his country and start this nutty process all over again. Also, it was the embassy in Georgia that he went through. He will have to move back to pakistan so we can go through that embassy next time. Hopefully that wont be a problem.

[aussiewench 9]

oops, knew that too. Thanks for picking it up.

aussiewench,

Point of clarification: Vietnam

Yodrak

..... Marc Ellis. ... is a very highly respected immigration attorney mainly dealing with Manila that is also a member of VJ. ....

I thought Ellis was also expert on Ho Chi Mihn City?

Edited December 1, 2006 by aussiewench

[Mike and Lily 13]

That's a relief! I only included 3 passport stamps and 2 pics of us together. It seems logical that should be sufficient, but logic doesn't always apply to governmental agencies. Congrats on the NOA2.

Mike

I hired a lawyer to do our K-1 because I had no idea of the process, and, like all of us, I was in a hurry to get a visa in hand.

In the 2.5 months I've waited for the NOA2 I've fretted a lot over whether my lawyer included enough evidence of relationship, especially when reading on this board about all that some people enclose. In addition to the usual myriad of forms (letters of intent, etc.), my laywer only had me include 3 pictures of me and my girl and copies of my passport stamps (for one visit). That's it. No tax forms. No e-mail or snail mail correspondence. Nothing else. I certainly could have provided more evidence and even suggested some, but this was all he wanted.

I mention this for those struggling to put together their apps. Maybe you don't need as much as you think you need -- just a few well chosen and irrefutable bits of evidence that you've really met and bonded. Maybe this makes the life of the USCIS arbiter easier. Who knows?

[whenwillithappen 0]

our children where born here in the uk.... we also sent in the birth cetificates with both our names on... but we stilll recieved and rfe for more evidence... we are also using an attourney and he told us that what we sent would be ample... so you see you just never know what to expect!!

You received an RFE for evidence that was not required to be submitted with the original petition?

yes the rfe was for my birth certificate ( beneficiary) and our kids full birth certificates with both our names on for proof that he had been in the uk with me when our kids where registered