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.

Past Year Successes & A Couple of Disappointments

We had many successes during the past year (some of which even surprised us). See our chart of uncommon victories below:

Interview Date	Visa Type	Case Issues
January 24, 2011	CR-1	1. Married on 1st visit 2. Petitioner was married and divorced five times previously 3. Petitioner filed prior immigrant petition for his ex-wife and her 2 children in 2004
January 13, 2011		1. Case was denied as K-1 2. Couple married 3. K-3 petition filed 4. Guangzhou Consulate sent K-3 back to CIS for revocation 5. CIS agrees and revokes approval of I-129F 6. We appeal decision 7. We win appeal 8. Case goes back to GUZ 9. We prepare beneficiary for 5th time, visa issued on first day
December 2, 2010	CR-1	1. Married on the 1st visit
November 1, 2010	K-1	1. Petitioner had 3 prior marriages 2. Beneficiary’s English was fair/poor when they hired us; we helped move it to above average by time of IV
November 1, 2010	CR-1	1. Married on the 1st visit 2. Petitioner only made one trip to visit fiancée/wife prior to the IV
October 6, 2010	CR-1	1. 32 year age difference
September 14, 2010	CR-1	1. Petitioner did not disclose all his prior divorces on I-129F petition
September 9, 2010 Blue Slip for financials (all other cases in this chart were approved on 1st day)	CR-1	1. Married on the 1st visit 2. Beneficiary’s English was fair/poor when they hired us; we helped move it to above average by time of IV
August 19, 2010	K-1	1. 19 year age difference 2. Petitioner was still married when they met
August 16, 2010	K-1	1. 26 year age difference
July 12, 2010	K-1	1. Petitioner did not disclose all his divorces on the initial petition
June 8, 2010	K-1	1. 19 year age difference 2. Petitioner only made one trip to China
February 24, 2010	K-1	1. Beneficiary was a member of the Chinese Communist Party at time of IV
February 3, 2010	K-1	1. 20 year age difference 2. Petitioner had 3 prior marriages 3. Petitioner filed prior immigrant petition for his ex-wife
January 26, 2010	K-1	1. 20 year age difference 2. Beneficiary’s English was fair/poor when they hired us; we helped move it to above average by time of IV

But we had a couple of disappointments, too.

We hadn't had a case sent back from the Guangzhou Consulate for almost two years, when, in one week in early November 2010, we had two sent back. In one case the fiancee had become nervous during the interview and failed to follow some specific advice we had given her prior to the interview.

The other case continues to mystify us. It had some challenges (petitioner had brought another foreign wife to the U.S. before; both petitioner and beneficiary had been divorced multiple times) but certainly no more so that the cases cited above. Interestingly, the couple broke up a couple of weeks after the interview, so maybe the Consulate saw some weakness in this couple's relationship that we did not.

John Roth

Trouble Bring Parents to the U.S.

Dear Mr. Roth,

I sent this inquiry via your web site. Please note however, that my husband and I are petitioning for his parents to come to the US. They are 60 years old (however, there is nothing stated regarding age limits/discrimination for I-130 petitions). I petitioned for my husband to come from China (as we were married in China) and he came quite quickly. He has been here for almost 10 years and became a citizen 2 years ago. We are concerned about potential corruption and bribery between adjacent law firms at Tianyu. This never happened with my husband's case when the Consulate/Immigrant Visa Unit was located on Shamian Island (in fact, I submitted all the paperwork without hiring an attorney -- as I was a law student in Asian/European Immigration Law before I switched majors to theatre/musicology). Please add this to your blog and forward it to whomever is responsible for adjudicating cases (e.g. Immigrant Visa Chief, etc.). They must know about these improprieties and lack of consistency at their Consulate. My husband and I are vehemently frustrated and disgusted by the Consulate's treatment of his parents' case. For your information, the State Department and NVC have stated that all required documentation has been submitted and his parents' case has been approved for a visa.

As an addendum, the Consul Officer's Mandarin Chinese was poor in my opinion (when interviewing my husband's parents, lack of tonal precision, inappropriate usage of modal particles, reduplication of adjectives and certain idiomatic phrases), and if they were one of my students, they would clearly have a better grasp of the Chinese language and culture.

Dr. _____ _______
Professor of World Languages
Agent/Financial Representative - New York Life, Honolulu General Office

