ellis-island

Thanh Nhien published an article of mine. USC Petitioners might find it helpful.

http://www.thanhniennews.com/2010/pages/20130725-mistakes-that-applicants-for-fiancee-and-spousal-visas-make.aspx

Bad news, but thanks for the update. What are the chances on appeal, would you surmise?

Brent said he'd always thought he'd have to win it on appeal.

At least he's in the best possible circuit to hear it.

Right now, the procedure is better than it was two years ago, when people had to wait

up to seven years to have an expired K1 reviewed. Brent is seeking to get 30 day review.

I'd think the p6c1 thing won't stand even rational scrutiny, if the 9th Circuit goes past

the standing issue.

The issue of prompt review & expiration of K1 approvals is something different.

Agencies have a lot of power to write regulations that give effect to statutes.

The expiration is (Brent is correct) purely regulatory, not statutory.

Bottom line: I don't know what the 9th Circuit will do. But I'm happy he's in the 9th Circuit.

And I pray they get past the standing issue on the p6c issue.

Oops. I should say I exchanged emails on this with Brent. I haven't talked with him on the suit recently.

The bad news is Tran v. Napolitano was dismissed on March 29, 2011.

Good news? I talked to Brent. He said he'd always planned to have to win this on appeal.

What does this mean?

It means the current system will continue for the future. K1's will expire.

Petitioners will have to marry or re-file a K-1 with an IMBRA Multiple Petition Limit waiver.

To me, the worst part of this dismissal is the Judge did not directly address the p6c1 issue.

The court simply ruled that plaintiffs had not shown they were damaged by this weird procedure

of creating misrepresentation findings out of thin air.

I think the p6c issue is still to be resolved. It's a class-action by itself.

As soon as I get a link to the decision that is outside AILA Info-Net, I'll post it.

For those who do not know about p6c's. http://www.ilw.com/articles/2010,0713-ellis.shtm

Nice work, Marc. This goes into a lot more detail on the subject than your previous article. Bookmarked!

I am curious, though - since this happens with such regularity, do you not think that CO's know what the consequences are of a petition revoked on the basis of their accusations against the beneficiary? When the beneficiary returns for an interview for a subsequently filed petition, and the CO hands them an I-601, the CO can't tell them what they misrepresented that resulted in their being inadmissible, but don't you think the CO knows the process that actually caused it, especially if the CO was the one who interviewed the beneficiary the first time?

I ask because I suspect this may go beyond the CO's simply being inadequately trained. I think some CO's may know darned well the potentially devastating consequences of a denial based on suspicion of a "sham relationship for the purpose of evading immigration law". I suspect they know they're holding a big gun here, and they know what will happen when they pull the trigger, and in many cases it's exactly what they wanted to happen. In their opinion, something smells very rotten about the beneficiary's case, and they intend to blow a huge hole in it with a P6C marker. I think it may be disingenuous of them to shrug their shoulders and claim they don't know why the beneficiary has a material misrepresentation in their file when they may very well be the CO who is responsible for it being there.

Ho Chi Minh City is ahead of a lot of consulates in many ways. I talked to a previous Chief about this problem in 2006. He began putting

the 212(a)(6)(c )(i) consequences on refusal sheets. So the officers in HCMC knew about the consequences. But Guangzhou is telling

petitioners and beneficiaries that it was USCIS that made these misrepresentation findings. So one consulate knew. One didn't.

But even if they were all aware of the consequences of revocation, that doesn't mean they know the basic nuts and bolts law behind it.

There is a difference between mere ineligibility and a material misrepresentation.

I've met a lot of USCIS people. And I've seen a lot of consulates in action. There is no comparison as far as their knowledge

of immigration law. The DHS/USCIS people know what they are doing. The whole ethos at consulates is,

"Let's give the case back to USCIS and see what they say,".

DOS supervisors in DC designed this nutty procedure. DOS is not a legal culture. DOJ/DHS are more cognizant of laws & legal consequences.

An agency can't just boot-strap brand new grounds of inadmissibility, with no record to support it, and expect not to be challenged

eventually. That's just stupid.

There is a flaw in the design here. The logic is incorrect. The law is incorrect. And this procedure was designed in Foggy Bottom.

So I don't fault the people in the field. There may be some exceptions to that too. Some of the designers may be working in the field now.

I can think of a couple. But they're not doing visa work anymore.

Hi. ILW.COM has published an article of mine that connects the dots between visa refusals, revocations & findings of material misrepresentation

against beneficiaries. It might interest some of you, particularly those people who have had visas refused.

P6c's - Department of State's War on Love, Logic & Law

ok...sorry to sound like the broken record, but i want to be sure. So...if u get a 221(g) refusal & your case is returned to USCIS through CSC...u pretty much have no choice but to refile the K1 or get married & do CR1? From the sounds of this, it looks like there is no way to get a reaffirmation from my 1st K1 petition through CSC. PLEASE correct me if i'm wrong. And is it true that you can't get a NOID from CSC without filing another petition? Is there any way to request the NOID or another way to find out the real reason for denial? And finally, Can u refile a K1 before the 1st expires? If not, what should be done with the 1st petition? Is it better to wait till it expires (what is the max mths of validity?) or withdraw the petition? I have 8 mths before I would be able to go back to get married, so I'm trying to see if I can do anything with a K1 instead. Any thoughts r welcome.

