Class Action Lawsuit Filed Against State Department For Arbitrarily Returning K1 Fiance Visa at Consular Processing
A class action lawsuit has been filed in Oregon charging the U.S. State Department and Department of Homeland Security with unlawfully and arbitrarily returning U.S. petitioner’s Fiance(e) K1 visa at the U.S. Consulate. Plaintiffs are deprived of due process of law and petition approval denied withheld contrary to constitutional right contrary to procedure required by law.
Thousands of families across the country and around the world have been separated due to a colossal sparring match between the defendant agencies, and because of internal dissent within each agency.
Read more here.
Visa Denial: 214(b), 221(g), or Administrative Processing – a Primer
Visa Refusal under INA 214(b), 221g, and Administrative Processing
The US Embassy refuse visa applications for a myriad of reasons. US consular officers review the documents, investigate the individual’s background, and conduct a personal interview to evaluate whether a visa applicant is eligible. When an immigrant visa case is not approved the applicant is issued a 221(g) or “blue sheet” indicating the evidence submitted was insufficient. When a non-immigrant visa is not approved, it’s basically due to the requirements of section 214b, wherein the applicant did not have evidence of strong ties to a residence abroad to compel the applicant to return home after a short, temporary visit. Administrative processing is sometimes equivalent to a 221(g) refusal as the consular officer was unable to approve the case based on the evidence submitted, or a discrepancy was discovered requiring additional time to investigate. Administrative processing cases may languish in visa purgatory for a long time.
214(b)
Section 214(b) is part of the Immigration and Nationality Act (INA). Most visa applicants apply for a tourist visa or a student visa in this category. To qualify for a visitor or student visa, a prospective visitor or student applicant must meaningful evidence of funding, valid purpose of the trip, and strong ties in a residence abroad to compel the applicant to return to after the visit.
The most frequent basis for such a refusal concerns the requirement that the prospective visitor or student possess a residence abroad he/she has no intention of abandoning. Applicants prove the existence of such residence by demonstrating that they have ties abroad that would compel them to leave the U.S. at the end of the temporary stay. Evidence of “strong ties” may be illustrated by consistent and steady history of employment, sufficient collateral or property ownership to cover travel expenses, and a succinct and sincere reason for the visit. These are compelling factors the consular officered consider when evaluating an applicant’s eligibility for the visa. The brief interview with the applicant is also valuable in the consular officer’s decision to approve or deny the visa.
221(g)
U.S. consulates abroad have been known to deny visas based upon INA Section 221(g) even after the United States Citizenship and Immigration Services (USCIS) has approved a petition for the visa application.
In a 221(g) case, the consular officers determine that the requirements for a petition-based visa are not met by an applicant. They can refuse to issue the visa under Section 221(g). When they do so, they also request that the USCIS revoke the petition that was approved earlier.
Even though the USCIS has the primary authority to determine whether or not a person meets the requirements for a particular, petition-based visa classification, the consulate may reach a different conclusion and request that the USCIS reconsider its original approval of a petition. What can happen is that new, negative information can come to light at the time of the interview and the interviewing consular officer may conclude that the visa applicant either does not appear to meet the requirements of a fiancé/e. Essentially the fiance(e) did not convince the consular officer that the relationship is bona fide and possibly a sham marriage entered into to circumvent US Immigration law. Cases issued 221(g) are equivalent to a denial, however, some languish in visa purgatory similar to administrative processing.
Administrative Processing
In cases pending in Administrative Processing (AP) the consular officer may need more time to review the case before determining whether the applicant is eligible for the visa. In immigrant visa cases such as the fiance(e) visa, the consular officer may conclude at the interview that there’s not enough convincing evidence to deny the case nor approve it, there may be some red flag issue, or a discrepancy in the case to warrant a secondary review. Cases in AP may take months to conclude, however, in this writer’s experience, providing additional compelling evidence of the bona fides of the applicant’s relationship to the American petition may assist the consular officer in making a definitive decision in the case.
