My wife’s CR1 was denied and sent for administrative processing and been waiting for 1 year and half

[Elon 17]

Hello VJ,

I find myself in a very similar situation that I have seen here(but some policies seem to have changed). In 2018 and 2019, my wife's agent lied on her applications (Student visa and Tourist visa), falsely stating that she was married when she was not (he invented a name for her spouse). Both visa applications were denied based on 214b. When I petitioned for her by filing out I-130 after our marriage in 2021, it was approved. However, during the interview, the visa was denied, and the case was sent back to the USCIS. I am still awaiting their response, and it has been one and a half years.

Now, we have a son who has obtained his US passport and lives with his mother. It has been tough, but I adhere to a rule: if there is nothing I can do about a situation, I don't need to worry about it. I consulted with lawyers, and many advised filing a waiver (the challenge with the waiver is meeting the extreme hardship clause). Most lawyers in the US lack experience with these cases, and many have lost them.

So, I've decided that if the USCIS sends the motion to revoke, I will have to appeal. I'll attempt to argue that the misrepresentation was not material, as stated by the attorney general and some Department of State manuals. You can find more information about the misrepresentation of material fact in this link: FAM Section 30.2. It states that if an applicant was found ineligible for a visa under a different and unrelated ground of ineligibility (such as INA 214(b)), a subsequent discovery that they had misrepresented certain aspects of the case would not be considered material. This is because the misrepresented facts did not tend to lead to an erroneous conclusion.

For instance, if an applicant made a misrepresentation on the visa application about having a well-paying job to show they have a residence abroad, but before the misrepresentation was discovered, the visa was refused because the applicant could not, on the known facts, qualify as a nonimmigrant, the subsequent discovery that the applicant misrepresented their job status would not support a finding of materiality. This is because it had no bearing on the proper adjudication of the case. An applicant will never be ineligible under INA 212(a)(6)(C)(i) if they can demonstrate eligibility based on the true facts. Therefore, an assessment of ineligibility under this ground is not complete until the true facts, considering the applicant's misrepresentation, have been considered.

The applicant bears the burden of establishing the true facts and bears the risk that uncertainties caused by their misrepresentation may be resolved against them. However, if the true facts support a finding that the applicant is eligible for a visa, the misrepresented fact is not material.

I am not currently using a lawyer as they are very expensive. Any ideas and plz be nice. Happy new year 2024

Thank you all.

[Boiler 43,687]

Normally a Consulate would issue a RFE for the missing document, in this case the Divorce Certificate from the prior marriage.

 

If they believe that she was not married previously then they would refuse the visa bot give the opportunity of filing a waiver, most well prepared waivers are approved.

 

I do not think I have heard of a case being returned, well not for this reason, certainly for other reasons.

 

Do you know why the case was returned.

 

Which Consulate?

[Elon 17]

@Boiler  so at the interview in US embassy in Rwanda, my wife was issued a paper saying that the visa is denied under 221g for administrative processing that she doesn’t have to do anything.US consular officer said that she is returning her case for administrative processing but CEAC never reflected that. It is still showing that the case is still at US embassy. So I didn’t know that it was returned until I filed for Freedom of information act to the USCIS.  The consular officer had notes that USCIS might need to consider new information that they have missed.when I filed her I-130, I didn’t know that she lied on her previous non immigrant visas, so I filed the I-130. She was never been married before and she told the consular officer that she was never been married.

Edited January 9 by Elon

[Boiler 43,687]

To state the obvious she swore under oath twice that she was married.

 

Probably does not help that you did not know, questions the relationship.

 

I assume they returned the case to USCIS as they approved the I 130 not knowing about these issues.

 

There are two options in my mind.

 

Refile an I 130 being upfront about her past situation.

 

File a Writ of Mandamus to get action on the current case.

 

Either way this is going to be a long and expensive process with possibly an insoluble road block. I would also be working on a plan B.

 

Edited January 9 by Boiler

[SalishSea 16,851]

Honestly, we have seen many cases like this (all from African countries), and I've never seen someone come back and report a success story.  Not to say that it doesn't happen, but if it does, no one has come back to tell.

 

The problem you have here is that she lied to try to gain a material benefit (a visa).  Now she wants an immigrant visa through marriage that requires her to show legal dissolution of all prior marriages, which she cannot do, since it was a lie.

 

IMHO, you should think very seriously about relocating to Rwanda.

