Folinskyinla

Hi:

No, its not the K-3 visa -- you are doing the immigrant visa route. The K-3 is a "non-immigrant" visa for people who have an I-130 PENDING with BCIS.

bluesails

Thanks again for the reply and for the discussion.

The reason I say it wasn't denied is that when I called the state dept and contacted the embassy they tell me it is still OPEN. Neither one has informed us it is denied. I specifically asked, 'is it denied?' and they said 'no it is still open.'

Further, 42.81(b) says "... The consular officer shall inform the applicant of the provision of law or implementing regulation on which the refusal is based and of any statutory provisions under which administrateve relief is available. ..."

We have requested 5 times by phone and email what the problem is with our petition and the only answer we get is "due to several irregularities, the consular officer decided to forward your visa case to BCIS for review and adjudication." I asked several times - what specifically is the irregularity/inconsistency and each time they just repeat, irregularity/inconsistency. The congressman's office has also asked for specifics on what the irregularity/inconsistence is and so far they have not replied to them at all.

So my bottomline issue is, if it is denied we should be informed why and given opportunity to correct whatever alledged problem there is. If it is not denied, what kind of limbo are we in?

Folinskyinla

Hi:

I think there is a problem of terminology here. The application was denied, but the FILE was still open. It is a semantic difference. When you walked out without a visa, you application counted as a denial. This has been the procedure for decades. Now, you are right, they have to tell you the reason -- but it need not be all that detailed -- a code section and a brief sentence will do it -- 221(g) which is code for "we don't quite believe you" and they said inconsistencies.

I accept the fact that you have a child with him. However, there may very well be something else -- any indications of a prior marriage? That will get a visa petition revoked as unapprovable in the first place.

BTW, if the file has indeed gone back to BCIS, it is time to do a FOIA. DOS records are exempt from FOIA, but BCIS are not. In fact, buried in the FAM somewhere is a warning to ConOffs to be aware of this little fact when sending stuff back to the INS [I say INS that's what it was when I last read the section in question].

Chinga La Migra

Folinskyinla <member@british_expats.com> wrote in message news:<[email protected]>...
    > Originally posted by bluesails
    >
    > > Thanks again for the reply and for the discussion.
    >
    > >
    >
    > > The reason I say it wasn't denied is that when I called the state dept
    > > and contacted the embassy they tell me it is still OPEN. Neither one
    > > has informed us it is denied. I specifically asked, 'is it denied?'
    > > and they said 'no it is still open.'
    >
    > >
    >
    > > Further, 42.81(b) says "... The consular officer shall inform the
    > > applicant of the provision of law or implementing regulation on which
    > > the refusal is based and of any statutory provisions under which
    > > administrateve relief is available. ..."
    >
    > >
    >
    > > We have requested 5 times by phone and email what the problem is with
    > > our petition and the only answer we get is "due to several
    > > irregularities, the consular officer decided to forward your visa case
    > > to BCIS for review and adjudication." I asked several times - what
    > > specifically is the irregularity/inconsistency and each time they just
    > > repeat, irregularity/inconsistency. The congressman's office has also
    > > asked for specifics on what the irregularity/inconsistence is and so
    > > far they have not replied to them at all.
    >
    > >
    >
    > > So my bottomline issue is, if it is denied we should be informed why
    > > and given opportunity to correct whatever alledged problem there is.
    > > If it is not denied, what kind of limbo are we in?
    >
    >
    >
    > Hi:
    >
    >
    >
    > I think there is a problem of terminology here. The application was
    > denied, but the FILE was still open. It is a semantic difference. When
    > you walked out without a visa, you application counted as a denial.
    > This has been the procedure for decades. Now, you are right, they have
    > to tell you the reason -- but it need not be all that detailed -- a code
    > section and a brief sentence will do it -- 221(g) which is code for "we
    > don't quite believe you" and they said inconsistencies.
    >
    >
    >
    > I accept the fact that you have a child with him. However, there
    > may very well be something else -- any indications of a prior
    > marriage? That will get a visa petition revoked as unapprovable in
    > the first place.
    >
    >
    >
    > BTW, if the file has indeed gone back to BCIS, it is time to do a FOIA.
    > DOS records are exempt from FOIA, but BCIS are not. In fact, buried in
    > the FAM somewhere is a warning to ConOffs to be aware of this little
    > fact when sending stuff back to the INS [I say INS that's what it was
    > when I last read the section in question].

I respectfully submit that there is a 3rd option, a "quasi-denial."
If the petition was approved in error by the CSC then the Consulate
lacks jurisdiction to adjudicate the case. Thus, 'till the CSC
re-affirms the approval the Consulate CANNOT either deny nor approve
the visa, based on the petition's alleged mistaken approval.

Also, FAM requires a stamp in the passport denying the visa (and
applicable codified reason), thus, if you have no stamp, you have no
denial.

American immigration law is some of the most primitive in the world,
DOS is virtually un-suable [sic] and thus can act as arbitrarily and
capriciously as they please.