Monica

As it stood before Tran versus Napolitano, CSC sends an expiration notice. Consulates administratively close

the file. The Tran class action looks to force CSC to review the cases within thirty days. Essentially,

it's up in the air what will happen now. All bets are off.

It probably won't change until this case is decided. But I could be wrong. Several of us almost sued them last

year in a class action on the same issue. CSC & DOS changed before we could file our complaint.

Note -- I think CSC are the 'good guys' here. Class action lawsuits

should not be necessary. What is happening basically, is DHS is getting

sued for the Department of State's incompetence.

I got an email from psr by way of VJ. But it's confusing.

It's from VJ. But it says it's from psr. But it's VJ's email address.

And there is no message from psr in my email.

I'll be in PP this week-end.

Just send a PM to ellis-island at VJ or to my regular email address.

Sorry about that.

This thread probably needs to be referenced to the Tran v. Napolitano class action thread.

Because if Brent Rennison wins that case, California Service Center's policy on reviewing K1's

will change. And consular policies of returning K1 petitions would change as well.

I should point out that all consulates would be affected by the outcome of this case - not only HCMC.

So anyone who has had a K1 visa application refused at a consulate & who was notified that it had expired

by CSC would be a class member.

I'm especially glad that Brent raised the issue of P6c1 Misrepresentation findings that DOS automatically boot-straps on cases.

Every day, in consulates all over the world, US Citizen Petitioners are being damaged by 212(a)(6)( c )(i) findings,

in cases where nobody has misrepresented anything.

The petitioner doesn't know what was misrepresented. The beneficiary doesn't know what it was.

And DOS doesn't even know which agency made the finding. In Guangzhou, officers tell baffled

petitioners that USCIS made the finding. That's not true. These very damaging findings were made by DOS.

Beneficiaries become inadmissible for life because of misrepresentations that were never made.

This case raises a lot of issues I've been harping on for years. Brent did a great job.

http://entrylaw.com/tranclassaction.html

Tran versus Napolitano

I was in Guangzhou last week, I got a call from Brent Renison. My cell phone said 4 a.m. It was actually 5 a.m.

He said, "Marc, I'm filing a class-action on K1's".

I said, "It's 4 in the morning,".

Then I asked, "Which consulate?"

He said, "Ho Chi Minh City,"

After we talked a bit, I went back to sleep thinking, "That's a really nice way to start out any morning."

The last class action Brent Renison filed - he won. It got rid of the Widow Penalty

for widowed spouses of US Citizens.

I've written a lot about the problem of K1 returns by consulates, expirations & reviews.

Brent told me he'd read what I wrote on INFONET.

Brent is seeking review rather than expiration, but he wants it within 30 days.

There is another serious problem I hope can be raised in the litigation.

That's the issue of automated misrepresentation findings. But this is EXTREMELY IMPORTANT NEWS

for any US Citizen petitioners who have had K1's refused at any consulate. Stay tuned.

So in a nutshell you address the reason for the initial denial with your response to the NOID. If it is approved at the service center then this will prevent it from being denied for the same reason once it is at the consulate?

Consulates are supposed to follow their own regulations.

Assuming the section chief is actually aware of the reg, he or she

is required to follow it.

9 FAM 42.43 N2.1 "Reason to Believe"

U.S. Department of State Foreign Affairs Manual Volume 9 - Visas

9 FAM 42.43 Notes Page 2 of 7

(CT:VISA-872; 03-23-2007)

In general, knowledge and reason to believe must be based upon evidence

that USCIS did not have available at the time of adjudication and that such

evidence, if available, would have resulted in the petition being denied. This

evidence often arises as a result of or during the interview of the beneficiary.

Reason to believe must be more than mere conjecture or speculation—there

must exist the probability, supported by evidence, that the alien is not

entitled to status.

Technically, they can't deny us on the basis of age, as USCIS knew the age difference. But that doesn't mean they can't

and won't use that as a kick off point if there is anything else "off" that makes them think that it's just being used for a green card.

Just be aware that it's a red flag, and make sure your interview prep is good, and your evidence is solid.

That is good advice. I would only add that the beneficiary should make careful mental notes.

He or she should leave the interview and immediately write down what questions were asked

and what answers were given.

It's shocking, but consulates when they return petitions, do not provide USCIS with transcripts of interviews.

They don't provide recordings to justify their decision. And in the vast majority of cases, consular section chiefs

do not have the training in immigration law that is routinely provided to USCIS rookie adjudicators.

Basically, you're dealing with amateurs here. And these amateurs are telling you, "Trust us,.

Even if we're not adequately trained, "trust us. Even if we're slandering US Citizen petitioners,

you have to "trust us".

The advantage knowledgeable petitioners have in this match, is that "trust us" is not good enough.

Consulates have to put their conclusions in writing. And once they do, their reasoning, their investigative process

and even their careers are put on the line. And that is how it should be.

In most refusals, a section chief will write a summary of what the interviewing conoff has jotted down in his or her handwritten notes.

At times, the interview isn't even conducted in a language the conoff understands. In these cases, it goes from the conoff to a

foreign national translator, to the beneficiary, back to the translator and into the handwritten notes the conoff jots down in the file.

Think about that. Think about the potential for misunderstandings. Then think about what incentives

there may be for a foreign national translator to lie about what your beneficiary actually said.

After you think about that, ask yourself whether "trust us" can ever be good enough in the context of

a consular interview.