[Elon 17]

@Boiler you are right, poor judgment on her part, she didn’t think it will affect our process. A lot of people in Africa don’t understand US laws and they really messed up like that.I have known her for longtime, I wish she asked me for advice before she did.I guess we started dating, she didn’t think as a big deal..or maybe it’s my bad that I didn’t question about her past.. to be fair though she didn’t dive into my past too so…. I have already filed the writ of mandamus. And I am waiting. Thanks a lot for ur input

[Elon 17]

@SalishSea thanks for your input. You are right.. I read quite few myself And they all from Africa. So they are many scammers ( Cyber thieves) promising people that they will get visas if they apply for them. People will pay them and those people lie on victim’s applications and tell them what they should say. It’s sad but with internet being available in Africa and technology advancing, hopefully we won’t be seeing more cases like that.I think about relocating, it’s been hard not being with my wife and son.

[SalishSea 16,851]

14 minutes ago, Elon said:

I have already filed the writ of mandamus.

What do you hope to achieve by this?

 

I don't think you're getting the crux of this situation, which is:  it doesn't matter that she didn't get a visa with the fake marriage claim on the visitor visa application.  What matters is that she cannot show evidence of dissolution of that fake marriage, so she is ineligible for a spousal visa, which requires that the two spouses were legally eligible to marry.  She cannot prove she was single when she married you.

 

Writ of mandamus, appeals etc cannot change the facts in this case.

[Pinkrlion 2,611]

What you wrote is irrelevant to this case. USCIS sees that she claimed she was married on 2 different visa applications. It does not matter if she did not succeed in being issued a visa.     Did turn in a fake marriage certificate?
 

They want her divorce documents to prove she was free and able to marry you. 

[nastra30 2,039]

Op, this is not looking good. We have not seen a successful case similar to yours here on VJ. Perhaps, you can keep us updated if you succeed but I doubt. She lied twice under oath about being married to beat the system and that can't be undone.

[D-R-J 156]

I do wonder if you are willing to devote the time and money to this if it can be overcome. It would seem that you are outside of do it yourself territory. Do you have a good lawyer and the money necessary to pay them

for a long time? If not, when interviewing I’d ask if they had ever dealt with a case like this and had a successful outcome.  If you can’t find a lawyer that had success with this issue you are probably wasting your time and money. Please keep us informed, this issue seems to come up, but we don’t hear back from people.

Edited January 9 by D-R-J

[Crazy Cat 39,575]

9 hours ago, Elon said:

In 2018 and 2019, my wife's agent lied on her applications (Student visa and Tourist visa), falsely stating that she was married when she was not (he invented a name for her spouse).

We have seen this many times before here on Visa Journey.  I have never seen a case successfully end with an immigrant visa.  I'm not sure how you can fight this without a very, very good attorney. 

[Boiler 43,687]

10 minutes ago, D-R-J said:

I do wonder if you are willing to devote the time and money to this if it can be overcome. It would seem that you are outside of do it yourself territory. Do you have a good lawyer and the money necessary to pay them

for a long time? If not, when interviewing I’d ask if they had ever dealt with a case like this and had a successful outcome. Please keep us informed, this issue seems to come up, but we don’t hear back from people.

I am not currently using a lawyer as they are very expensive. 

 

Certainly not normal to DIY a WoM but it has been done.

 

I am not saying it is impossible, there is a potential route very much depends how USCIS and the Consulate react.

[carmel34 3,533]

9 hours ago, Elon said:

I have known her for longtime, I wish she asked me for advice before she did.I guess we started dating, she didn’t think as a big deal

Lying on two non-immigrant visa applications (F1 and B2) about marital status is material, and also taken very seriously because the applicant signed the DS-160 verifying that all information is true and accurate.  Another problem is that she also lied about this if questioned in the visa interviews, making the situation even worse.  As to the purpose of her visit, if it was to visit you and she did not disclose this on the forms or interviews, it could add to the lack of confidence that USCIS/DOS have in her truthfulness.  Yes, a waiver is possible in misrepresentation situations like these, but it is only available at the discretion of the officer, you can't force a waiver with a WOM.  I suggest that you start working on plan B and move to her country.

[JeanneAdil 6,239]

your wife was denied for misrepresentation by the embassy and case is over

 

there is no NOIR or NOID to follow to be able to respond  as she is barred for a US visa 

 

 Since the elements required for fraud also include the elements for willful misrepresentation, the person is also inadmissible for willful misrepresentation.

 

When making the inadmissibility determination, the officer should keep in mind the severe nature of the penalty for fraud or willful misrepresentation. The person will be barred from admission for the rest of his or her life unless the person qualifies for and is granted a waiver. The officer should examine all facts and circumstances when evaluating inadmissibility for fraud or willful misrepresentation.

 

https://www.uscis.gov/policy-manual/volume-8-part-j-chapter-2