AP is a state of flux that leaves applicants frustrated and confused as there’s no definitive guidelines as to what the immigration issues are and whether the applicants can do anything to compel the consular officer to issue the visa. It is within the discretion of the consular officer to hold the case and investigate it further, thereby leaving the applicant with neither an approval nor denial.
Whether the case is issued a 214(b), 221(g) or placed in administrative processing, a competent immigration attorney should be able to review the case and provide the best course of action based on the applicant’s unique sets of facts. Consular processing attorneys are in a highly advantageous position to assist since they are able to inquire directly with the consulate and embassy where the applicant’s case was denied.
Submitting False Documents for a Visa
In order to enter or remain in the United States and be eligible for various immigration-related benefits, non-citizens (aliens) must comply with a number of document requirements under the Immigration and Nationality Act (INA).
Attempts to circumvent these requirements are generally prohibited. Under the INA, an alien who uses, acquires, or produces fraudulent documents for immigration-related purposes may be subjected to civil penalties and denied certain immigration benefits.
Additionally, certain fraudulent actions may carry criminal penalties under both the INA or the United States Criminal Code.
In general, INA § 274C prohibits the fraudulent production, use, or possession of documents in order to either (1) acquire benefits under the INA or (2) satisfy an INA requirement.
Specifically, INA § 274C makes it unlawful for any person or entity (including non-aliens) to
- knowingly forge, counterfeit, alter, or falsely make6 any document for the purpose of satisfying an INA requirement or obtaining a benefit under the INA;
- use, attempt to use, possess, obtain, accept, receive, or provide any forged, counterfeit, altered, or falsely made document for the purpose of satisfying an INA requirement or obtaining a benefit under the INA;
- use, attempt to use, provide, or attempt to provide any document lawfully issued to or with respect to a person other than the possessor for the purpose of satisfying an INA requirement or obtaining a benefit under the INA;
- accept, receive or provide any document lawfully issued to or with respect to a person other than the possessor for the purpose of complying with INA § 274A(b) (relating to alien employment verification) or obtaining a benefit under the INA;
- prepare, file, or assist another in preparing or filing, any application for benefits under the INA, or any document required under the INA, or any document submitted in connection with such application or document, with knowledge or in reckless disregard of the fact that such application or document was falsely made or, in whole or in part, does not relate to the person on whose behalf it was or is being submitted; or present before boarding a common carrier for the purpose of coming to the United States a document which relates to the alien’s eligibility to enter the United States, and subsequently fail to present such document to an immigration officer upon arrival at a United States port of entry.
Persons or entities found to have violated INA § 274C may be ordered to cease and desist engaging in the unlawful activity and assessed a civil money penalty. In the case of first-time offenders, this penalty is between $275 and $2,200 for each fraudulent document or proscribed activity (and between $250 and $2,000 for each violation prior to September 1999).
For subsequent offenses, the civil penalty is between $2,200 and $5,500 (and between $2,000 and $5,000 for each violation prior to September 1999).
Visa Denials 214(b) and 221(g)
US Visa Denied under INA Section 214(b)
Section 214(b) is part of the Immigration and Nationality Act (INA). It states:
Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status…
To qualify for a non-immigrant Tourist Visa or Student Visa, an applicant must meet certain requirements, particularly that the prospective visitor or student possess a residence abroad he/she has no intention of abandoning. Applicants prove the existence of such residence by demonstrating that they have ties abroad that would compel them to leave the U.S. at the end of the temporary stay. The law places this burden of proof on the applicant, that’s YOU.
Most cases are decided after a brief interview and review of whatever evidence of ties an applicant presents, and consulate officers only spend a minimal amount of time reviewing the file before the interview, and in some instances, none at all.
What constitutes “strong ties”
Strong ties differ from country to country, city to city, individual to individual. Some examples of ties can be a job, a house, a family, a bank account. “Ties” are the various aspects of your life that bind you to your country of residence: your possessions, employment, social and family relationships.
As each person’s situation is different, consular officers look at each application individually and consider professional, social, cultural and other factors. In cases of younger applicants who may not have had an opportunity to form many ties, consular officers may look at the applicants specific intentions, family situations, and long-range plans and prospects within his or her country of residence.
