K-1 visa rejected twice since 2017

[SalishSea 16,744]

Just now, wxman22 said:

Are we allowed to marry cousins? or maybe that's just a New York State rule??

 The legality of marriage between first cousins is decided at the state level.  K-1 applicants intending to marry a first cousin  can be denied if it is not legal in their state of residence.

[wxman22 109]

Just now, Jorgedig said:

 The legality of marriage between first cousins is decided at the state level.  K-1 applicants intending to marry a first cousin  can be denied if it is not legal in their state of residence.

That makes sense, since we have some states that no one would get married if they couldn't marry a cousin!

[Imej 8]

A general question. If a couple were not successful in obtaining K1 Visa at first. Then they decide to go for a CR-1 Visa, what are the chances that this time they will get it and be together? Obviously, the k-1 history will be included in the application for CR-1.

 

[SalishSea 16,744]

1 hour ago, Imej said:

A general question. If a couple were not successful in obtaining K1 Visa at first. Then they decide to go for a CR-1 Visa, what are the chances that this time they will get it and be together? Obviously, the k-1 history will be included in the application for CR-1.

 

Depends entirely on the reasons for the K-1 denial.

[Imej 8]

3 hours ago, Jorgedig said:

Depends entirely on the reasons for the K-1 denial.

The reason is that the CO did not believe it is a Buena Fe relationship. 

[geowrian 22,335]

What has changed in the relationship, or evidence thereof, since applying for the K-1?

 

Just changing the type of visa is unlikely to have a different result. The requirements to show a bona fide relationship are basically identical for both.

The main advantage of a CR-1 visa here is if the visa is refused for that reason, the I-130 is sent back to USCIS, reviewed, and can be reaffirmed. A visa application with a reaffirmed petition is not supposed to be refused for the same reason using the same evidence.

 

The time spent together in order to marry, and any subsequent visits and other communication is a plus as well.

[Imej 8]

1 hour ago, geowrian said:

What has changed in the relationship, or evidence thereof, since applying for the K-1?

 

Just changing the type of visa is unlikely to have a different result. The requirements to show a bona fide relationship are basically identical for both.

The main advantage of a CR-1 visa here is if the visa is refused for that reason, the I-130 is sent back to USCIS, reviewed, and can be reaffirmed. A visa application with a reaffirmed petition is not supposed to be refused for the same reason using the same evidence.

 

The time spent together in order to marry, and any subsequent visits and other communication is a plus as well.

Well, couples who go for CR-1 after K1 denial, automatically have more time, visits, and more communication.

In case of Pakistan, I think CR-1 aligns better than K1 with the culture. K1 does get issued also, but for certain cases, maybe for relatives or so, as they have known each other for considerable long time.

 

I think the fact that you can appeal for CR-1 and not for K1 has more to do with the legal status of the relationship. A k-1, it's not illegal binding of any sort between the couple. On the other hand, CR-1 has more of legal binding nature. And both dissolves in different fashions.

 

Just my thoughts and analysis of this.

[geowrian 22,335]

10 hours ago, Imej said:

Well, couples who go for CR-1 after K1 denial, automatically have more time, visits, and more communication.

Yup. This was implied in my comment as well.

 

10 hours ago, Imej said:

I think the fact that you can appeal for CR-1 and not for K1 has more to do with the legal status of the relationship. A k-1, it's not illegal binding of any sort between the couple. On the other hand, CR-1 has more of legal binding nature. And both dissolves in different fashions.

That's not the reason. First thing I would point out is that until the early 2010s, returned I-129Fs were reviewed. This practice was then halted due to the circumstances noted below.

If you're interested, here's a very brief history lesson about this situation...

 

When A CO believes there is not a bona fide relationship, they return the petition to USCIS with a "P6C1" marker. This is a quasi-refusal (p) under INA 212(a)(6)(C)(1), which refers to fraud or misrepresentation. See https://www.law.cornell.edu/uscode/text/8/1182.

What this means is they believe the petition is invalid due to fraud or misrepresentation, and are returning it to USCIS for an advisory opinion/review.

 

Under current FAM instructions, a returned petition with the fraud marker that is subsequently revoked automatically turns the marker into a finding. This means there is a permanent bar on any visa.

See 9 FAM 302.9-4(B)(8)(a) https://fam.state.gov/fam/09FAM/09FAM030209.html

Quote

"Misrepresentations in Family Relationship Petitions:  USCIS retains exclusive authority to deny or revoke family-relationship immigrant visa (IV) petitions.  Thus, a misrepresentation with respect to entitlement to the classification based on the relationship, e.g., a sham marriage in an IR-1 case, cannot be deemed material as long as the petition remains valid.  Upon discovery of a misrepresentation, you must return the petition to the appropriate USCIS office via the National Visa Center.  If the petition is revoked, the materiality of the misrepresentation is established. In some cases, the relationship and petition may still be valid, but the alien may misrepresent eligibility for the classification in a different way that is not relevant to the petition's validity, and would thus still be ineligible under INA 212(a)(6)(C)(i)."

Basically, under current policy, failure to establish that you qualify for the benefit being requested automatically resulted in a permanent bar due to misrepresentation. That's not how misrepresentation was "supposed" to work - it's intended for circumstances where there is a willful, materially false statement being made. It blurred the line between failure to meet the requirements for the visa (where the burden is on the applicant) and misrepresentation (where the burden is on DOS).

