K-3 Visa at a Third Country Foreign Post

I've received numerous inquiries over the last few months asking whether the best way to avoid the difficulties with the Guangzhou Consulate is to get married outside China and file for a K-3 visa at the "third country post". The recent email reply I've placed below well encapsulates my view on the subject:

 

Gerry,

I’ve always steered my clients away from the idea of getting married in Hong Kong or Thailand or some other third country as the way to get around the problems with Guangzhou. None of my clients have done it, or will do it, if I have anything to say about it. Now we are hearing about Chinese (PRC) K-3 spouses running into big problems with processing their K-3s in Hong Kong. There are several reasons why processing outside of China is a bad idea. First, as general proposition, consular officers or less likely to approve a visa in circumstances of uncertainty. The foreign 3^rd country consular officer is going to know less about the language, culture, and most importantly, the documents and fraud problem in the home country than the local consular officers do, and thus he or she will tend to err on the side of caution - requesting additional evidence or even returning the file to the USCIS for revocation.

Another thing - whatever you might think of consular officers, they are not fools. They know when someone is “forum shopping” and they may well draw an inference that your case is weak and wouldn’t withstand the scrutiny of the more savvy home country consulate.  Consular officers also do not live in a vacuum in their little foreign posts. They rotate assignments often (and they might be in the home country post next year -  imagine the camaraderie!). Indeed, they tend to be loyal to a fault one to the other. Of course, they know what’s going on in Guangzhou, and are not likely to want to undermine their colleagues (and you can bet they will be in touch with Guangzhou if they start seeing a lot of these cases – what do you think THEY will say? “Oh, go ahead and approve it!”).  If anything they’re likely to believe that the home country consular officers understand the locals better than they do, and therefore they’re likely to be skeptical of the K-3 spouse standing before them.

There are practical difficulties with this strategy, as well. One obvious negative consideration is the cost and expense of getting married outside your fiancee's local environment. Then [fiancée name deleted] will have to travel back to Thailand or Hong Kong at some considerable expense for the K-3 interview. And what happens if she gets a request for additional evidence, and the foreign consulate wants a second interview (not a rare occurrence)? She can be stuck far from home for weeks or months (and your buddy on the web site who talked you into this isn’t going to be footing the bill, you can bet on that!). An even more serious problem is that, under current rules, the pending I-130 petition will also be sent back to join the K-3 petition. In the current environment, betting on the foreign post is betting all of your capital.  You won’t get a second shot at the home country consulate. 

Finally, no one knows what the posts are going to look like in six months. Myself, I’ll take the devil I know over the devil I don’t.

In my mind, this marry in another country idea is a gimmicky solution that appeals to people who want a simple, neat solution to a difficult, complex problem. I’m not saying they are all going to fail, not at all, but on balance my view is that you’re better off going to the home country with a well-prepared case than trying to beat the system with strategies that are more likely to fail than to succeed.  

 

Guangzhou Complaint Memorandum Published Today on ILW.com

ILW.com today published my complaint memorandum about the Guangzhou U.S. Consulate as the featured article on its daily report of recent developments in immigration law. Every serious immigration attorney in the U.S. will likely read it (or at least be aware of it). This can only add to the pressure on the Guangzhou Consulate to reform its review standards.

Lately, the USCIS is issuing large numbers of Notices of Intent to Revoke (NOIR) for cases previously sent back to the USCIS with a request for revocation. The NOIRs spell out the reasons for the initial consular refusal to issue, and provide the petitioner and his/her attorney a chance to respond. This was the main goal of my memo, and is heartening news that things are trending in the right direction. Let's keep up the fight, though. We're not done here.

Attention Also Being Paid by CIS???

On April 9, 2009 the USCIS issued a fact sheet discussing revocation cases at CIS. See http://www.uscis.gov/files/article/FactSheet%20_VisaRevocations__9Apr09_.pdf. Coming just a few weeks after my complaint, it could indicate that the CIS is paying attention to the complaint as well. There's nothing really new in the memo, but the powers-that-be apparently feel the need lately to explain themselves.

Also, a couple of weeks ago my office received a Notice of Intent to Revoke on an I-130 petition that had been sent back to the CIS with a request to review/revoke just two months previously. The case was not a China case. It did include a detailed description of the Consulate's reasons for questioning the relationship, however, per the CIS guidelines. Right now I'm trying to learn from CSC whether this case is just a fluke or whether instead it represents a positive trend in processing revocation cases.

Attention Is Being Paid

I’ve been preoccupied lately with the recent move of my office to a location closer to New York City, so I apologize for not updating this blog in recent weeks.

Here’s the latest:

On Monday of this week I received an email from Governor Huntsman personally thanking me for “the background information" my memo provided him and promising to follow up. Upon reflection, I have decided not to discuss my future contact with Mr. Huntsman on this blog or publicly in any way, unless he gives me his prior consent. The future Ambassador will have to deal with a certain number of entrenched bureaucrats in Guangzhou, and if he agrees to have extensive discussions with me prior to his appointment, it could be interpreted by some as an implicit endorsement of my criticism of the Guangzhou Consulate. This could limit his willingness to speak with me at length. So, there won’t be any more public updates of this particular issue unless and until the Governor agrees to it in advance.

But this doesn’t mean that the shock troops out there should lessen their efforts to convince their Congressional representatives to side with reform at the Guangzhou Consulate. If anything we should all re-double our efforts to ensure that the future Ambassador will have the political cover he’ll need to bring real reform to immigrant processing at the Guangzhou U.S. Consulate. So, please keep fighting the good fight out there.

In another development, I received an email yesterday from an editor of ILW.com – a leading web portal for discussion of immigration law matters, and one that is read by virtually all immigration attorneys - asking for my permission to reprint my memorandum as an article on ILW.com’s site. I have agreed.