An interesting twist-how consulate can claim misrep

[jess100 53]

Hey I just found this link on VJ and want to know if anyone has actually read it. http://www.ilw.com/articles/2006,0323-ellis.shtm

As I understand it, a K-1 visa expires after 4 months and this can be used by consulate to claim misrep although no misrep has occurred.

Here are some of the disturbing parts of this article.

K-1 and K-3 visas are odd fish. They are non-immigrant visas. Yet they e processed at consulates as IV’s . Not only that, K-1’s and K-3’s have definite life-spans. A K-1 for instance expires after four months. It normally takes more than four months from the time of DHS approval for a beneficiary to be interviewed at the consulate. Thus, by the time the beneficiary in our fact situation shows up at the window, the petition approval is no longer valid.

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.

The ariticle is long and technical. Has anyone read this? Does this mean that we need to ensure our petitions are updated and not expired during this process? In the article he says the K-1 visa can expire before the interview but my understanding was the we don't have a K-1 until after the interview.

Can some of you really smart people weigh in on this? If nothing else people should be aware of this.

[LORIEandPHIL 123]

A lot of people get refused and then get married. I can't recall any posts where they have then been denied simply because their K-1 visas had been allowed to expire.

[Ash.1101 1,756]

One thing I'm not a fan of, is that it's combining K1 and K3 in an article talking about misrep and revocation.

Also it uses K-1 visa and petition interchangably, sometimes just saying K-1 assuming you know which one it talks about as in this gem: "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. "

When was this article written? It seems older since it cites cases from 2004 and still uses K3 instead of CR-1 or IR-1.


As for " built-in presumption against the intentions of the couple if the processing time for the K-1 petition has been delayed, even for reasons beyond their control."

Honestly yeah, if you know your petition has expired and you know there are delays and you don't do anything about it, why would they think that this was a relationship deemed as legitimate? Most people don't sit around for six months and go "Oh man, I forgot the petition expired 6 months ago! Maybe I should do something about it?"

The article seems to be trying to say that by you ignoring your petition, them sending your expired petition back that you never responded too, that the validity of your relationship isn't that great and that it should be considered at any future interviews, and that you potentially lied to them by saying you wanted to marry the person you petitioned for..

Now how is this seen as misrep? To them, you sent a petition saying you want to marry someone and you are legally able to do so. Then, you spend months ignoring the petition. To them, you said you want to marry someone, when you want to do it, and that you can legally do it, and now you've ignored it and are no longer going to that. It's a stretch, but you didn't tell them the truth in a way. Now, by ignoring your expired petition and not re validating it, you don't want to marry someone, you have no plans to do so, and you may or may not be able to legally do so. You misrepresented your intentions by saying yes, I want too, and then saying "no I don't" by ignoring the expired petition.

Now could this be used against you? Yea probably, but I'm sure it's not done frequently as this article talks about revocation of K1's, when we know most of them are just sent to USCIS simply to expire out without any actual looking over. Again, this article seems to be older.


I also don't think this happens too often, but it can happen. It makes sense.




With all of that said, there's an easy way around this that the article doesn't seem to mention: If you don't want to get married you request your petition to be withdrawn. If you do want to get married, you ask to have your petition re validated and send a notice that you are still willing and able to marry.


Edit: Oh yeah this is an old article, it talks about the Nebraska and Vermont Service Centers when talking about K1.

Edited November 18, 2015 by Ash.1101

[NigeriaorBust 4,087]

Marc Ellis used to be on VJ once in a while http://www.visajourney.com/forums/user/6473-ellis-island/ He is often quoted by others for the work he does on denied petitions. Back before 2005 when a petition was returned by the embassy USCIS used a process that could leave those markers against the beneficiary. This could even happen when the petition just went unreviewed for an extensive time. The current process is that they declare the petition expired and dead ( no review) and that process does not have the potential of leaving the fraud markers unless USCIS make a hard finding of fraud.

[jess100 53]

Marc Ellis used to be on VJ once in a while http://www.visajourney.com/forums/user/6473-ellis-island/ He is often quoted by others for the work he does on denied petitions. Back before 2005 when a petition was returned by the embassy USCIS used a process that could leave those markers against the beneficiary. This could even happen when the petition just went unreviewed for an extensive time. The current process is that they declare the petition expired and dead ( no review) and that process does not have the potential of leaving the fraud markers unless USCIS make a hard finding of fraud.

Thanks for clearing this up in my already stressed mind. It sounds very unlikely based on your feedback and the feedback of others.

But one question:

This could even happen when the petition just went unreviewed for an extensive time.

Does this mean it could happen if the petition is at USCIS for a long time without being processed?

[NigeriaorBust 4,087]

It isn't the outgoing petition that causes issues. It is one returned from the embassy after the interview. Most people don't even have this potential issue. ( the number of refused K visas is really rather small) If refused at the interview , the petition gets sent back to USCIS because the embassy has the right not to issue the visa but they don't have the right to revoke an approved petition. Because the K visas petitions have a expiration date by the time they get returned they are declared expired under modern processing. Under the old method they got sent for review and because of backlogs they ended up with a default validation of the initial finding from the consulate ( usually no bonafide relationship ) which created fraud codes against the petition. You shouldn't have to worry about anymore.

[Ebunoluwa 6,136]

NigeriaorBust is right.

This is an old article and back then returned K1's were actually reviewed by USCIS, now they are no longer reviewed and expire so that the petitioner

can file again without prejudice (without a fraud marker to deal with.)

Back then if USCIS reviewed them, agreeing with the consulate or by default, they would carry the pc6 fraud marker which the

petitioner would then have to overcome even no fraud was committed. A law suit stopped this and therefore no returned K1's

are reviewed but are purposely expired.

So, no worries for you.