New Lawsuit Could Have Substantial Effect Upon K-1 Visa Processing

New Lawsuit Could Have Substantial Effect Upon K-1 Visa Processing

The following article briefly discusses a recently filed lawsuit brought against agencies of the United States Government tasked with adjudicating US visa petitions and applications.

This writer often discusses issues which might have an impact upon the overall processing procedures of American Family Visas. In the case of Tran v. Napolitano*, a lawsuit that was recently filed in the Oregon Federal District Court, an American Citizen has challenged the current administrative protocols associated with K-1 visa adjudication and denial.

At the time of this publication, there seems to be some institutional confusion within the American Immigration apparatus regarding the exact nature of visa refusals issued by US Consular Posts abroad. For instance, when a visa applicant from a country participating in the Visa Waiver Program is issued a 221(g) refusal in connection with an immigrant family visa, a K-1 fiance visa, or any US visa for that matter; then that refusal could detrimentally affect that individual's ability to subsequently enter the United States on the visa waiver program. Pursuant to relatively recently enacted protocols under the Electronic System for Travel Authorization (ESTA) the United States Customs and Border Protection Service (USCBP) would seem to view so-called visa application "refusals" by the Department of State as "denials" which must be disclosed by those seeking entry to the USA under the visa waiver program. Existence of said "denial" could potentially result in USCBP refusing to grant the alien admission to the USA under the visa waiver program.

In the previously cited Tran* case, an issue similar to the "refusal" vs. "denial" dichotomy was brought to light. In a direct quote from the initial complaint, the plaintiff alleged that the:

State Department, in its denial, stated that, "[i]f USCIS revokes the petition, beneficiary will become ineligible for a visa under section 212(a)(6)(C)(i) of the Act." INA 212(a)(6)(C)(i), 8 U.S.C. 1182(a)(6)(C)(i), is a permanent bar to admissibility for misrepresentation. Pursuant to the Foreign Affairs Manual, 9 FAM 40.63 N10.1, State Department placed a marker, called a "P6C1" marker, or "quasi-refusal" in Ms. Pham's records, and will deem USCIS revocation of the petition as automatically establishing the permanent misrepresentation bar to any future immigration possibility.*

Although this article will not attempt to go into all of the details of the complaint, it should be noted that the plaintiff seems to allege that the Consular Officer adjudicating the application, on more than one occasion, made determinations that were "conclusive, speculative, equivocal or irrelevant"*. The result of this, in the plaintiff's view, incorrect adjudication was the placement of a "quasi-denial" marker in the plaintiff's fiancee's case file. This "qusai-denial," in conjunction with a subsequent revocation by USCIS, which occurs automatically if the petitioner does not actively challenge the revocation, results in the automatic establishment of a permanent bar to admission to the USA regardless of the fact that USCIS initially deemed the petition worthy of approval.

Some might posit that this method of finding an applicant permanently inadmissible is "boot strapping" because the two agencies involved use administrative protocols such as automatic establishment of permanent misrepresentation based upon "conclusive, speculative, equivocal or irrelevant"* findings, rather than legal and factual findings on the part of the Consular Officer, to bar admission to fiances of American Citizens.

The outcome of this case remains unclear, but there is little doubt that the final decision in the case may have a significant impact upon the way in which K-1 visa applications and petitions are processed in the future.

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