Understanding the Possible Adverse Consquences of an I-130 Denial

A forum user recently posted a great immigration question about the potential adverse consequences of a K1 denial on a subsequent I-130 petition. This article will discuss the different potential adverse consequences that may arise after a K1 denial and an I-130 denial respectively.

Before I begin the substantive discussion of this issue it is important to provide some background information. In the forum post I mentioned above, the user mentions a "P6C marker." The correct term is actually "P6ci" but it is also frequently referred to as "P6C." The term "P6ci"is short hand used by consular officials to refer to a case that has been denied pursuant to INA 212(a)(6)(c)(i). In summary, that provision of law provides that any person who attempts to obtain a visa or any other immigration benefit by making a material misrepresentation or committing fraud is inadmissible to the United States. What exactly constitutes fraud or misrepresentation is beyond the scope of this article but it is important for the purposes of this article to note that it is a factual determination entirely within the discretion of the consular officer. Most importantly, a finding of inadmissibility under INA 212(a)(6)(c)(i) renders the applicant inadmissible under a provision of law for which it is very difficult to obtain a waiver.

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Consular Processing of Denied K1 Applications

In the post I mentioned above, the K1 visa application was denied at the consular level. (This is the stage in the process when most K1's are denied.) When a K1 visa is denied, the consular official is required to follow certain procedures which are set forth in the Immigration and Nationality Act ("INA"), the Code of Federal Regulations or the Foreign Affairs Manual ("FAM"). The FAM is essentially the internal procedures manual used by consular officials which (in theory) is based on U.S. law. In a K1 case, the consular official is required to do a number of things when a K1 is denied because the applicant is found to be in eligible, including:

  1. Orally informing the applicant of the denial and the legal basis therefore;
  2. The refusal and officers notes regarding the refusal must be entered in the Consular Consolidated Database ("CCD");
  3. Provide the applicant and any attorney of record with a written decision setting forth the denial and the legal basis for the denial. Most posts meet this requirement by completing Form OF-194;
  4. Enter of the reasons for the visa refusal in the Non-immigrant Visa ("NIV") computer system;
  5. Conducting an internal review by a superior of at least 20% of visa refusals. (This does not give a K1 applicant the right to a review.); and
  6. Enter the visa refusal in the Consular Lookout and Support System ("CLASS")

(*This is a general list of the internal consular procedures for handling a K1 application which is denied. Other procedures may apply depending on the basis for the denial.)

Once the consulate has completed its internal processing of the denied K1 application it is returned to the USCIS with a memorandum noting that the K1 application was denied and the reasons therefore. What happens next was the source of confusion exhibited in the recent forum post. Currently, the USCIS simply notifies the U.S. Citizen petitioner that the case was received from the consulate and the case is being administratively closed because the K1 petition is no longer valid. This is because a USCIS approved K1 is only valid for four months and in most cases by the time a denied K1 gets back to the USCIS the four month validity period has expired. These USCIS notices contain a statement that the case is being closed without prejudice to future applications which is important for those who may file a new K1 or get married and apply for an immigrant visa.

The likely source of confusion on this point is that, prior to the issuance of a USCIS policy memorandum in 2008, the USCIS was taking further action on some denied K1 cases which it received from the consulates. I don't have any personal experience with this so I do not know for sure but presumably such further action could include revocation which would trigger the P6ci notation and constitute a factual finding of inadmissibility. Since the issuance of the 2008 USCIS policy memo this does not seem to occur. However, it is important to point out that this does not mean: 1) The USCIS is prohibited from taking additional action in a particular case; and 2) That the legal or factual basis for a specific K1 denial by the consular official could not create a potential ground of inadmissibility that could be asserted by a consular official in a future case.

Potential Consequences of a K1 Denial

If the consular denial of a K1 visa does not automatically trigger a P6ci notation and finding of inadmissibility what does this all mean? The short answer to this question is that it depends on the circumstances of each case. While it seems clear that after the 2008 USCIS memorandum the consular denial of a K1 will not prejudice a future K1 or I-130 application. However, this does not mean the a consular officer could not deny a future K1 or I-130 case and find the applicant inadmissible because of something related to the previously denied petition. The fact that the USCIS takes no action on a denied K1 case and a new filing by the U.S. Citizen petition does not necessarily cure any problems related to the previous case.

For this reason, it is very important for K1 applicants who have been denied fully understand the legal and factual basis for the denial. In a good case, this may simply mean the applicant will have to address and overcome this issue in a subsequent filing. In a bad case, the legal or factual basis of the K1 denial could render the applicant inadmissible and form the basis for a future denial. If your K1 visa has been denied you should seek the assistance of a K1 fiance visa attorney.

