This article focuses on the return of approved family-based IV petitions by consulates and how to represent clients in DHS revocation proceedings. 

 

After a family-based immigrant visa petition has been approved by USCIS, some clients might think that the process is nearly complete. They often have a rude awakening when their loved ones interview for visas at a US Consulate.  This article will suggest some ways to avoid having the petition returned by the consulate. It will also point out a misrepresentation trap for the unwary that exists in the Foreign Affairs Manual (FAM).

 

First, to illustrate my points, here is a hypothetical fact situation.

Example:  Petitioner sponsors a K-1 beneficiary. K-1 petition is approved by a USCIS Service Center in the US. The Service Center forwards the case to the National Visa Center.  The case is assigned a case number and sent to the appropriate consulate by the NVC.  The beneficiary interviews at a US Consulate and her case is not approved at the time of the interview. Rather, the interviewing officer first refuses the visa application under INA 221(g), and requests more information about the relationship.

 

After the petitioner and beneficiary provide the information, the consular officer decides that the petition should be returned to USCIS for review with the recommendation that it be revoked because it’s the officer’s view that a reasonable person would believe the relationship exists solely or primarily to convey an immigration benefit. The case then is sent from the interviewing officer to a supervisor at the consulate who reviews the officer’s recommendation. This process can sometimes take months or years. The process is sometimes called “AR” or administrative review 

 

These are the facts we’re using for the article. Now here is the law.

 

I. The Burden a Consular Officer Must Meet to Recommend Revocation of an Approved Family Petition

 

There is a heavy burden a consular officer must meet before he or she can recommend an DHS-approved petition be revoked. In employment-based IV cases, a consular officer has the authority to invalidate labor certifications, if so instructed by the Department of State after obtaining an advisory opinion from the Bureau of Consular Affairs.

 

In family cases though, the power of consulates is more limited. DHS has the sole statutory authority to approve or revoke a family-based immigrant visa petition. And a DHS approval is a prima facie presentation of eligibility under the Act. 

 

A good restatement of the standards governing petition returns by consulate is found in a February 2004 cable R 251642Z FEB 04, excerpted below, sent to all consulates.

 

 … “6. In adjudicating visa cases involving petitions, posts should bear in mind three important factors: A. the consular officer's role in the petition process is to determine if there is substantial evidence relevant to petition validity not previously considered by DHS, and not to merely readjudicate the petition; B. the memo supporting the petition return must clearly show the factual and concrete reasons for recommending revocation (observations made by the consular officer cannot be conclusive, speculative, equivocal or irrelevant) and; C. consular officers must provide to the applicant in writing as full an explanation as possible of the legal and factual basis for the visa denial and petition return. Post must maintain a copy of the returned petition, other evidence relevant to the case, and a copy of the written notification of the denial.

 

No readjudication of petitions

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. …”

 

What does that language mean? It means an approved petition is prima facie evidence of eligibility for an immigrant visa, unless a consular officer finds substantial evidence of ineligibility.  More importantly,   this evidence must have been unknown and unavailable to DHS at the time it approved the petition. That is the nearly the whole game for your client right there, in a few words.

PRACTICE TIP #1 - What the words  generally unavailable to DHS at the time of petition approval should mean to skilled immigration practitioners, is that they should inform DHS in advance, at the time of filing the petition, of any potential red flags a consular officer might spot in the case. If DHS approves the petition anyway, a consulate is not supposed to deny a petition for that same reason.

 

What are some typical red flags that can cause a Consular Officer to suspect the merits of a relationship?

 

On the petitioner’s side, here is a brief and, by no means, complete list of reasons I have seen used to justify the return of family-based IV petitions and K petitions to DHS.

 

1.      A very brief courtship followed by a plunge into matrimony;

2.      A marriage ceremony arranged only a short time after petitioner arrives in the beneficiary’s country and they meet for the first time; 

3.      No common language; 

4.      Petitioner resides with family members of the beneficiary in the US;

5.      Petitioner is employed by or has a business relationship with a relative of beneficiary;

6.      Petitioner submits phone records that show he uses a residential phone number that is listed in the name of another person.