***

Concerning the age difference between beneficiary or petitioner, here are the DOS guidlines:

9 FAM 42.43 n 2.1 "Reason to believe"

"In general, knowledge and reason to believe must be based upon evidence

that USCIS did not have available at the time of adjudication and that such

evidence, if available, would have resulted in the petition being denied. This

evidence often arises as a result of or during the interview of the beneficiary.

Reason to believe must be more than mere conjecture or speculation—there

must exist the probability, supported by evidence, that the alien is not

entitled to status."

***

QUOTE (pushbrk @ Mar 2 2010, 11:49 PM)

The risk categories are low, medium, high and Lagos.

I've actually had two immigration lawyers whom I respect a lot tell me the same thing.

That's why they will no longer take cases from Lagos.

That is overly fatalistic in my view. The ways of DOS may be myriad

and mysterious, but remember, at some point, consular section chiefs

have to put their reasons for refusing a visa in writing.

And when that happens, their reasoning, their administrative procedures,

their investigation and even their careers, are put on the line.

9 FAM 42.43 n. 4.1, When Consul Disagrees with

Reaffirmation But Has No Evidence

In the rare case where you may irreconcilably disagree with the USCIS

decision to uphold the validity of the petition, if you have no new

evidence to present which was not previously considered by USCIS, you

will send the entire case to the Department (CA/VO/L/A) for review and

discussion with USCIS/HQ. Such referrals should be rare, however, since

the burden of proof still rests with USCIS and protracted delay without

sufficient reason is unfair to the visa applicant.

b. It should be remembered that USCIS bears a high burden of proof (good

and sufficient cause) in revocation proceedings. Although you may

believe that the evidence leads a reasonable person to believe that the

alien is not entitled to status, the evidence of record may not be sufficient

to meet the higher standard of proof required in these proceedings

The most important thing to remember in all this, is that consulates must eventually

justify their decisions in writing. And when that happens, it is a brand new ball game for

US Citizen petitioners. They will then have a chance to tear those conclusions to shreds.

And if they are careful, and logical, in the vast majority of cases, they will win and their

loved ones will eventually get a visa to come to America.

"VJ forumites" Word of the Day Award Nomination and definitely Post of the Day. Thanks.

So when you say "If you're filing a second K1, make sure you respond in advance to the reasons the consulate refused the first visa application." - What's the suggested/best-practice way you'd suggest? (Something like a copy of the NOID/R and supporting evidence to overcome the reason? And would this be sent with the new petition?) ~ It comes up now and then around here.

Why do you suppose they (DOS) would even do this? Inter-agency rivalry?

(1). Conduct a background check on yourself. See who the database shows is living in your home.

See who it shows is sharing assets or debts with you. If the DB is wrong, point that out in your filing.

Ditto for your beneficiary. Make sure you know where he or she is living & where the ex is living, if there is an ex.

Beyond that, peruse the various lists of red flags that are out there. I published one. There are other good ones

around as well. See if there are other red flags you may have missed.

Why do you suppose they (DOS) would even do this? Inter-agency rivalry?

The ways of DOS are myriad and mysterious. It's not for me to speculate as to why the visa gurus in

Foggy Bottom decide to do something one way or another.

It's my job to observe what they do and make careful notes. At some point, a consulate will have to put it's reasons for refusing

a visa in writing. When that happens, the entire reasoning and administrative process that led to that decision opens itself

up to closer examination, by DHS* and if necessary, by the courts.

*There shouldn't be any inter-agency rivalry anymore. DHS is in charge of the consular visa process.

DOS may not know that. DHS may not have noticed. But that's been the law since 2002.

DHS is in charge of visa issuance. I'm not sure why that agency hasn't gotten around to actually taking charge

of the process. Eventually it will. Put it in the bank.

(See sections 402 & 428) http://www.dhs.gov/xlibrary/assets/hr_5005_enr.pdf

Very interesting read - thank you. There's a recent thread here (see below) where the K1 was denied at interview for just that reason - invalidation of a labor certification. It didn't make any sense to us. Honestly it still doesn't even after reading your post. I get that they're saying it's essentially a misrep, but why the language about labor certification on a family based visa?

Either way it doesn't sound too great for the couple in the thread.

http://www.visajourney.com/forums/index.ph...244418&st=0

Concerning the labor-certification rationale for a family visa refusal, a consular officer in Guangzhou wrote:

Visa Officer Marc Cook: 212(a)(5)(A) is a proper ground of refusal for IV applicants who are determined not to be eligible for the IV category under which they have applied. For example, it is used to refuse family-based IV applicants when it is determined that the requisite family relationship does not exist (e.g., a marriage to circumvent immigration law, or DNA tests establish lack of paternity/maternity). A 212(a)(5)(A) refusal is appropriate in these cases because, once the alien no longer falls within a family-based IV category, the alien is no longer exempt from the labor certification requirement that would otherwise normally apply to immigrant applicants.

http://guangzhou-ch.usembassy-china.org.cn...cript081217.doc

So DOS uses 212(a)(5)(A) as a ground to refuse a family or K1 visa. It doesn't seem logical. But make a note

of it and save it for future reference. In my experience, these are not fatal. They are somewhat analogous to 221(g)

refusals and they can eventually be overcome.

There's a trap for the unwary here.