Consider filing a complaint with the OIG of the DOS, the Deputy Chief
of the Mission, and the Ambassador (it will do no good, but at least
you will waste their time whilst they give Saudi jihad students
flight-school visas whilst ****ing over Americans who want to reunify
their families).

Cheers,

jg1012002

Having been thru this personally recently, Folinsky is stating it in very simple terms for us. I also was very frustrated and confused because the VO simply told us the petition expired and they would not revalidate it. However, after 3 weeks of digging, yes it was actually denied based on the expired petition -- and the consulate would not revalidate because they had "doubts" about our relationship.

I guess we presume that the consular officers will ask questions or investigate more thoroughly if they have doubts -- however that is not the case with all embassies. Some embassies just simply return the petition putting the burden on INS and causing us a longer wait. And it is totally within their power and discretion to do just that with no justification to the US citizen. But, as Folinsky stated, it is a denial even though it is not stamped as a denial in the passport. When you for your next interview or next visa application, the denial is listed there with whatever reason the consulate gave. In our case, the consulate put in Petition Expiration and in the comments section, they put in they had doubts because I was 10 years older -- which they never questioned us about.

Hebapotamus42

Since Bluesails mentioned her husband is Libyan and they were using the Cairo consulate as it is the nearest to Libya, couldn't they just go get married somewhere else and file DCF thru that country's consulate? I remember someone mentioning that they did that in Cyprus and it went smoothly.

meauxna

For clarification:

To do DCF, it is NOT a requirement that the couple marry in the country of filing. I've seen this notion bounced around a lot lately and it's just not true. A couple can marry in the US (faster than Europe and elsewhere) and DCF in another country. They can be from Country A + Country B and DCF in Country C. Any combination.

For a K3 visa, the visa must be issued from the country where the marriage took place OR where the petitioner resides (IIRC).

Matthew Udall

This was my thinking too when I read this thread last week. While at the CSC around 3 years ago (I believe), I asked the Director at that time (Donna Coultice) to tell me a little bit about their procedure when they receive a case back from a Consulate for reconsideration or revocation.

She said that often, it is a situation where some new bit of information has come to light somewhere along the line at the Consulate (usually information given by the visa applicant at the interview) that makes the Consulate suspect the Service Center might not have ever approved the underlying petition had that service center also known this particular information. So basically the Consul is sending it back to the Service Center to reevaluate in light of the new information that has come to their attention.

Back then, the CSC’S director said doing this reevaluation work was not a high priority for them, and that in her estimation it usually took the CSC around a year to get that work done. She said that in a majority of cases, they end up deciding they were correct to initially approve the petition, so it gets sent back to the Consulate. She also said that sometimes the same Consul will send it back to them “again� for a “third� look at the case, and when that happens, from what she could tell, the visas in those cases are hardly ever issued.

Good luck.

M.U.

Chinga La Migra

Matthew Udall <member@british_expats.com> wrote in message news:<[email protected]>...
    > Originally posted by Chinga La Migra
    >
    > > If the petition was approved in error by the CSC then the Consulate
    >
    > > lacks jurisdiction to adjudicate the case. Thus, 'till the CSC
    >
    > > re-affirms the approval the Consulate CANNOT either deny nor approve
    >
    > > the visa, based on the petition's alleged mistaken approval.
    >
    > >
    >
    >
    >
    > This was my thinking too when I read this thread last week. While at the
    > CSC around 3 years ago (I believe), I asked the Director at that time
    > (Donna Coultice) to tell me a little bit about their procedure when they
    > receive a case back from a Consulate for reconsideration or revocation.
    >
    >
    >
    > She said that often, it is a situation where some new bit of information
    > has come to light somewhere along the line at the Consulate (usually
    > information given by the visa applicant at the interview) that makes the
    > Consulate suspect the Service Center might not have ever approved the
    > underlying petition had that service center also known this particular
    > information. So basically the Consul is sending it back to the Service
    > Center to reevaluate in light of the new information that has come to
    > their attention.
    >

There are two lawful reasons to send it back: 1. fraud; or 2. new
evidence. However, I know of Consulates that send it back only on the
basis of a perceived error in approval, w/o 1 or 2 supra. It's
unlawful, but who cares as long as the aliens are kep out in limbo,
eh?

    >
    > Back then, the CSC?S director said doing this reevaluation work was not
    > a high priority for them, and that in her estimation it usually took the
    > CSC around a year to get that work done. She said that in a majority of
    > cases, they end up deciding they were correct to initially approve the
    > petition, so it gets sent back to the Consulate. She also said that
    > sometimes the same Consul will send it back to them ?again? for a
    > ?third? look at the case, and when that happens, from what she could
    > tell, the visas in those cases are hardly ever issued.
    >

Logically, a service center would be loathe to admit an error and
re-approve it, but a 3rd-try I have never heard of, but whatever keeps
the aliens out in limbo helps the homeland, eh?

    >
    > Good luck.
    >
    >
    >
    > M.U.