Visa denial under Section 214(b)
Applicants refused visas under section 214(b) may reapply for a visa. When they do, they will have to show further evidence of their ties or how their circumstances have changed since the time of the original application. It may help to answer the following questions before reapplying: (1) Did I explain my situation accurately? (2) Did the consular officer overlook something? (3) Is there any additional information I can present to establish my residence and strong ties abroad?
Visa fee refund
The visa processing fee is nonrefundable regardless of whether a visa is issued. You are not barred from reapplying as often as you like, just be aware that the application fee applies each time and there’s no guarantee that it will be approved.
US Visa Denied under Section 221(g)
221(g) is a section of the Immigration and Nationality Act and it simply means the consular officer is not satisfied with the quality or quantity of the documents you have submitted to prove your relationship to the US citizen petitioner. The officer might consider your evidence to be lacking in substance or honesty to prove that you have a bona fide relationship. This may happen at the interview where the officer discovers an issue or red flag that the applicant was unable to satisfactorily overcome. Cases issued 221(g) or blue sheet have a limited amount of time to submit additional evidence before the case is sent to USCIS with the recommendation for revocation of the I-129F approval.
In some instances, we will be able to prove up your case to the consular officer and ultimately get the visa. This will depend on the facts of your case.
If you were given a 221(g) denial with this verbiage: “Your petition has been returned to the USCIS Service Center for review and possible revocation,” then your case may no longer be at the consulate and possibly on its way back to USCIS for revocation.
The consulates are not supposed to deny a case based on evidence that USCIS considered when it approved the I-129F petition, as the consulate is not empowered to deny or revoke the approved I-129F. However, they may recommend to USCIS that the evidence submited and the personal interview illustrated strong discrepancy to indicate a possible sham marriage or fraud entered into to circumvent US Immigration Law. If USCIS is convinced then it will revoke the fiance petition I-129F, otherwise it might return it to the consulate for a second interview. Please note that USCIS will not return the case to the consulate without compelling evidence from the American petitioner requesting this reconsideration.
Fiancee Visa Denial Under 221(g)
Your fiancee, spouse or family member in the US, must sponsor or petition for you. He or she then files a the appropriate form with the US Citizenship & Immigration Service (USCIS). After USCIS approves the petition, they send it to an office in the US called the National Visa Center (NVC).
The NVC will send your fiancee, spouse or family member a package of forms to complete, including an affidavit of support requiring your family member to demonstrate that he or she can afford to sponsor you. It may also include a visa application, DS-230(1).
Once this has been done, you will be required to interview at the US Consulate in Bangkok. There is where most cases are denied or encounter arbitrary rulings. The consulate denies many visas under a provision called INA 221(g)(2).
INA 221(g) states that “No visa or other documentation shall be issued to an alien if (1) it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law, (2) the application fails to comply with the provisions of this Act, or the regulations issued thereunder, or (3) the consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such documentation under section 212, or any other provision of the law. Provided that a visa or other documentation may be issued to an alien who is within the purview of section 212(a)(4), if such alien is otherwise entitled to receive a visa or other documentation, upon receipt of notice by the consular officer from the Attorney General of the giving of a bond or undertaking providing indemnity as in the case of aliens admitted under section 213: Provided further, that a visa may be issued to an alien defined in section 101(a)(15)(B) or (F), if such alien is otherwise entitled to receive a visa, upon receipt of a notice by the consular officer from the Attorney General of the giving of a bond with sufficient surety in such sum and containing such conditions as the consular officer shall prescribe, to insure that at the expiration of the time for which such alien has been admitted by the Attorney General, as provided in section 214(a), or upon failure to maintain the status under which he was admitted, or to maintain any status subsequently acquired under section 248 or the Act, such alien will depart from the United States.”
221(g) Visa Denials
221(g) is a section of the Immigration and Nationality Act and it simply means the consular officer is not satisfied with the quality or quantity of the documents you have submitted to prove your relationship. The officer might consider your evidence to be lacking in substance or honesty to prove that you have a bona fide relationship with the person that wants to sponsor you.