9 FAM 40.63 N10 MISCELLANEOUS

9 FAM 40.63 N10.1 Misrepresentation in Family Relationship Petitions

(CT:VISA-1030; 09-22-2008)

U.S. Department of State Foreign Affairs Manual Volume 9―Visas

9 FAM 40.63 Notes Page 25 of 29

Pursuant to 8 CFR 205, invalidation of a labor certification for

fraud in accordance with the instructions of USCIS or the

Department of State automatically revokes an employment-based

immigrant visa (IV) petition. On the other hand,

USCIS retains exclusive authority to disapprove or revoke

family-relationship IV petitions. Thus, a misrepresentation

with respect to entitlement to status under a family relationship

petition, e.g., document fraud, sham marriage or

divorce, etc., cannot be deemed material as long as the

petition is valid. Upon discovery of a misrepresentation, you

must return the petition to the appropriate USCIS office. If

the petition is revoked, the materiality of the

misrepresentation is established.

http://www.state.gov/documents/organization/87011.pdf

***

Every time a K1 or family visa is refused at a consulate,

a fraud marker is placed in beneficiary's file. It doesn't matter if the

officer's reasons are half-baked or just-plain wrong. That fraud marker

is still hanging there over your beneficiary's future. It's called a P6C marker.

And it will hang there until you either win a revocation, or the officer removes it.

When the petition is returned to USCIS, there is a revocation

proceeding for family petitions. Petitioner is sent an NOIR. Most of

the time with CSC, the reasons written in the NOIR mirror those written

by the consulate. It's unfortunate that CSC doesn't seem to stop

and measure the legal or factual sufficiency of consular conclusions.

But I'll take whatever I can get. CSC's failure to measure legal or factual

sufficiency makes these things much easier to win and puts routine consular

ineptitude under a magnifying glass for DHS adjudicators and supervisors to

closely examine.

But beware -- if the petitioner does not succeed in defeating that NOIR and

proving the consulate wrong, those half-baked conclusions contained in the consular

in the consular return memorandum become findings of facts by USCIS. You don't

want that to happen.

The last words of that section of the FAM I quoted are deadly.

"....If the petition is revoked, the materiality of the misrepresentation is established.

That means the fraud marker placed in your loved one's file has become a hard finding

of fraud. That means your loved one has become inadmissible for life,

under INA 212(a)(6)(c )(i), (Misrepresentation). You can apply

for a waiver. But waivers are discretionary. And they are damned

difficult.

This fraud trap set by DOS made no sense with K1's. For instance,

how can an expired petition be revoked? It's like beating a dead horse.

The thing is dead. Why are they still flaying away at it?

But DOS kept flaying away until last summer. It pretended the 120

day life period of K1 approvals did not exist. Now -- that appears to

no longer be a problem.

If an NOID is sent prior to a new K1 being approved, DOS doesn't even

know about it. It hasn't received the petition yet. But the issues raised

by the consulate in the previous petition are addressed, because CSC

now pulls the file and recites them in an NOID to the petitioner.

So once CSC approves the new petition, after the petitioner wins the

NOID or NOIR, that hanging fraud marker in the beneficiary's file has to

be taken out.

I'd hope that DOS is no longer putting the damned things into

K1 beneficiary's files anyway. It's pointless. An expired K1 is a dead

horse. It cannot be revoked. There is no legal or logical reason 'for that fraud marker

to ever take hold in a K1 case now.

Hi. This is a 'head's up' to any petitioners who have filed a second K1 petition

after their loved one's first visa application was refused at the consulate.

I have some news for you. Recently, I saw a K1 NOID from CSC

that was different from what I've seen in the past.

This new case was one where the petitioner had filed a 2009 K1 petition

and the beneficiary was refused at the consular interview. California

sent petitioner a notice of decision that the petition had expired, but

that the petitioner could refile and pay a fee.

So petitioner refiled and paid the fee. Then, before approving the new K1 petition,

CSC sent petitioner an NOID, (Notice of Intent to Deny). And it required a response

within 30 days.

Here is the interesting part, the allegations in the NOID came from the

previous consular interview, not from the new petition filing.

So, CSC had pulled the previous K1 petition file and quoted the consular officer's

reasons for denying the previous K1 visa application. But CSC had done this in the context

of approving a new petition.

Remember, the new petition has a 2010 case number.

The old petition had a 2009 case number. It had already been approved

& had expired. So CSC here was using the 2009 reasons to justify

denying the 2010 petition.

The old 2009 K1 petition and the consular memorandum were not

reviewed UNTIL petitioner filed a new K1 petition for the same

beneficiary. At that point, CSC promptly reviewed them and sent out an

NOID.

This is a better & fairer system for US citizen petitioners than what CSC

& the consulates were doing last year. Some of you might recall, there

was almost a class-action lawsuit against CSC over the issue of

reviewing expired K1's returned by consulates. Consulates were sitting

on re-filed petitions waiting for CSC to review them -- and that was

never happening.

This is not a problem now. There is no danger of a consulate sitting on

the case waiting for CSC to move -- because the consulate does not

have the new case yet. It hasn't even been approved. It hasn't even been

sent to NVC yet.

There is no danger of waiting years for CSC to review an expired K1

petition that has been returned by a consulate -- because that old

petition is dead. It has expired. And the consular reasons for refusing it

have died with it, UNLESS the petitioner files a new K1 petition. At that

point, the consulate's reasons are revived and addressed in the NOID

procedure.

Personally, I think this is a better system all around.

What should you do?

If you're filing a second K1, make sure you respond in advance to

the reasons the consulate refused the first visa application. For

instance, if one of the problems was photographic evidence, include a

lot of photos. If the consulate concludes that one party is still living

with an ex-spouse, include evidence that it ain't so. If you don't know

why it was refused, you need to find out.

