How can a K-1 misrepresentation denial be overturned?

[AKSinghSingh79 143]

This question has nothing to do with my case (as K and I are filing for a Cr-1 later this year). I'm asking on behalf of a friend who's fiance was recently denied a K-1 visa and issued a 221g for misrepresentation at the consulate.

The CO was convinced that the beneficiary had been lying and that they were actually married. They of course are not married and both legally free to marry but in some ways I can see how the CO may have been tipped off in the wrong direction.

If they are not married and the 221g was wrongly given, can a misrepresentation denial be overturned? I find it hard to believe that a lifetime ban could be issued based on wrong facts. Would a senator's involvement help their case in any way? I believe that they are gathering evidence of being single and legally free to marry.

I know that I've read before of COs wrongly assuming a couple was married. What can be done in a case like this?

Thank you!

[VanessaTony 3,567]

Well, what sort of evidence do they have that they were married? From my reading they don't usually give a lifetime ban without some STRONG proof.

I've seen denials for being married but I can't say I've seen them banned.. normally just told to file CR-1's 'cause they're married, or issued 221gs stating they need to prove they're not.

The problem is if they were to get married now and try and CR-1 USCIS has something on file that says they're already married so they couldn't put the "new" married date on the forms because the "second" marriage doesn't count... They need to find out what evidence they have and correct it. Hopefully that would overturn the K1 denial.

I would get an attorney involved. I don't see them getting the CR-1 denied with a new marriage date until they fix this misrep stuff.

[AKSinghSingh79 143]

Well, what sort of evidence do they have that they were married? From my reading they don't usually give a lifetime ban without some STRONG proof.

I've seen denials for being married but I can't say I've seen them banned.. normally just told to file CR-1's 'cause they're married, or issued 221gs stating they need to prove they're not.

The problem is if they were to get married now and try and CR-1 USCIS has something on file that says they're already married so they couldn't put the "new" married date on the forms because the "second" marriage doesn't count... They need to find out what evidence they have and correct it. Hopefully that would overturn the K1 denial.

I would get an attorney involved. I don't see them getting the CR-1 denied with a new marriage date until they fix this misrep stuff.

The CO saw an online album that was labelled as "wedding". Even with that, it still seems very harsh to issue someone a misrepresentation slip immediately without giving them a chance to prove they are not married. This to me does not constitute strong evidence of being married.

She has involved an attorney since the start of their K-1 and has contacted them already but I've also heard that attorneys cannot do much at this stage. In this case, wouldn't a letter to a senator's office make a difference?

Edited January 10, 2012 by AKSinghSingh79

[VanessaTony 3,567]

The CO saw an online album that was labelled as "wedding". Even with that, it still seems very harsh to issue someone a misrepresentation slip immediately without giving them a chance to prove they are not married. This to me does not constitute strong evidence of being married.

She has involved an attorney since the start of their K-1 and has contacted them already but I've also heard that attorneys cannot do much at this stage. In this case, wouldn't a letter to a senator's office make a difference?

They uploaded an album for friends and family (and this CO) to see that was titled "wedding"... Were there pics of them in wedding gear? Was it a religious ceremony just not the legal part?

[Noah Lot 387]

The CO saw an online album that was labelled as "wedding". Even with that, it still seems very harsh to issue someone a misrepresentation slip immediately without giving them a chance to prove they are not married. This to me does not constitute strong evidence of being married.

She has involved an attorney since the start of their K-1 and has contacted them already but I've also heard that attorneys cannot do much at this stage. In this case, wouldn't a letter to a senator's office make a difference?

Senators/congressmen cannot overrule a VO's decision...senators/congressmen cannot 'vouch' for the veracity of anyone...their 'word' is no more valuable than anyone else's....attorneys will only relieve you (or your friend) of thousands of $$$)...

Either somebody was incredibly dumb by posting pictures labeled 'wedding' or someone is not being truthful....right now, the VOs are probably checking background on your 'friends'to see what's going on.....if they find a marriage license or something else, well.....guess what?

[JimVaPhuong 4,863]

The denial cannot be overturned. A consular officer's decision is not subject to review - not even by a judge or the President. A senator can do nothing about this.

However, a 221g slip only means that the visa was denied. The reason for the denial could (and often is) the consular officer's discretionary decision. Consular officers do not generally issue bans for material misrepresentation. In fact, I'm not even sure they have that authority. They send the petition back to USCIS with a recommendation that the approval of the petition be revoked. That recommendation often comes with a P6C marker accusing the beneficiary of material misrepresentation. That marker usually doesn't become a finding of fact unless USCIS sends a NOID to the petitioner, and the petitioner either doesn't respond or their response is deemed inadequate by USCIS, and the approval of the petition is revoked.