221(g) Visa Denials Final
In some instances, we will be able to prove up your case to the consular officer and ultimately get the visa. This will depend on the facts of your case.
If you were given a “blue sheet” then quite simply it means a denial with the opportunity to submit more evidence. Once you provide the additional evidence requested, your case may be approved.
If you were given a 221(g) denial that saids: “Your petition has been returned to the USCIS Service Center for review and possible revocation,” then your case may no longer be at the Consulate. Your loved ones in the US will have to prove up your relationship by providing more evidence of the bona fideness in your case.
Visa Denied, Now What
Gather all your evidence and speak to a competent and qualified immigration lawyer.
If your loved ones convinced USCIS Service Centerthat your relationship is genuine, USCIS will approve your petition again and will go through NVC the same way as before. Eventually, you will get to interview again at the US Consulate in Bangkok.
The consulates are not supposed to deny a case based on evidence that USCIS considered when it approved your petition. When the consulate returned your petition to USCIS, it explained to USCIS the reasons. If USCIS is not persuaded by the consulat’s reasons, it can re-approve your petition and the consulate is not allowed to send it back again for the same reason. However, it is very important that you present a good case to the USCIS Service Center to proved your relatioship. If you and your loved one do not put on a good case, teh consulate’s denial will be final.
You can present your case to the USCIS Service Center early in the form of a new petition whic includes answers to the consulat’s denial. Other times, you must wait. This is why you consult with a competent immigration lawyer who can analyse your case and tell you what is the best way to proceed.
How We Can Help!
We have been assisting clients in Bangkok for over two years on visa denials cases. There are many reasons the consulates may deny your case and with a qualified attorney on your side, you may be able to persuade the consular officer the first time around that you have a genuine relationship with your loved one.
We write motions arguing your facts under the INA and assemble your evidence in the best way to prove your case to show the legal or logical faults in the consular officer’s denial.
Contact us in Bangkok!
Bangkok, Thailand +66 (0)8 4724 3192
Skype: FrontierLegal
Email: Info@Frontierlegal.com
Attorney Services
We welcome inquiries from attorneys with clients requesting US Embassy Consular Processing Services or Department of Homeland Security in Bangkok . In the past, we have referred Law Firms, provided legal inquiries at the US Embassy in Bangkok and in Ho Chi Minh City, and associated with International Law Firms on Business and Mergers & Acquisitions Law. Our versatile and technologically modern Law Offices in Bangkok and Ho Chi Minh City are well equipped with the latest telecommunication equipment required to service for our international clients.
We provide direct US immigration services at the US Embassy and with DHS in Bangkok, ranging from Administrative Processing inquiries to complex 221(g) visa denials and 214b refusals. Delays in processing green cards or issuing I-90, or to Abandon Residence. CTR & Associates Ltd. have the resources to provide expeditious, reliable, and professional legal services for attorneys requiring an “on the ground” lawyer who can meet and interview the applicants for their Fiance Visas, Student Visas, IR1, and any US Citizenship or Consular Reports. Here’s a sample list of the services we provide.
- Certified translation from Thai to English
- Certified translation from Vietnamese to English
- Vietnamese Speaking American Attorney to Speak to Clients and Meet them for Interview Preparation
- Thai and English Speaking Staff
- Supported by L & N Law Firm in Ho Chi Minh City, Vietnam
- 221(g) Visa Denial Review
- I-601 Inadmissibility Waiver for Extreme Hardship
- Consultations regarding visa eligibility at the consulate
- Procurement of support documents in Thai or Vietnamese
- Filing of applications with US Consulates worldwide and with USCIS in the United States
- Scheduling visa appointments and requesting expedited processing
- Preparation and guidance for interviews and travel
- Processing of requests for Waiver of Inadmissibility
- Assistance with US citizenship and passport applications
- Liaison with local posts to ensure compliance with processes, procedures and documentary requirements
- Academic Student Visas (F-1)
- Tourist Visas
- IMBRA Waivers for Multiple Filings of Fiance(e) Petition