The vast majority of the time, I already know why a consulate refused

a case just by interviewing the parties. Even if the consulate doesn't

list them on the OF-194 refusal sheets, I can usually figure it out.

I'm sure a lot of veteran VJ forumites can figure it out too.

Anyway, you should do that as a matter of practice anyway. If you file

an I-130 after a K1 was refused, address the reasons it was refused

when when you file. That may save CSC the necessity of sending you

an NOID (K1's) or an NOIR (CR/IR-1's).

Finally, another reason I like this system is that it removes the old

inadmissibility trap found in 9 FAM 40.63 n8.1 that ruins the futures of

so many couples.

I'll get to that in the next post.

Reminds me of how copper wire was invented...two attorneys fighting over a penny.

Perhaps you'd like to explain exactly what this means?

It implies that two attorneys are holding firmly to the same penny and pulling on it so that it stretches so much that it resembles copper wire.

T-Bone Tex:

"06-30-2008 = Stokes Interrogations w/Ecuadorian (not USC)..."

That is what my point is all about. Foreign national "investigators" making false

accusations against US citizen petitioners.

Your Stokes interview wasn't in Ho Chi Minh City. So why is AILA focusing

on HCMC? What happened to you is happening to US Citizens all over the world.

Hi.

Several months ago an AILA* Board member contacted me and told me that

AILA was going to complain to DOS about the US Consulate in Ho Chi Minh City.

Apparently a lot of clients and lawyers were having a hard time.

(*American Immigration Lawyers Association)

I told the gentleman I thought it was a stupid idea to focus on one consulate,

when the problems with DOS are systemic, long-term and emanate from

management in Washington, DC - not from Ho Chi Minh City.

I also told him, that in some ways, giving specific reasons for refusals

on OF-194's, for example, HCMC is better than most consulates. Most consulates

just hand out bland, non-informative boilerplate on their refusals.

Anyway, I was confident nothing would happen, because AILA was involved.

I was right. Round I - nothing happened.

Round 2 has apparently started. I was contacted by a different board member and a

complaining attorney yesterday. But this time, they have some kind of organized

way to approach it.

I told them the same thing. It's a stupid idea to focus on one consulate.

Foggy Bottom is in Washington DC. AILA is in Washington, DC. Why don't

they take a taxi over there and complain to the people in the Visa Office?

I did make two recommendations to AILA if it wants to do something useful.

I thought I'd share those with VJ forumites. Some of you might find one or

both of them interesting. They're not limited to HCMC.

I'll post on developments as I learn of them.

"Thanks.

I have not complained about this consulate.

Two suggestions, if AILA wanted to do something useful, it could:

(1). Teach its members how to properly file an immigrant visa petition.

It's always a nice thing to interview the beneficiary - even if she lives in

a foreign country. Most immigration lawyers don't do that.

It's often helpful to conduct a full background check on the petitioner. By doing that,

a lawyer can point out problems in advance, the case is likely to encounter at a consulate.

The consulate sure as Hell will do that. The vast majority of immigration lawyers don't even interview

foreign beneficiaries and don't bother even to check who else is living in the petitioner's house, who

he might be sharing a checking account with, or carrying on his income tax or insurance.

That kind of legal practice is setting a client up for an ambush when the case gets to the consulate.

And you can't blame consular officers for immigration lawyers not knowing what the hell they are doing.

(2). Another helpful thing would be to bring the conduct of foreign national consular "investigators"

to the attention of a Federal District Court Judge in the DC Circuit. Perhaps there are some extra lawyers

sitting around AILA who could help out. .

Quite often, US Citizen petitioners are wrongly accused of marriagefraud.by these bozos. They operate in

a perverse system where DOS management expects them to find fraud, So they often make stuff up to please

their bosses.

It is not uncommon. Query your members about it and learn something.

This amateurish system set up by DOS results in serious damage to the lives and futures of US Citizen petitioners.

It happens in consulates around the world. It happens here. But it also happens elsewhere.

If AILA could query its members about the examples of this abuse they've seen, you will hear some horror stories.

A very good lawyer told me that one of his clients had a heart attack and died, when he first read what a consular

"investigator" had accused him of.

American families are being abused by this system. I don't understand why there is a focus on the line officers

in Ho Chi Minh City. That's ridiculous.

They work in a system. They have bosses. It's DOS Management in Washington who are responsible for the mess.

And it needs to be brought to the attention of a Federal District Court Judge. I will be happy to help and to give

specific case numbers and name names.

False allegations of fraud by foreign national investigators are causing damage to US Citizen Petitioners.

That is the bottom line. Maybe some of the lawyers in AILA might be intersted in that. .

Probably not.

m.e. "

BTW, here is a blog I write. The first 3 links are about K-1 denials.

LINK

The information is as up-to-date as yesterday.

FWIW:

"...he referred me to a place that studies cases and coaches you for the interview in the consulate. We're currently waiting on word from the consulate before we go ahead with that."

I don't do that. I people in my office who help with interviews. I've never referred any client to anyone outside

of my offices to be coached for an interview. That would be nuts.

I don't recall the case. But if someone referred you to an office that was not one of mine, it wasn't me.

I'm outside VN right now. Back tomorrow.

Feel free to call.

All the Best,

m.e.