 

There are gray areas between the two events ntoed above: where you fail to prove your case but didn't lie in doing so. Many cases fall into this gray area and were getting permanent bars issued as a result.

This raised a number of lawsuits, such as one described here: http://integrity-legal.com/legal-blog/us-visa-immigration/american-citizen-sues-government-over-k-1-visa-denial/

 

As a result, USCIS policy is now to not review the returned petition. Instead, they let it to expire....letting the P6C marker go with it. This lets one apply for a new K-1 or a CR-1 without having to overcome the permanent bar (via an I-601, which adds a decent cost, ~1 year to the process, etc. and requires an extreme hardship for approval).

[Imej 8]

7 hours ago, geowrian said:

Yup. This was implied in my comment as well.

 

That's not the reason. First thing I would point out is that until the early 2010s, returned I-129Fs were reviewed. This practice was then halted due to the circumstances noted below.

If you're interested, here's a very brief history lesson about this situation...

 

When A CO believes there is not a bona fide relationship, they return the petition to USCIS with a "P6C1" marker. This is a quasi-refusal (p) under INA 212(a)(6)(C)(1), which refers to fraud or misrepresentation. See https://www.law.cornell.edu/uscode/text/8/1182.

What this means is they believe the petition is invalid due to fraud or misrepresentation, and are returning it to USCIS for an advisory opinion/review.

 

Under current FAM instructions, a returned petition with the fraud marker that is subsequently revoked automatically turns the marker into a finding. This means there is a permanent bar on any visa.

See 9 FAM 302.9-4(B)(8)(a) https://fam.state.gov/fam/09FAM/09FAM030209.html

Basically, under current policy, failure to establish that you qualify for the benefit being requested automatically resulted in a permanent bar due to misrepresentation. That's not how misrepresentation was "supposed" to work - it's intended for circumstances where there is a willful, materially false statement being made. It blurred the line between failure to meet the requirements for the visa (where the burden is on the applicant) and misrepresentation (where the burden is on DOS).

 

There are gray areas between the two events ntoed above: where you fail to prove your case but didn't lie in doing so. Many cases fall into this gray area and were getting permanent bars issued as a result.

This raised a number of lawsuits, such as one described here: http://integrity-legal.com/legal-blog/us-visa-immigration/american-citizen-sues-government-over-k-1-visa-denial/

 

As a result, USCIS policy is now to not review the returned petition. Instead, they let it to expire....letting the P6C marker go with it. This lets one apply for a new K-1 or a CR-1 without having to overcome the permanent bar (via an I-601, which adds a decent cost, ~1 year to the process, etc. and requires an extreme hardship for approval).

Thanks for detailed response.

 

The take away then is that they came up with this solution of not reviewing and letting it expire along with the P6C marker (which is not perminant now-- for the applicant and probably not for the original petition) so the applicant can file a fresh petition. 

 

Does this means that the previous petition/interviews will not be considered by any involved department? Lets say they tried K1 before and now applied for CR-1. And CO asks if you ever applies for any US visa before?

 

Also, if there is a misrepresentation, is there a "misunderstanding" of CO?

 

 

Good discussion! Thanks again.

[Imej 8]

24 minutes ago, Imej said:

Thanks for detailed response.

 

The take away then is that they came up with this solution of not reviewing and letting it expire along with the P6C marker (which is not perminant now-- for the applicant and probably not for the original petition) so the applicant can file a fresh petition. 

 

Does this means that the previous petition/interviews will not be considered by any involved department? Lets say they tried K1 before and now applied for CR-1. And CO asks if you ever applies for any US visa before?

 

Also, if there is a misrepresentation, is there a "misunderstanding" of CO?

 

 

Good discussion! Thanks again.

Plus, from the lawsuit example provided above, it doesn't seem the plantiff won the case.. CO still retuns the case without providing any written reasons for denial. 

[geowrian 22,335]

1 hour ago, Imej said:

Does this means that the previous petition/interviews will not be considered by any involved department? Lets say they tried K1 before and now applied for CR-1. And CO asks if you ever applies for any US visa before?

The previous petition and visa application still exists. The visa was still refused. They can still consider anything presented on past forms and interview(s)...nothing ever goes back in the bag once it's out.

It just means there's no permanent bar for misrepresentation just because one was unable to prove their case.

 

Quote

Also, if there is a misrepresentation, is there a "misunderstanding" of CO?

I'm not sure what you mean, sorry.

 

35 minutes ago, Imej said:

Plus, from the lawsuit example provided above, it doesn't seem the plantiff won the case.. CO still retuns the case without providing any written reasons for denial. 

The CO has the ability to return the petition, and they still do this today. This would generally be covered by the doctrine of consular nonreviewability - they have the authority to make this decision using their discretion.

USCIS just doesn't review the returned petition.

Edited May 13, 2019 by geowrian

[Imej 8]

8 minutes ago, geowrian said:

I'm not sure what you mean, sorry

I mean, CO misunderstood the case and  denied it. 

10 minutes ago, geowrian said:

USCIS just doesn't review the returned petition

You mean K1 petition? Just to confirm

[geowrian 22,335]

1 hour ago, Imej said:

I mean, CO misunderstood the case and  denied it. 

You mean K1 petition? Just to confirm

COs make mistakes all the time. There's no direct consequence to them for doing so.

Correct - a returned I-129F is not reviewed. A returned I-130 is.