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Ely
Ely, Counselor at Law
Category: Immigration Law
Satisfied Customers: 102601
Experience:  Private practice in several areas, including immigration
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My fiancee had a K-1 interview last February and was

Customer Question

Hello, my fiancee had a K-1 interview last February and was denied for a K-1 VISA. When I contacted the embassy via email, I received the following response:
**Thank you for your inquiry regarding the visa application of Ms. XXXX, Azizas.
A review of our records indicates that Ms. XXXX was interviewed February 23, 2016, and the visa was not issued. Evidence provided in support of the petition, and an interview with Ms. XXXX, led the interviewing officer to determine the claimed relationship between you and Ms. XXXX was not genuine and that they did not have intent to marry in the United States. The interviewing officer’s decision was reviewed by the Consular Chief, who concurred with the interviewing officer’s decision to not issue the visa, concluding that the adjudication was conducted in accordance with U.S. Immigration law. As such, the case is in the process to return to the U.S. Citizenship and Immigration Services (USCIS) for possible revocation, and no additional evidence will be accepted in support of the visa application at this time. Should you wish to continue to pursue a K1 visa for Ms. XXXX, you will need to follow-up with USCIS.
Per USCIS, once USCIS receives a returned I-129F for K-1 classification from the Department of State (DOS) and the petition has expired in accordance with 8 CFR214.2(k)(5), USCIS will allow the petition to remain expired and will not reaffirm or reopen the petition. Please note that this does not preclude you from filing another petition.
Last week, I traveled to Cambodia to visit my fiancee and tried to see what I can do. I spent 10 days with my fiancee and took lots of pictures for further proof of our relationships.****
I am confused with the notice I received in the email above and the case status update from DOS "VISA Case Status".
Thanks
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Ely replied 1 year ago.
Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms. I am sorry to hear about this situation. The letter indicates that the US Consulate agent believes that the romantic relationship between you and your fiance is not real. This means that they are denying the fiance visa. The US Consulate is now sending the file back to USCIS with the recommendation to deny and close, which USCIS would likely follow the US Consulate's recommendation. In short, I am sorry to say that the fiance visa has been denied at this point, even with the photos that you have provided. Please note: If I tell you simply what you wish to hear, this would be unfair to you. I need to be honest with you and sometimes this means providing information that is not optimal. Negative ratings are reserved for experts who are rude or for erroneous information. Please rate me on the quality of my information; do not punish me for my honesty. I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.
Customer: replied 1 year ago.
OK. In anticipating of that decision, I am in the processing of obtaining a marriage certificate from that country and will file a I-130. Is this the right and only course of action I have now? This is the reason why I traveled to Cambodia last week.
Expert:  Ely replied 1 year ago.
Possibly. Someone in your situation has two options, essentially. They can attempt to apply again with the fiance visa (this time, showing more evidence of a relationship such as affidavits of third parties for example), or, marry and attempt this way. For marriage, the same doctrines apply (i.e. bona fide relationship) and the authorities will look for: combined joint accounts, photos, marriage ceremonies, affidavits from third parties, etc. For a step by step, see HERE. While I cannot tell you what to do, if you were going to be married anyhow, it may make sense to try to the I-130 route, since one would have to do the same thing anyhow when applying for her greencard had she come on a fiance visa. Plus with a marriage, there is more of a presumption of a relationship being genuine. Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 1 year ago.
Yes, my thought exactly about the Green Card requirements. Do I have to wait for the official USCIS letter or can I proceed with the I-130?
Expert:  Ely replied 1 year ago.
I would wait for USCIS to officially close the file. This is to avoid USCIS making a mistake and confusing the two files and possibly filing any documents sent for the I-130 into the I-129F matter. USCIS mixes up and loses documents all the time. So to avoid an administrative misunderstanding, it is best to wait for one matter to officially close before petitioning for the other. Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 1 year ago.
