diavatirio

This discussion has gotten too long and I feel like i have lost track of where the disagreement is. It started from a broad statement I made, saying essentially that USCIS has the final word on the bona fides of a relationship and explaining the benefits of front loading the initial petition, since the authority of consular officers is somewhat limited as per the state department cable.

I got an unsubstantiated response by Tahoma, that there is some sort of difference between spouse and fiance petitions with respect to who considers the evidence of a bona fide relationship. Vanessa and Tony correctly stated that I-130's require evidence of a bona-fide relationship - but that is a fairly recent thing not incorporated in law - as far as the law is concerned, USCIS has always been charged with determining the bona fides for both I-130 and I-129F petitions.

Celeste's next comment explained that the cable refers to petitions returned to USCIS - but a visa that results in a denial associated with the bona fides of a relationship normally results in a returned petition, so I am not sure i understand this comment.

Vanessa&Tony next explained the overall process once again, and I didn't see what it was that I said that conflicted their words.

On the following message Vanessa&Tony goes on and on with a tirade about my ignorance and naivety about the process based on me accidently calling a fiance petition an immigrant petition and how i don’t know what i am talking about. Hard not to take this personally, when I have a J.D. degree from a top school, was managing editor in the immigration law journal, have seen a number of petitions first hand and been researching immigration law for more than ten years.

Tahoma next writes a few things that appear to be generally in agreement with what i wrote. He writes that even if a petition is front loaded, new evidence may come out after the petition is submitted. This does not take into consideratino however that the red flags (age difference, no common language, and all the rest Ellis writes about) generally dont change with time. Finally he asks me to link to anyone whose K-1 petition was denied by the USCIS for failure to prove a bona fide relationship without the petition ever having reached the USEM level. Well i havent seen this happen either, and I don’t see how anything I said implies I should have.

In any case, i dont think there is any point in discussing any of this further. I don’t even see what the disagreement is anymore, and arguing for the sake of arguing is counterproductive.

Best wishes to all and good luck with the process.

IT'S NOT AN IMMIGRANT PETITION!!! A fiance visa is a non-immigrant visa :S

What petition are you talking about? Are you talking about the K1 petition? Because evidence of relationship is not a requirement. If you're talking about the visa application that's not a petition.

The embassy's authority is not limited. THEY decide whether to approve or deny your application for a visa. THEY decide whether to send your visa application for revocation. then you wait 6+ months for USCIS to readjudicate your petition and decide whether to reaffirm or deny. The embassy's power is much stronger than you seem to think it is.

I'm sorry but you do not know what you are talking about in regards to K1 petitions/visa applications. They are different to spousal visa applications/petitions.

They are NOT married. It's a FIANCE VISA APPLICATION!! You are talking about front loading which does sometimes help but not always.

Evidence of relationship (NOT MARRIAGE) is presented at the embassy stage and the EMBASSY determines whether your relationship is valid or not.

You are very naive about this whole process.

I misspoke when i referred to the petition as an immigrant petition. As for the rest, I think Marc Ellis' article is also agreeing with me, see http://www.ilw.com/articles/2006,0323-ellis.shtm

Note that he specifically refers to the K-1 visa example at the beginning of the article and writes "These are the facts we’re using for the article."

No point discussing this further anyway.

This is why red flags should be addressed by frontloading the petition. This makes it more difficult for the consular officer to claim that USCIS didn't know about it when the petition was approved.

I think you are repeating my words exactly.

You are misreading. For a K1 there are TWO separate processes. The K1 petition stage (mentioned in your quote above) and the K1 visa stage. The petition is adjudicated prior to reaching the embassy. That's when the petition is approved (they have sufficient evidence that they met in person and meet all the requirements to APPLY for a visa), then it gets sent to the embassy where the EMBASSY decides whether the relationship is valid or not.

If the EMBASSY determines that the relationship isn't valid then they return the application to USCIS to get the petition revoked. If USCIS reaffirms the petition then the embassy with schedule a second interview for the visa application. If USCIS revokes the petition approval, they need to refile.

I don't disagree, and i dont think anything i wrote earlier contrasts this. The point is just that the embassy's authority is somewhat limited as indicated on that cable - and you can take advantage of this by preparing the immigrant petition appropriately.

That's for cases that are RETURNED to USCIS for further review, and even so, if USCIS wants to reaffirm a case, they send it to the Embassy for a 2nd interview; which leaves the Embassy with full control again.

What Tahoma said was correct.

Read the seventh paragraph from that link titles "No readjudication of petitions." The language is clear. The only difference between fiance/spouse petitions has to do with issues of validity and expiration. You can argue that the consular officials don't follow the state department's instructions, but the instructions themselves are clear.

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.

Once again, this is not a spousal visa case.

It's a fiancé(e) visa case. The U.S. Embassy Manila decides whether it's a bona fide relationship, not the USCIS.

That's just not correct and is in direct contrast with the seventh paragraph of the state department cable from 2004, see http://travel.state.gov/visa/laws/telegrams/telegrams_1388.html

The USCIS service center did not send the petitioner an RFE because, at that level of the K-1 process, it's not required to prove a bona fide relationship. The Embassy determines whether a relationship is bona fide. The USCIS looks at whether the couple met face-to-face within two years prior to filing the petition.

Did the Embassy issue her Form MNL-IV-22 (221g)? If so, what exactly did it say?

Maybe her visa was not denied. Maybe it was refused. If it was refused, then she can submit more evidence.

The bona fide's of the relationship are a matter that only the USCIS gets to decide. The trick is to include a lot of evidence, including any derogatory information, with the initial I-129 application. The embassy can only deny a visa for lack of evidence of a bona fide marriage and send the file back to the USCIS when it uncovers new information, not previously considered by the USCIS. So make sure there is no new information to uncover and USCIS has all possible derogatory info to begin with and still approves the case.

Well with respect to whether the child should be listed on the forms, make sure you read the definition of a child as per INA 101. It may well be that he does not have any children even after the child is born, using the INA definition, that is.

I have a question.

I've read here that one needs to send the ''long'' form of birth certificate.

As opposed to what? Is there a shorter form which they don't accept? Or the ''short'' or ''long'' form is just country specific?

We just received our NOA2, but I want to be sure that I will prepare and send the correct documents.

Some countries (e.g. UK) have both a short and long form birth certificate. For greece this does not apply, η ληξιαρχική πράξη γεννήσεως is sufficient and recommended. Πιστοποιητικό γέννησης is normally also accepted, but the first option is preferred.

IMHO, you are too stressed over the process - you have a lawyer, take it easy, sit back and relax.

Nope, if you'll do an annullment than the orginal marriage never existed. Then you will need to initate a divorce if you wants to stay and ROC. But, I thought you stated that you had no one in the country to assist you.

The answer to these questions is not that simple. There are conflicting BIA decisions on this topic. Matter of Samedi supports what you say, but the more recent matter of Castillo-Sedano may not. A consultation with an attorney may be in order.

Sure you can write a letter and withdraw your adjustment of status application. The immigrant petition though can only be withdrawn by your spouse.

Why did you wait for a whole year before filing?

-diavatirio.com

Hi..I gotta critical question which am not expecting to get good answers..Me and my wife s been married for a year..We hired a lawyer and decided to file for a green card about a month ago..The biometics is scheduled for next saturday but my wife filed for the annulment by being under the impression of her ex.. ...I wont be able to make it to the biometics cuz she is hiding the biometics letter from me..Is there anyway that my petition still can be withdrawn just like its never been sent??

Yours,