What I Learned About Evidence

[payxibka 10,044]

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

No not at all... What I am saying is that the evidence submitted within the petition is only used to qualify the applicant for a particular visa type. That if you submit additional evidence that beyond the basic scope of proving having having met within the previous two years, that simply because the USCIS has adjudicated it, this will preclude a CO from denying a visa simply because the evidence was contained within the petition.

[rebeccajo 14]

Preclude? I think the memo states that have to justify legally and factually.

Edited December 1, 2006 by rebeccajo

[zixuandavid 0]

Some of us going through Casablanca suspect that the decision to approve or not is based on the original petition rather than the interview. Often no evidence is accepted at the interview. Maybe they will look at photos. Fiances have been denied even though they has arm loads of evidence like phone records, emails etc and were sometimes not allowed to present this info.

Building a solid case of a relationship in the USCIS petition is a good idea in this case. The consulate can not deny on any issue already approved by USCIS. For consulates that opearte like this the kinds of evidence submitted in the original petition should be considered.

I am overly familiar with the process as it applies to the consulate in Guangzhou, China.. so I can really only speak from that point of view… but it is similar to what you describe.

“Pre-determined” outcomes is often debated at the website CFL. My position is that the petition/case has taken almost 8-15 months to interview and has been marked up at every step; The VO gets the case the morning of the interview and scans everything, including comments made by every hand who has ‘touched’ this case. The fact that he is the voice which says it is approved or denied is maybe to overlook (underestimate) the role of all previous agencies, IMO.

By the time of the interview, there is really little the VO doesn’t already know [based upone review of the case] about the case but will ask almost perfunctory; “how did you meet”, “how many trips did the petitioner make”., etc.

IMO, verbal evidence is most important; the physical evidence brought to an interview is not often asked for anyway. Finances are black/white. And from what I’ve seen from two years of studying interviews in china, where a long process unfolds; number of visits is paramount to trump any possible red flags… As I once heard, “effort is hard to fake”.

In the end, there is evidence of an valid ongoing relationship and proof enough that the parties have no wrong intent in securing immigration benefits.

Don't confuse the documentation you send to the USCIS for petition approval versus what you have available for the CO at the interview... Two completely different things....

From the above comments I made, the entire case is available to the CO at the interview. Don’t underestimate every mark made in it.

Also, those suggesting that what DHS ‘giveth’ the consulate cannot ‘taketh’.. should realize that by the time of the interview, the consulate will see much more than DHS did. There will be many documents after the petition which need to be consistent and then an interview which needs to provide consistent answers. It’s not as hard as some might thing to find a little inconsistency; the issue is whether it’s reasonable human error without wrong intent or fraud. (Of course revocation and simply denial to overcome are different but don’t want to go there now).

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?

If I understand you; shouldn’t the petition along qualify the parties to apply for a visa? I would agree… evidence of having meet is paramount. But I will say that I submitted a brief write-up of our relationships evolution. Maybe this revealed any lack of communication issues on our part, which happens to often be the basis of denials in china, but was approved for our case. I will note that many recent blue slips in china as asking for the evolution of the relationship.

I am a strict minimalist in regards to this process; give them what they ask for and no more. I will admit that Ellis’s articles are enlightening and I’m still digesting their full implications. But in the absence of strong proof of an ongoing relationship, then maybe more upfront material would be wise. The problem is, at the start (ie: petition submission), few are able to think that far ahead (particularly if it’s a year process) and know all the proof that will be enough by the time of the interview.

By submitting any evidence of any potential red flags so as USCIS is aware of such when they approve the petition.

True. Problem is that in a long process like for Chinese beneficiaries who can be culturally tight lipped in the start… you don’t know the flags. Maybe a simple statement of how you communicate should be minimally included since that is a big issue.

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.

I think we agree and will only reword as I see it:

- USCIS = A relationship exists and has meet the requirements for a petition;

- CONSULATE = A bona-fide relationship exists (no wrong/false intent to secure immigration benefits) and they meet the requirements to be issued a visa.

[payxibka 10,044]

Preclude? I think the memo states that have to justify legally and factually.

What memo are you referring to? The one written by a lawyer who is expressing his interpretation?

[zixuandavid 0]

Preclude? I think the memo states that have to justify legally and factually.

What memo are you referring to? The one written by a lawyer who is expressing his interpretation?

That lawyer's article cites the DHS memo.. here is it since you must of missed it:

http://travel.state.gov/visa/laws/telegram...grams_1388.html

[rebeccajo 14]

Preclude? I think the memo states that have to justify legally and factually.