7.      US divorce followed very quickly by an engagement to foreign beneficiary is often a red flag for consular officers.

8.      There is little or no documentary evidence of the relationship prior to the actual engagement.

9.      Long gaps of time between the petitioner & beneficiary being together in person.

10.  Failure to disclose previous marriages;

11.  Failure to disclose previous petitions filed on behalf of other beneficiaries.

 

I’ve only addressed the petitioner’s side of the relationship. There are other red flags that can afflict the beneficiary. But the point to remember is that consulates are not supposed to deny family-IV applications for reasons that were generally available to DHS at the time of approval, so tell DHS in advance of any potential red flags when you file the petition. That doesn’t guarantee consular officers won’t find other reasons unknown to DHS, but at least you will have served your client well by disarming the obvious landmines in his or her path. And you will make the consular officers work by forcing them to examine each and every fact asserted in the petition to see if DHS had knowledge of the information used to justify the recommendation for revocation.

 

II: K-1 Conundrum (Double or Nothing-Revocations)

 

K-1 and K-3 visas are odd fish. They are non-immigrant visas. Yet they e processed at consulates as IV’s . Not only that, K-1’s and K-3’s have definite life-spans. A K-1 for instance expires after four months. It normally takes more than four months from the time of DHS approval for a beneficiary to be interviewed at the consulate. Thus, by the time the beneficiary in our fact situation shows up at the window, the petition approval is no longer valid.

 

41.81 N6.2 Validity of a K-1 Petition (TL:VISA-581; 09-03-2003)

An approved K-1 visa petition is valid for a period of four months from the date of Department of Homeland Security (DHS) action and may be revalidated by the consular officer any number of times for additional periods of four months from the date of revalidation, provided the officer concludes that the petitioner and the beneficiary remain legally free to marry and continue to intend to marry each other within 90 days after the beneficiary's admission into the United States. However, the longer the period of time since the filing of the petition, the more the consular officer must be concerned about the intentions of the couple, particularly the intentions of the petitioner in the United States. If the officer is not convinced that the U.S. citizen petitioner continues to intend to marry the beneficiary, the petition should be returned to the approving office of DHS with an explanatory memorandum. [See 9 FAM 41.81 PN7 for revalidation procedure.)

 

So in our fact situation above, let us assume the approval of her sponsor’s petition has lapsed at the time of the interview. And it will not be revalidated unless and until the consular officer is persuaded on the merits of her visa application.

 

Reading the above passage, the FAM seems to place a built-in presumption against the intentions of the couple if the processing time for the K-1 petition has been delayed, even for reasons beyond their control. That presumption grows more persuasive, the longer the petition is delayed. 9 FAM 41.81 N6.2 also mandates that if the consular officer does not believe the couple intentions, at the interview, he or she must return the already expired petition approval with an explanation to DHS.

 

What is the point of returning an expired petition to a DHS Service Center? It’s hard to say. Perhaps it’s simply an information exchange between the two agencies or perhaps it’s professional courtesy. But this is a part of the process that poses great danger for petitioners.   This is the place in the process where a 212(a)(6)(C)(i)[1]  Misrepresentation trap has been set by the FAM

 

Our beneficiary at this point is in danger of having a finding of misrepresentation entered into her record, even if neither she nor the petitioner have actually misrepresented anything.

 

40.63 N10 Miscellaneous

40.63 N10.1 Misrepresentation in Family Relationship Petitions (TL:VISA-313; 08-27-2001)

Pursuant to 8 CFR 205, invalidation of a labor certification for fraud in accordance with the instructions of INS or the Department of State automatically revokes an employment-based immigrant visa petition. On the other hand, INS retains exclusive authority to disapprove or revoke family-relationship immigrant visa 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, the consular officer must return the petition to the INS office having jurisdiction over the petitioner's place of residence [See 22 CFR 42.43.] If the petition is revoked, the materiality of the misrepresentation is established.