The reasons usually are petty. As I said, they were fishing for an excuse to deny the visa and return the petition. There is abundant evidence that the CO has made up their mind before your fiance ever gets to the window for the interview. This is evidenced by the fact that many of the girls see the paper - white, blue, green, or pink - already filled out and ready to be signed by the CO at some point during the interview. There is also evidence that the final decision as to which paper to fill out and have ready is made between the time your fiance is called up to submit her documents, and the time she is called up for the interview, though it's probable they have a pretty good idea which way it's going to go before she's called up for the documents.

The point is that they didn't like your package before they asked her a single question, and were intent on denying, so they grilled her.

So, let's see if we can reverse engineer this and figure out what they REALLY didn't like about it.

How many times did you visit her before asking her to marry you? How many times before you submitted the petition? How many times before she went to the interview? How long was each visit?

Were you present in HCM when she interviewed? You can't actually go into the interview, but it seems to help a LOT if the CO knows you are there waiting for her (they often DO ask).

Did you have an engagement ceremony? If so, how many people attended the party? Did you include any pictures of this with your petition?

Did you have pictures of you with her family? Were these included with your initial petition?

You were introduced by a relative of hers (this is always a red flag). Did you address this in the petition, and describe how you knew her relative? In cases like this they will always suspect that the relative was setting you up to get their family member to the US. You have to bend over backwards to make it clear that YOU were in charge of the relationship from the beginning. If the family member aided you in any way, such as helping to pay for your visits, then it looks very bad to the CO. It looks like the family was buying her an American husband.

I realize many of these things aren't needed by USCIS, so it might seem pointless to include them with the initial petition. The point, as I said above, is that the decision is often made before the interview begins, which means before they have an opportunity to see the evidence your fiancee brought to the interview. Adding the evidence to the petition helps to ensure that the CO will actually see it, since they often don't even ask for much at the interview.

Anyway, give it some thought and let us know. Also, it wouldn't hurt to start a thread in the regional forum and describe your experience. You'll get lots of advice, but more importantly your experience will help others who are just getting started.

1. The first time I met her in person was when I asked her to marry me. I was there for two weeks and submitted the petition upon returning.

2. I was not present for the first interview, but when it was denied I hopped on a plane to confront the consulate and was granted another interview with the visa chief himself.

3. We had an engagement ceremony and invited almost 80 of her relatives, several pictures of the ceremony were included in the petition.

4. We have many pictures of me with her and her family and a sampling of them was included in the petition.

5. I included a letter with the petition (I don't remember if it was required or not, but my lawyer told me to write it and what all I needed to say in it) about how the relationship started and progressed and made it clear that there were no financial contributions from my fiancee's family in the US towards the relationship.

The whole system is very unfair towards the innocent petitioner/beneficiary, where we have to as you said, "bend over backwards" to prove that our petition is true. I should think that the very fact that there are little inconsistencies here and there would add more evidence that the relationship is real rather than a spotless, orthodox relationship petition would be. The relationship between my fiancee and I is by no means "normal" but we are held to the standards of what is perceived in the mainstream to be a "normal" relationship.

This post is for petitioners whose I-130 petitions have been returned to USCIS

by consulates. Get ready.

I've been retained on at least a half-dozen new NOIR cases from

CSC in the past two weeks. It's astonishing! (Note: I've seen no K-1/NOID's).

Make sure USCIS has your correct address - if you're a USC Petitioner.

The NOIR's are from Vietnam, Mid-East and China.

CSC is moving these cases out. Rather than examining the consular memorandum's assertions,

as I commended VSC for doing in my immigration law blog*, most CSC adjudicators seem to be just quoting

the consular memorandum.

(*My TWITTER ID = chaleck. I post updates to my immigration law blog on TWITTER.)

I saw one NOIR today though, where the adjudicator had reduced the case to a single issue. Thumbs up to that adjudicator.

But if you're an I-130 petitioner in the US who has had your petition returned to CSC - get your evidence ready.

Remember "Matter of Ho"- I quoted in my case law thread in my immigration blog*. The burden of proof is on Petitioner -

not the consulate and not USCIS. Essentially, you have to prove your case all over again.

So get your evidence of trips abroad, of frequent and lengthy communication, phone bills, emails, chats, photographs.

Respond to each conclusion stated in the NOIR. Break them down if necessary. I've found that's helpful.

Get your evidence together. Two hole punch them at the top and index them by tabs. The most bothersome thing

to get together are the translations. Translations are more of a problem in my Vietnam cases than in my Chinese cases

or cases in other consulates.

But if you have hundreds of letters, emails & chat pages that need translating from another language - get to work.

Or else hire someone to do them for you. And remember translations have to be certified by the translator -

they don't need to be notarized. Translators don't need to have any special qualifications. They simply

need to be competent in English and in the language that is being translated into English.

Don't let them charge you for a rain dance. Don't get ripped off by translators.

8 CFR 1003.33 - Translation of documents.

Any foreign language document offered by a party in a proceeding shall be accompanied by an English language translation

and a certification signed by the translator that must be printed legibly or typed. Such certification must include a statement that

the translator is competent to translate the document, and that the translation is true and accurate to the best of the translator's abilities.

These cases are flying out of CSC right now. So get ready.

the Homeland Security Act of 2002 (Sections 402 & 428) put DHS --- not DOS in charge of thee visa process. And lawyers have had success reaching DOS through suing DHS.

Fascinating... and without being branded as subversives?