What memo are you referring to? The one written by a lawyer who is expressing his interpretation?

Nooooooooooooooooo.

The DOS memo Lorelle posted.

[payxibka 10,044]

Preclude? I think the memo states that have to justify legally and factually.

What memo are you referring to? The one written by a lawyer who is expressing his interpretation?

Nooooooooooooooooo.

The DOS memo Lorelle posted.

After reading the memo, it is a little confusing what the ConnOffs role truly is in this process....

[mybackpages 0]

Preclude? I think the memo states that have to justify legally and factually.

What memo are you referring to? The one written by a lawyer who is expressing his interpretation?

Nooooooooooooooooo.

The DOS memo Lorelle posted.

After reading the memo, it is a little confusing what the ConnOffs role truly is in this process....

thus why it is important to try and understnd how the consulate one goes through operates is so important

[one...two...tree 2,762]

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

Thanks, Lorelle! And thank you, Yodrak for pointing out Mark Ellis' legal opinions! I just read the article and find it very reassuring.

[Peterson 0]

China Rob, I completely agree about the lawyer. You aren't paying them to do anything you can't do yourself, especially with this site.

This is off topic, but I don't think one can categorically say that none of us needs an immigration lawyer. In particular, I think that retaining one with local offices in your fiance's home country can be of great benefit, especially if English is his or her second language. I could easily have done myself what's been asked of me so far, but I'm glad for this next phase that there is a US trained immigration lawyer on the case in her home country to help her negotiate the next gauntlet of forms, doctors visits, police visits and embassy interviews.

[payxibka 10,044]

thus why it is important to try and understnd how the consulate one goes through operates is so important

I am not sure what it is you have just said.......

[Jenn! 918]

thus why it is important to try and understnd how the consulate one goes through operates is so important

I am not sure what it is you have just said.......

Wouln't you agree by this point that giving the same advice regarding evidence for the I-129F to someone from Morocco as someone from the UK would be a bad idea?

[Mags 112]

thus why it is important to try and understnd how the consulate one goes through operates is so important

I am not sure what it is you have just said.......

Wouln't you agree by this point that giving the same advice regarding evidence for the I-129F to someone from Morocco as someone from the UK would be a bad idea?

Very, very true. For example London doesn't require the DS157 from females, only from males over 17 years old. However, there are a couple of consulates who DO need this form for females. *shrugs*

Everywhere is slightly different (which is a pain) but those differences can be very important...

Edited December 3, 2006 by mags

[mybackpages 0]

thus why it is important to try and understnd how the consulate one goes through operates is so important

I am not sure what it is you have just said.......

I was sure what I said, I am just not sure what I typed. Second try.

That is why understanding how the consulate that one is going through operates is soooo important

[TucsonBill 0]

I've read all this stuff, and participated in two prior debates on this, and have been reluctant to get involved in this one AGAIN... but I'm bored today and frustrated that we still don't have our packet 4!

I believe alot of factors come into play at virtually every stage of this process, including who you are, who your fiance is, what country your fiance is located in, how well trained your adjuticator is, what mood they are in on they day they get your petition etc...

I sent in pretty minimal evidence with my petition, but that was before I found this site. I did include translated copies of the birth certificates and her daughter with my I-129F and I am glad I did because several people got RFE's for this information. I did wind up getting an RFE for my credit card statements and bank records for the time I was in Thailand to prove I had made purchases and cash withdrawals.

Why did the OP not get an RFE? Who knows? I also know 'Tom' had so much evidence he sent in with his I-129F that he needed a BOX to ship it in. He sent in his request after I sent mine, and got his approval before I got my RFE!

It's all a turkey shoot folks, and there is no way to really predict how the adjuticator will view your case because there are just too many variable factors that come into play.

As another example, I was told that the 'request for a provisional file' was 'obsolite' and would not be honored, so not to bother. I know how breaucracies work, and I figured it was worth a shot, (had a heck of a time finding a fax number for the Consular offices in Bangkok BTW), but I fired off 2 identical faxes and Pao got her packet 3, 4 days later!

These people in USCIS and at the Embassy are in no way conisistant, and its impossible to tell ahead of time what they will do or request when they get your petition.

After all I have read on this subject, I belive more is better. If you send in just a little bit and get an easy adjuticator on a good day when they're in a good mood, you might get lucky. If yours winds up going to a hard-### on a bad day, you're gona get an RFE. If you get someone in-between, better to send more than necessary, than to not send enough IMHO.

Bill

Edited December 3, 2006 by TucsonBill