Potential Adverse Consequences of an I-130 Denial

In the previous section I discuss the potential problems one can face in a future K1 or I-130 case after a K1 denial. The laws and procedures regarding a denied I-130 are different and the potential adverse consequences are more severe.

An I-130 petition which has been approved by the USCIS may be revoke under U.S. law automatically or after notice. This article will only address I-130 petitions which are revoked after notice. (Automatic revocation applies in a limited number of circumstances including cases where the petition is withdrawn by the petitioner, the death of the petitioner or the death of the beneficiary.)

U.S. law provides that any approved I-130 petition may be revoked by a USCIS officer authorized to approve such a petition on any lawful grounds. As a practical and procedural matter the USCIS generally only exercises this power after a consulate refuses to issue the immigrant visa and returns the file to the USCIS. In these cases, the consular officer who denied the visa prepares a memo to the USCIS setting forth the legal and factual basis for the denial. While the possible legal or factual basis for the consular denial could be any number of things, in the case of a consular denial based on INA 212(a)(6)(c)(i) a misinterpretation or misapplication of a note to a provision of the FAM is resulting in an extremely harsh consequence for I-130 applicants denied under this provision of law.

The relevant note in the FAM provides, in part:

...USCIS retains exclusive authority to disapprove or revoke family-relationship IV 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, you must return the petition to the appropriate USCIS office. If the petition is revoked, the materiality of the misrepresentation is established.

For some reason, consular officials have been giving this note contained in what is essentially a procedural manual the force of law. To illustrate, in the common INA 212(a)(6)(c)(i) denial case, the denied application file is returned to the USCIS along with a memorandum from the consular official who denied the visa. This memo sets forth the consular officials version of the facts upon which he made the determination that the applicant was inadmissible under INA 212(a)(6)(c)(i). After the USCIS completes its required processing of the case (the details of this are discussed in more detail in the next section), the USCIS must either revoke or affirm the petition. If the USCIS decides to revoke the petition it is required to notify the consulate who denied the visa of its decision to revoke the approved petition. Under the Department of State's ("DOS") current interpretation of their procedural note, the USCIS act of revocation automatically established the materiality of the alleged misrepresentation. The result is the same regardless of the factual or legal basis for the USCIS decision to revoke the petition. In fact, it is reportedly common for a USCIS to revoke a case on some other grounds when there is no actual finding of misrepresentation. However, the basis for the USCIS decision to revoke is immaterial under the current DOS interpretation of its procedural note. As a result, visas which are denied by consular officials pursuant to INA 212(a)(6)(c)(i) and thereafter revoked by the USCIS result in a P6ci notation on the applicant's file rendering the applicant inadmissible in any future visa application.

What Are the Consequences of a P6ci Notation?

The reason all of this is so important is that the end result of all of this is that an applicant who receives a P6ci notation is inadmissible as a matter of law. If the applicant files a future petition he will be denied on the grounds that he is inadmissible pursuant to INA 212(a)(6)(c)(i). The applicant is not entitled to any review of this finding in a subsequent petition and his only relief is to apply for a discretionary waiver which is very difficult to obtain.

USCIS Procedures for Handling Denied I-130 Petitions

I previously discussed the two methods in which an approved I-130 petition may be revoked. This section will discuss the USCIS process for revoking a petition after notice in more detail.

U.S. law requires the USCIS to provide the I-130 petitioner with written notice of its intent to revoke the approved I-130. This notice is commonly referred to as a Notice of Intent to Revoke or (NOIR). In addition to providing the petitioner with the NOIR, the USCIS must allow the petitioner the opportunity to offer evidence in support of the petition or in opposition to the grounds alleged for revocation of the approval.

If the petitioner does not respond to the NOIR, the approved petition is revoked by default. if the petitioner files a timely response to the NOIR the USCIS will render a decision to either revoke or affirm the petition after reviewing any evidence submitted by the petitioner.

Thus, it is imperative for anyone whose visa was denied pursuant to INA 212(a)(6)(c)(i) file a well-prepared response the NOIR. This is best handled by a qualified immigration attorney.

Conclusion & Closing Thoughts

The potential consequences of a K1 or I-130 denial are extremely serious and can have a permanent impact on denied applicants and their family members. While the potential consequences of a denied I-130 are (perhaps) more certain, the potential for future problems after a K1 denial maybe more difficult to identify and therefore are in some respects equally as dangerous.

The best way to deal with these issues is to avoid them in the first place. The potential adverse consequences of a K1 or I-130 denial underscore the importance of retaining an experience immigration attorney to handle the initial filing.

However, if you are reading this article you likely have already been denied a visa. While it is too late to prevent this issue at this point, it is critical that you proceed cautiously and with the advice and counsel of a qualified immigration attorney.

A special thanks to immigration attorney Marc Ellis whose article and input on this topic provided invaluable information for this article.

Phil

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