DHS/USCIS is suable. They are essentially DOS's boss as far as supervising the visa process.

Mr. Ellis, this is the first that I had heard of this, despite months of deep Internet-searching last year as a result of having been hosed in Guayaquil. Can you please approach Captain Ewok with the idea of creating a pinned thread, in which you present some of this enlightenment and provide links or references?

Brar vs. DHS is a fun read.

Probably one of the few in this dreary process... how strongly does it serve as precedent? Is it under challenge for potential reversal?

Consular immunity is known as CNR to lawyers. Consular non-reviewability of visa decisions.

That's still in the law. I think it was mainly put there though to prevent foreign visa applicants

from having access to US courts. But now it means that not even US Citizen petitioners can sue

DOS over a visa refusal.

But in fact, now there is reviewability now, by DHS under the Homeland Security Act.

DHS can order a consulate to refuse a visa. It is required to train consular officers in

proper standards of adjudication. And as you see in the Brar case, it can probably do a lot more.

I'm not sure how much value it has as a precedent. But it's out there. Lawyers have been winning Mandamus

actions against consulates while suing DHS at the same time. But a Mandamus only gets you a decision.

It may not get you the decision you want.

Homeland Security Act of 2002

The term, "The Secretary" means Under Secretary for Border

Transportation Security

SEC. 402. RESPONSIBILITIES. (Note - check out (4)).

The Secretary, acting through the Under Secretary for Border

and Transportation Security, shall be responsible for the following:

(1) Preventing the entry of terrorists and the instruments

of terrorism into the United States.

(2) Securing the borders, territorial waters, ports, terminals,

waterways, and air, land, and sea transportation systems

of the United States, including managing and coordinating

those functions transferred to the Department at ports of entry.

(3) Carrying out the immigration enforcement functions

vested by statute in, or performed by, the Commissioner of

Immigration and Naturalization (or any officer, employee, or

component of the Immigration and Naturalization Service)

immediately before the date on which the transfer of functions

specified under section 441 takes effect.

(4) Establishing and administering rules, in accordance

with section 428, governing the granting of visas or other

forms of permission, including parole, to enter the United States

to individuals who are not a citizen or an alien lawfully

admitted for permanent residence in the United States.

(5) Establishing national immigration enforcement policies

and priorities.

(6) Except as provided in subtitle C, administering the

customs laws of the United States.

(7) Conducting the inspection and related administrative

functions of the Department of Agriculture transferred to the

Secretary of Homeland Security under section 421.

(8) In carrying out the foregoing responsibilities, ensuring

the speedy, orderly, and efficient flow of lawful traffic and

commerce.

---

SEC. 428. VISA ISSUANCE.

(a) DEFINITION.—In this subsection, the term ‘‘consular office’’

has the meaning given that term under section 101(a)(9) of the

Immigration and Nationality Act (8 U.S.C. 1101(a)(9)).

(b) IN GENERAL.—Notwithstanding section 104(a) of the

Immigration and Nationality Act (8 U.S.C. 1104(a)) or any other

provision of law, and except as provided in subsection © of this

section, the Secretary—

(1) shall be vested exclusively with all authorities to issue

regulations with respect to, administer, and enforce the provisions

of such Act, and of all other immigration and nationality

laws, relating to the functions of consular officers of the United

States in connection with the granting or refusal of visas,

and shall have the authority to refuse visas in accordance

with law and to develop programs of homeland security training

for consular officers (in addition to consular training provided

by the Secretary of State), which authorities shall be exercised

through the Secretary of State, except that the Secretary shall

not have authority to alter or reverse the decision of a consular

officer to refuse a visa to an alien; and

(2) shall have authority to confer or impose upon any

officer or employee of the United States, with the consent

of the head of the executive agency under whose jurisdiction

such officer or employee is serving, any of the functions specified

in paragraph (1).

© AUTHORITY OF THE SECRETARY OF STATE.—

(1) IN GENERAL.—Notwithstanding subsection (b), the Secretary

of State may direct a consular officer to refuse a visa

to an alien if the Secretary of State deems such refusal necessary

or advisable in the foreign policy or security interests

of the United States.

(2) CONSTRUCTION REGARDING AUTHORITY.—Nothing in this

section, consistent with the Secretary of Homeland Security’s

authority to refuse visas in accordance with law, shall be construed

as affecting the authorities of the Secretary of State

under the following provisions of law:

(A) Section 101(a)(15)(A) of the Immigration and

Nationality Act (8 U.S.C. 1101(a)(15)(A)).

(B) Section 204(d)(2) of the Immigration and Nationality

Act (8 U.S.C. 1154) (as it will take effect upon the

entry into force of the Convention on Protection of Children

and Cooperation in Respect to Inter-Country adoption).

© Section 212(a)(3)(B)(i)(IV)(bb) of the Immigration

and Nationality Act (8 U.S.C. 1182(a)(3)(B)(i)(IV)(bb)).

(D) Section 212(a)(3)(B)(i)(VI) of the Immigration and

Nationality Act (8 U.S.C. 1182(a)(3)(B)(i)(VI)).

(E) Section 212(a)(3)(B)(vi)(II) of the Immigration and

Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi)(II)).

Section 212(a)(3)© of the Immigration and Nationality

Act (8 U.S.C. 1182(a)(3)©).

(G) Section 212(a)(10)© of the Immigration and

Nationality Act (8 U.S.C. 1182(a)(10)©).