 

Note the last words of 9 FAM 40.63.N10: “If the petition is revoked, the materiality of the misrepresentation is established.

 

This will slip by a lot of people. But a beneficiary who fails to satisfy the consular officer’s interpretation of the “Reasonable Person” as set out in  9 FAM 42.43 N2.2(3) according to this part of the FAM may have made a misrepresentation with respect to entitlement of status .

 

This is a very aggressive position DOS has taken on Misrepresentation. Why? Go back to the February 2004 cable I cited earlier in the article. It is not supposed to be easy for consular officers to return approved family immigrant visa petitions. There is a very heavy burden placed on consular officers who wish to recommend revocation to DHS. It is apparently the Department of State’s position that no officer will return an approved petition without the required specific evidence of ineligibility of which DHS was not aware.

 

So when the consulate returns our petitioner’s approved K-1 petition to USCIS, it will put a 212(a)(6)(c)(1) marker, called a “P6C1” marker, or  a “quasi-refusal” in the beneficiary’s  record. If DHS decides at a later date to revoke that petition, a hard 212(a)6(c)(i) finding can kick in.

Lawyers – Be Careful Here!

Now in many cases where a K-1 has been delayed, refused or denied at a US Consulate,  lawyers have advised clients to simply get married and file and I-130.  That is not good advice, unless the attorney also advises the petitioner to pay close attention to the K-1 that has been sent back to the Service Center from the consulate.

 

If a Service Center begins a revocation proceeding for that K-1 petition, a petitioner’s failure to respond will mean that DHS will revoke the approval of the petition. When that happens, the 212(a)(6)(c)(i) that is pending in our beneficiary  file, will become hard finding of Misrepresentation, under 9 FAM 40.63 N10.1 (above).

 

A Rude Surprise at the Second Consular Interview

Our love birds have followed their lawyer’s advice and forgotten about the K-1 petition. A NOID (Notice of Intent to Deny) letter comes in the mail and petitioner calls his lawyer. The lawyer says, 

 

“Don’t worry about it. She’s your wife now. The K-1 petition is irrelevant.”

 

The lovebirds have taken the plunge and married. The petitioner has made another costly visit to the foreign country; bought another round trip airplane ticket, and maybe he has even sprung for a costly wedding ceremony. 

 

An I-130 Petition for his new bride has been filed. And it is approved by the DHS Service Center. What will happen when his new wife appears at the US Consulate for her next interview?

 

Because the petitioner did not respond to the K-1 revocation notice, the beneficiary has a 212(a)(6)(c)(i) finding on her record. Even if the petition for her is approved, she is permanently barred from entering the US, unless she can obtain a waiver to that ground of inadmissibility.

 

What specific misrepresentation has this couple made? According to the section of the FAM cited above, it could be a generalized misrepresentation with respect to her entitlement to the K-1 status. She failed to satisfy the “Reasonable Person” Standard, and that has been boot-strapped more or less into a finding of Misrepresentation by the consulate.  

 

If that seems counter-intuitive, if it seems strange to enter a finding of Misrepresentation under INA 212(a)(6)(c)(i), when no actual misrepresentations have been made, look at it from the perspective of DOS. There is a heavy burden placed upon consular officers before they can return a petition. They are not allowed to return a petition and recommend revocation for 221(g) reasons. Insufficiency of documentary evidence is not a reason for recommending that a DHS-approved family petition be revoked. Therefore, at least the way consulates views it, somebody must have made a misrepresentation somewhere with respect to the beneficiary’s entitlement to K-1 status.

 

What exactly was the misrepresentation? Nobody seems to know. DOS doesn’t give you a specific answer. The lawyer doesn’t know. And most importantly, the petitioner and beneficiary are clueless. They’re in sort of a Kafkaesque position. They’re accused of misrepresenting something. But nobody tells them exactly what they have misrepresented.  This problem could have easily been avoided if the petitioner had simply responded to the NOID letter and argued the merits even though the couple had married.