I still do not understand the justifications the CO has to come to the decision of us not being a in a "genuine" relationship. Per the USCIS requirements, all documents were satisfied. We had pictures of us together. I stayed at her village with no air conditioning unit. If this was legit, I would not be spending my money/time and put myself through this. I know this is more venting, but it's an injustice!!
Expert:  Ely replied 1 year ago.
Hello, The consular agent has the final authority to make such a decision (along with USCIS). I agree with you that they may be heavy-handed. Unfortunately since a visa is not a "right" but a privilege, the government does not HAVE to grant it if it feels the relationship is not bona fide. You may of course attempt certain appellate actions, or even a lawsuit. But most find relief by simply providing more evidence of bona fide relationship. Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 1 year ago.
To save time, I was hoping to have the opportunity to continue with the K-1 VISA by providing more evidences such as pictures, more oversea visits, etc. But you had indicated that the K-1 VISA has been denied and closed. I do appreciate the honest answer. I anticipated that also, which is why I traveled there last week to obtain a marriage certificate. I had an appt with the Embassy and the Embassy notarized documents for marriage requirements.
Expert:  Ely replied 1 year ago.
Hold on. Some consulates - a few - will consider more evidence without the need to refile anew. Before writing the I-129F off completely, one may wish to contact the consulate and ask if indeed new evidence would be considered without having to refile the I-129F all over again.. However, the letter seems to make it pretty clear that it would not (still worth a try). Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 1 year ago.
This was the reason why I contacted this forum. Based on the email response from the Consulate and the white 221g form my fiancee received, it gave me mixed conclusions. In researching around, I thought I would have to wait for the USCIS to receive the package back from the Consulate and they would make a determination what the final decision would be.
Expert:  Ely replied 1 year ago.
In all honesty, it sounds like the matter is pretty much closed on the I-129F as it was filed now. At this point, someone in your situation can appeal the decision with USCIS, file I-129F anew, or, marry and file I-130. I would strongly consider marriage and filing the I-130. Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 1 year ago.
The VISA refusal caught by surprise along with the 221g form. As I look further into this, it seems VISA refusals have increased significantly? From your experience, why so? Also, what is the percentage of getting the case overturn to my side after it has been labeled in an unfavorable category? I am open to both providing more evidences for I-129F or marriage via I-130.
Expert:  Ely replied 1 year ago.
Hello and thank you for your follow up. There has not been a significant increase in visa denials from Cambodia to my knowledge. If there has been, then it may be due to a change in office staff at the Embassy in Cambodia. After all, the matter is highly subjective. Much is up to the consular agent reviewing the matter. Percent of chance to overturn the I-129F is very small. One may be better off simply marrying and filing for the I-130. Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Expert:  Ely replied 1 year ago.
Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question because you never responded or replied positively. I am simply touching base. Let me know. Thanks!
Customer: replied 1 year ago.
Hello,
I want to file again but under husband and wife via I-130. How do I close or withdraw my I-129F? Is this the process you recommend I should take? As of right now, the case still says "undergoing further administrative processing..."
Expert:  Ely replied 1 year ago.
You can write a letter to USCIS and NVC, cc'ing it to the consulate, withdrawing the I-129. There is no special forms needed.Then one can file for the I-130 after marriage. I would strongly consider marriage and filing the I-130. Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 1 year ago.
Thank you for quick response. Do I wait until I received a notice back from the USCIS/NVC or Embassy first before I proceed with I-130? I really do no want to make the problem worse so I want to be very sure and careful with the steps take and withdrawal letter.
Expert:  Ely replied 1 year ago.
"Do I wait until I received a notice back from the USCIS/NVC or Embassy first before I proceed with I-130" Yes. If none comes in a few weeks, one can call/contact any of the above to check on the status. REGARDLESS, it is recommended to do any of the steps above with an attorney. Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Expert:  Ely replied 1 year ago.
Hello,
Please let me know if you need anything else. If not, please do not forget to rate positively. Thanks!