(H) Section 212(f) of the Immigration and Nationality

Act (8 U.S.C. 1182(f)).

(I) Section 219(a) of the Immigration and Nationality

Act (8 U.S.C. 1189(a)).

(J) Section 237(a)(4)© of the Immigration and Nationality

Act (8 U.S.C. 1227(a)(4)©).

(K) Section 401 of the Cuban Liberty and Democratic

Solidarity (LIBERTAD) Act of 1996 (22 U.S.C. 6034; Public

Law 104–114).

Section 613 of the Departments of Commerce, Justice,

and State, the Judiciary and Related Agencies Appropriations

Act, 1999 (as contained in section 101(b) of division

A of Public Law 105–277) (Omnibus Consolidated and

Emergency Supplemental Appropriations Act, 1999); 112

Stat. 2681; H.R. 4328 (originally H.R. 4276) as amended

by section 617 of Public Law 106–553.

The OP might want to write a PM to Marc Ellis (immigration attorney), who is a member of VJ under the name ellis-island.

It would be very interesting, and perhaps valuable to many VJ members, to hear what Mr. Ellis says about an advance letter.

I emailed Marc so we'll wait for his answer. Good idea.

If the case is refused & returned, ask the congressional rep for a copy of the return memorandum,

or at least the specific factual reasons - not boilerplate - the visa was denied.

Most of them won't carry it that far. They'll just 'express an interest' and the consulate will send

back a bland boilerplate reply. Then your rep will say, "so sorry, nothing more we can do."

We had one recently from Mary Landrieu that DEMANDED in very strong terms a re-interview.

It demanded that I be present at the re-interview. It pointed out the out dated information

a refusal had been based on.

Rather than go through the hassle of trying to reply to a certain loser of a refusal -

point-by-point, the chief took the easy way out and approved the visa, over-riding

the interviewing officer.

If your Congressional rep gets pissed off at the way his or her constituents are being treated --

they can help a lot. If they don't care, they won't be much help.

"Oaths at USC Services offices " - What is this? I have not read anything regarding to this? Mr. Ellis, can you please explain in details? Thanks

US Citizen Services Offices in Consulates. You can swear affidavits there for a fee.

Concerning consulates being untouchable, the doctrine of Consular Non-Reviewability is limited to

visa decisions. However, the Homeland Security Act of 2002 (Sections 402 & 428)

put DHS --- not DOS in charge of thee visa process. And lawyers have had success

reaching DOS through suing DHS.

DHS/USCIS is suable. They are essentially DOS's boss as far as supervising the

visa process. There have been a few district court cases where a Federal Judge

orders DHS to order a consulate to do something.

Brar vs. DHS is a fun read. It's a 2004 case from Seattle.

A US District Judge orders USCIS to instruct a consulate to take

certain actions and to follow certain guidelines.

There are others out there, mostly Mandamus actions.

The Judge wrote:

'The court orders CIS to reinstate approval of Plaintiffs’ I-600 visa

petition and grant Plaintiffs all relief they would have been entitled to had their petition

not been revoked. See Paunescu v. I.N.S., 76 F. Supp. 2d 896, 903 (N.D. Ill. 1999). CIS

shall return Plaintiffs’ approved visa petition to the Embassy for a new determination

which must be completed within 60 days of this order. CIS must instruct the consular

officials reviewing Plaintiffs’ approved visa petition to follow the guidelines established

by the State Department in the Foreign Affairs Manual. Finally, CIS must instruct the

consular officials that denying Ms. Kaur’s visa based on her residence with her surviving

mother, or her lack of a court order when she has an adoption deed, is an abuse of

discretion and contrary to law.

Dated this 22nd day of December, 2004

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

AMARJIT S. BRAR, et al.,

Plaintiffs,

v.

TOM RIDGE, Secretary of the Department

of Homeland Security, et al.,

Defendants.

CASE NO. C04-1401JLR

ORDER

Thank you for reaffirming this wisdom, Mr. Ellis. And, please: someone needs to shine a floodlight on the rogue U.S. consulate in Guayaquil, Ecuador for its consistent, willful disregard of 9 FAM 42.43. What will it take for you to do this?

Is it a K-1? Or a CR/IR-1/K-3?

Usually, lawyers can't change the minds of Chiefs of Visa Sections. Sometimes we can.

Most of the time, we have to beat them at the Service Centers.

When the case comes back, the 42.43 issues that caused the return

have been decided and to refuse again, the consulate has to dig up something new.

Consulates use databases and do basic internet searches on petitioners and sometimes Beneficiaries.

Quite often the database information is out of date. It is not double checked by anyone. The Chief signs off on the

officer's refusal, based on obsolete information. It happens hundreds of times at consulates all over the world.

I had an interesting case this week. We pointed out the consulate's conclusions were based on badly out of date

information it had dug up in a database. I was able to point out the errors in the consular information. That along with

an extremely irate letter from Senator Mary Landrieu...very...very...irate. I've never seen a Senator's letter like it,

allowed us to turn the case around at the consulate. Beneficiary got her visa.

I've seen good letters from Senator Landrieu and from Senator Kent Conrad's offices. I wish more congressional

liaisons would get on board. They have power. DHS has power. Neither congressional liaisons nor DHS seem to be

aware of the power they have to change procedures at consulates.

And Senator Landrieu's liaison was kind enough to forward my information about visa refusals based on out-of-date

information to Washington. It may be a black hole. Or maybe one of these days, we may hear something about it.