PRACTICE TIP #2 -  Respond to everything! Even if it doesn’t make sense, even if it’s no longer relevant, respond to it!

 

Now here is where it gets tricky. DHS probably does not even know about the 212(a)(6)(c)(i) finding that has been entered into the beneficiary’s  record by DOS.

The approval for the K-1 petition has long since expired by the time the consulate has sent it back.

 

In my experience, different USCIS Service Centers handle K-1 revocations in different ways. I have seen Vermont and Nebraska notify the petitioner at once and give him or her 60 days to submit rebuttal evidence. I have seen California and Texas give a petitioner only 30 days to respond.

 

But I have also seen USCIS Service Centers not even use the revocation process for returned K-1 petitions. I have seen I-797 notices mailed to petitioners informing them that the petition was returned from the Consulate and that the approval for the petition has expired. California and Texas Service Centers seem to have at least a quasi-policy of not sending out NOID letters unless the petitioner requests one.

 

What about that Misrepresentation finding that is hanging in our beneficiary’s record? We know that it kicks in upon revocation. So is the petition approval revoked when a Service Center simply notifies a petitioner that the approval has lapsed, without giving her or him a chance to respond?  No. Consular Immigrant Visa Chiefs are supposed to make sure that a revocation has in fact taken place before the 212(a)(6)(c)(i) marker becomes a finding.

 

What if Petitioner simply withdraws the petition after the consulate sends it back?

The regulations are rather unformed on this question. The aggressive stance DOS has taken toward Misrepresentation would lead me to err on the side of caution. If the petitioner has a chance to respond to an NOIR letter, this aggressive position might lead to a 212(a)(6)(c) finding entered on the beneficiary  record.

 

Well, what if the K-1 petition is withdrawn after the interview, but before the supervisory consular officer signs off on it?

 

The FAM uses this language “Upon discovery of a misrepresentation, the consular officer must return the petition to the INS office having jurisdiction over the petitioner's place of residence [See 22 CFR 42.43.] If the petition is revoked, the materiality of the misrepresentation is established.”

 

So I would err on the side of caution there as well.

 

What if the NOID letter is sent to the petitioner, but the Service Center is unable to locate him? There seems to be some discretion granted to IV Chiefs at consulates. Some consulates will consider this a revocation and allow the Misrepresentation finding to kick in.  Others won’t.

 

Now what?

 

So in our fact situation, the beneficiary goes to her second interview. The consular officer is satisfied with the merits of the case. But there is a finding of Misrepresentation in her record. He hands her a 221(g) refusal sheet and an I-601 waiver application.

 

Our lovebirds have to apply to DHS for a 212(i) waiver to the grounds of inadmissibility. 

Here too, there is some discretion at the consulate. Not all Immigrant Visa Chiefs seem to do it this way. Some will take the time, investigate the case and take the view that the grounds of inadmissibility for the K-1 have been overcome with the spousal petition. Most will simply allow the waiver process to take its course.

 

Recommendations

 

A.        Lawyers

            1.         As I noted earlier, lawyers must inform DHS in advance, of any potential red flags which may arise at the consulate interview. That means we must conduct more thorough interviews of our I-130 and K-1 clients.            

            2.         Whenever an NOID or NOIR letter comes in the mail, respond to it!

B.         Department of State

            1.         Consulates should recognize that simply because an officer discovers “ substantial evidence relevant to petition validity not previously considered by DHS”, it does not necessarily follow that the beneficiary or petitioner have willfully misrepresented any material facts. P6C markers should not be automatically entered into a case simply because a petition has been returned with the recommendation that its approval be revoked.

            2.         Failing #1, Petitioners and Beneficiaries need to be advised that the officer believes they have made a willful material misrepresentation of the beneficiary’s eligibility for the visa. They should also be advised of the consequences of 212(a)(6)(c)(i) on the return sheet given to the beneficiary. 

 

C.        DHS/USCIS Service Centers:

            1.         Service Centers need to be aware of the P6C entries that consulates are making and provide every K-1 petitioner an opportunity to rebut the consulate’s findings on the merits.