Even if all of the above happens, the material misrepresentation can usually be overcome with an I-601 waiver from the petitioner. From INA 212(i):

The Attorney General may, in the discretion of the Attorney General, waive the application of clause (i) of subsection (a)(6)(C

) in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien or, in the case of a VAWA self-petitioner, the alien demonstrates extreme hardship to the alien or the alien's United States citizen, lawful permanent resident, or qualified alien parent or child.

Has the petitioner in this case received any correspondence from USCIS since the visa was denied?

[StraightShooter 62]

This question has nothing to do with my case (as K and I are filing for a Cr-1 later this year). I'm asking on behalf of a friend who's fiance was recently denied a K-1 visa and issued a 221g for misrepresentation at the consulate.

The CO was convinced that the beneficiary had been lying and that they were actually married. They of course are not married and both legally free to marry but in some ways I can see how the CO may have been tipped off in the wrong direction.

If they are not married and the 221g was wrongly given, can a misrepresentation denial be overturned? I find it hard to believe that a lifetime ban could be issued based on wrong facts. Would a senator's involvement help their case in any way? I believe that they are gathering evidence of being single and legally free to marry.

I know that I've read before of COs wrongly assuming a couple was married. What can be done in a case like this?

Thank you!

In which country did this take place? I know that in some places, a ceremony without a marriage license can still be valid if performed by clergy, etc.

Sooo... if they had a religious but non-licensed ceremony for the sake of family and uploaded the big event online, then planned on doing a civil ceremony later, they could in fact actually be married.

Where did this happen?

[Kathryn41 3,205]

One member has been thread-banned for rude and disruptive behaviour. One post has been removed and second post quoting removed post has also been removed. Response in the quoting post is returned to the thread below: Please remember, the OP has asked for advice not judgments, recriminations and character assasination:

AKSinghSingh79:

I realize they made a mistake but this topic was not started to get a slap on the wrist. I started it to gain helpful insight and possibly get links to topics where this situation has already been discussed so it may help them find a solution.

They will not find a marriage license because one does not exist. They are not married!

Edited January 10, 2012 by Kathryn41

[AKSinghSingh79 143]

They uploaded an album for friends and family (and this CO) to see that was titled "wedding"... Were there pics of them in wedding gear? Was it a religious ceremony just not the legal part?

No it was only an engagement ceremony.

[AKSinghSingh79 143]

In which country did this take place? I know that in some places, a ceremony without a marriage license can still be valid if performed by clergy, etc.

Sooo... if they had a religious but non-licensed ceremony for the sake of family and uploaded the big event online, then planned on doing a civil ceremony later, they could in fact actually be married.

Where did this happen?

In India. No it was not a civil ceremony, only an engagement. In India it is very common for couples to go through an elaborate formal engagement and it can be religious but is not a marriage, only an acknowledgement of an impending marriage.

[bigdog 376]

Sometimes perception is everything as in this case.

[AKSinghSingh79 143]

Sometimes perception is everything as in this case.

Yes I agree but it certainly shouldn't mean "end of the road" for them. The conclusion that the CO came to was false which means they deserve a second chance, whether that means a second interview, filing a new K-1 petition, or getting married and filing for a CR-1.

Edited January 10, 2012 by AKSinghSingh79

[VanessaTony 3,567]

In India. No it was not a civil ceremony, only an engagement. In India it is very common for couples to go through an elaborate formal engagement and it can be religious but is not a marriage, only an acknowledgement of an impending marriage.

I've actually read of this happening to other people which is why a lot of advice about these elaborate ceremonies is to be 100% clear about it being an engagement ceremony.

I'm sorry but they wrote "wedding" on an engagement album, that's pretty damning evidence. I would say they should get married and do the CR-1. I would then try and explain that the "wedding" album only had engagement pics in it because the wedding hadn't taken place yet and when it did it would have been put in with the other images.

Usually though pictures have captions... did the pictures indicate portions of the ceremony "our first kiss as husband and wife" etc?

[TBoneTX 43,126]

Besides the above warnings in regard to photos, every K-1 couple should take care NOT to refer to each other in writing (playfully or romantically) as "husband" or "wife." The "wrong" written materials that get into a CO's hands can lead to a 221g (at best) or to refusal of the visa.

[Stu4Lee 66]

When and how would a CO see an "online album" ?