Documenting a K-1 Visa Petition: Minimalist or Kitchen Sink?
I have been arguing for years against the "throw in the kitchen sink" approach to documenting U.S. immigration petitions. I recently received support for my position petition while speaking at an immigration law seminar in New York City. Sitting to my right was William Yates, former Chief of Domestic Operations for the USCIS. He strongly advised the assembled attorneys not to follow a “kitchen sink” approach to assembling immigrant petitions, noting that internally the USCIS mantra is “approve only if you can’t deny,” so the fewer opportunities you give the USCIS to deny a petition, the better.
Many petitioners believe that the more they show the government, the less likely the government will be to deny their petition or ask for additional evidence. My view has always been that its best to give the government the minimum necessary documentation to create an approvable petition (including, in some cases documents carefully addressed to a discrete “red flag” issue), and nothing else, because each superfluous document contains the possibility of eventually creting the basis for a denial. We have seen this dozens of times (if not hundreds of times) as petitioners come to us with a failed petition and we see that an unnecessary and damaging document was included in the case petition. Worse still, we're stuck with these documents because they remain part of the case record no matter what is submitted in the appeal or in new petition. A common example of this type of mistake is the petitioner who includes in his petition copies of the Western Union receipts showing money being regularly sent to his fiancée. The U.S. petitioner thinks this shows his commitment to his fiancée and seriousness in regard to the relationship. The U.S. consular officer, on the other hand, is more likely to view this financial support as something that undermines the fiancée's claim to be motivated solely by the desire for love and romance.
There is a more sophisticated argument for "frontloading" I-129F petitions, which is based on the notion that the U.S. consulate is not allowed to deny a petition based on a “re-adjudication" of facts already reviewed by the USCIS. The problem with his theory is that that U.S. consulates routinely disregard this constraint on their behavior. We've tried to argue it before the consulates many times and they simply ignore it based on their view that new facts have arisen during the consular interview and therefore they have every right to reassess the fiancé or petitioner’s qualification for the visa. The consular officers are especially emboldened by the fact that most of their judgments are subjective and that a consular officers decision may be challenged only based on mistakes in law, not on mistakes in facts or their evaluation.
Arguing their re-adjudication point makes some sense if you are appealing the case after it's been returned to the USCIS with a request for revocation. But the USCIS no longer allows appeals of K-1 petitions denied by the Consulate, instructing petitioners instead to re-file the I-129 petition, so this rationale for frontloading no longer exists for K visa cases. Even in you are preparing a spousal visa case, where an appeal of a consular denial is still possible, do you really want to take the risk of a USCIS or consular denial based on the very small possibility that some extra document thrown into the USCIS petition will be useful to you months or years later in an appeal of a denial of your fiancées case? Of course not, the disadvantages far outweigh the advantages.
Many petitioners believe that the more they show the government, the less likely the government will be to deny their petition or ask for additional evidence. My view has always been that its best to give the government the minimum necessary documentation to create an approvable petition (including, in some cases documents carefully addressed to a discrete “red flag” issue), and nothing else, because each superfluous document contains the possibility of eventually creting the basis for a denial. We have seen this dozens of times (if not hundreds of times) as petitioners come to us with a failed petition and we see that an unnecessary and damaging document was included in the case petition. Worse still, we're stuck with these documents because they remain part of the case record no matter what is submitted in the appeal or in new petition. A common example of this type of mistake is the petitioner who includes in his petition copies of the Western Union receipts showing money being regularly sent to his fiancée. The U.S. petitioner thinks this shows his commitment to his fiancée and seriousness in regard to the relationship. The U.S. consular officer, on the other hand, is more likely to view this financial support as something that undermines the fiancée's claim to be motivated solely by the desire for love and romance.
There is a more sophisticated argument for "frontloading" I-129F petitions, which is based on the notion that the U.S. consulate is not allowed to deny a petition based on a “re-adjudication" of facts already reviewed by the USCIS. The problem with his theory is that that U.S. consulates routinely disregard this constraint on their behavior. We've tried to argue it before the consulates many times and they simply ignore it based on their view that new facts have arisen during the consular interview and therefore they have every right to reassess the fiancé or petitioner’s qualification for the visa. The consular officers are especially emboldened by the fact that most of their judgments are subjective and that a consular officers decision may be challenged only based on mistakes in law, not on mistakes in facts or their evaluation.
Arguing their re-adjudication point makes some sense if you are appealing the case after it's been returned to the USCIS with a request for revocation. But the USCIS no longer allows appeals of K-1 petitions denied by the Consulate, instructing petitioners instead to re-file the I-129 petition, so this rationale for frontloading no longer exists for K visa cases. Even in you are preparing a spousal visa case, where an appeal of a consular denial is still possible, do you really want to take the risk of a USCIS or consular denial based on the very small possibility that some extra document thrown into the USCIS petition will be useful to you months or years later in an appeal of a denial of your fiancées case? Of course not, the disadvantages far outweigh the advantages.
posted by John Roth at
11:20 AM
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