Per your Guangzhou blog, my husband and I have encountered many unpleasant experiences at the American Consulate. I completely agree with your views regarding the Consulate's arrogance and lack of professionalism when adjudicating relatives' petitions. My husband petitioned for his parents to come to the US, one of the main reasons why he became a citizen and to reunite our family (as other than the both of us and our son, we have no family in the US). His parents were given the infamous "blue sheet" and a yellow sheet claiming that they may potentially become public charges. The NVC has approved their application and I contacted the State Department and both of my Congressmen. Everyone was apalled that his parents' visas were refused. First, his parents would not be eligible for Social Security (they have not worked the requiste 40 quarters) nor Medicaid/Medicare (they have legitimate medical insurance, long term care insurance, life insurance, as I am an Agent/Financial Services Representative with New York Life), we own our home and land (mortgage free and clear), and have surpassed the poverty guidelines in overall assets and income. Furthermore, his parents will be employed in the US, under a contract with my husband's small business. The Consulate also mocked and outwardly laughed at the fact that my husband was a 'kitchen worker' and I have a doctorate in languages/theatre and musicology. Attorneys adjacent to the Consulate were trying to extort at least 16000 USD per person to expedite adjudication of cases, with the underlying guarantee that they could complete the case in 20 days to a month. Is there internal corruption with the Consulate and the adjacent 'attorneys and consultants'? My husband and I went to the Embassy the following week to ascertain exactly why his parents would be public charges -- frankly the Consulate General replied with very vague responses (e.g. no monetary amount of assets, e.g. $100,000 was considered 'too little' to expedite the cases for our household when according to the poverty guidelines $37,075 is the minimum amount of assets and income). Regardless, I sent the Guangzhou Consulate the following documents: his parents' employment contracts, a copy of my husband's business license, upcoming orders for his business, copies of checks for his parents (proof of salary), certified copies of the following -- my contract/registered representative license with New York Life, copies of my and my husband's Curriculum Vitae to attest that I do have a doctorate, studied extensively in Europe and speak/read/write and translate/interpret 7 languages (including Mandarin and Cantonese) and have taught at universities and my husband has his own business, our medical and dental insurance plans, bank statements/IRAs/401Ks, my Last Will and Testament/Trust and Estate Planning documents (left to my husband and parents in law), the deed to our house and land (including copies of land tax checks), our life insurance and long term care policies and long term care and life insurance policies for his parents, as well as sworn affidavits that these assets are "credible." If these assets are not "credible," Donald Trump would not be a credible petitioner. My husband and I traveled back to China in June to accompany his parents to the US. Also, I know the Consulate received the affidavits and documents two weeks ago, but so far no action has been taken. Please note that both my husband and I have NEVER be eligible for public assistance because we have too many assets, so how could his parents become public charges??

Communist Party Membership and Consular Processing

Many people believe that recent Communist Party membership will unavoidably lead to a lengthy delay in visa issuance after the Consular interview. This is not necessarily the case. Recently we helped a client obtain a K-1 visa at the Guangzhou U.S. Consulate even though she was still a member of the Chinese Communist party on the day of the interview. We had helped clients in the past obtain visas who had left the Party months earlier, but this was our first attempt at a visa for a beneficiary who was still a CCP member when interviewed (although she was in the process of letting the membership lapse). Because this was a particularly challenging case, I asked a young attorney on my staff, Laurie Wu¹ to research and write a legal memorandum on the applicable standards for review in such cases, and we used these results to counsel our client on how to present her Communist Party membership during the Consular interview. The beneficiary fiancee's visa was approved on the day of the interview. The Consulate was apparently convinced by our presentation that the beneficiary's participation was "non-meaningful", and thus they did not feel the need to order a Security Advisory Opinion from the State Department (which would have delayed visa issuance by several weeks). So, the visa could be approved immediately. I attach Laurie's memorandum hereto for the benefit of those struggling with similar issues.

¹ Actually at the time Laurie was technically not yet an attorney as she was still waiting for her bar exam results; she has since learned that she passed the exam and has been admitted to the NJ bar.

Response to web blog query re Hong Kong processing

Anonymous says:

John, I remember you telling me NOT to get married in Hong Kong back in April, but I "went with the herd" and did it anyway. Now people are saying that HK changed its policies and is being really tough with PRCs married in China. MY K-3 has been approved and CR1 should be approved soon (did electronic processing), but I'm scared to death of HK. Should I write them a letter saying I wasn't trying to avoid Guangzhou when I got married in HK?

First, Hong Kong has not changed its policies. The same people are there as were there earlier this year and the policies are all the same, as far as we can tell. The problem with getting married in a third country in order to avoid the consulate of the beneficiary’s home country is that it is almost ALWAYS a bad idea. It’s a case of being “too clever by half”. I posted something about this earlier in the blog (see Filing K-3 at Third Country Post After K-1 Denial).

OK, what to do?

The first thing to understand is that you get only one bite at the apple. Either your I-130 petition will be reviewed or the K-3. Normally, you would pick the K-3 because it’s faster. My view is that you will have a better chance of approval if you withdraw the K-3 and just go to Guangzhou for the I-130 interview (plus the bonus that after entry on the I-130 you will not have to go through with the adjustment of status process, work authorization, travel document, another affidavit of support, etc. etc., which IS the case with the K-3). Count on being asked by the Consular Officer in Guangzhou why you married in Hong Kong rather than on the mainland (the more natural choice, since your wife’s relatives are more close at hand). Do NOT lie and claim you had some personal/romantic/practical/whatever reason to get married in Hong Kong if none exists, or if you are “puffing” a rather weak reason to get married there. As I’ve said before, consular officers may be misguided in their policies from time to time, but they are most definitely not stupid and they usually see through bogus reasoning and rationalizations. When asked, the best answer is the honest one – “some people were recommending it earlier this year as a way around the problems at Guangzhou, but in the end we decided not to go that route,” or something like this. Consular offices tend to be pleasantly surprised by such candor, and, by being frank even when it’s painful, you will have enhanced your credibility for other questions answered during the interview.

What a Difference a Year Makes

9/28/09 Guangzhou, China
I just finished an extraordinary meeting with the Immigrant Visa Unit Chief at the Guangzhou U.S. Consulate (by the way, the information that I had earlier posted on my blog that a new Unit Chief was appointed in late July 2009 was incorrect; it’s the same person who has been there for a year and a half).

For those who haven’t read the rest of this blog, I travelled to Guangzhou almost exactly a year ago to get some information about K visa processing after having been completely frustrated for over a year trying to figure out what the heck was going on here. At that time, the Unit Chief refused to meet with me, and the Consular Officer I spoke with during Petitioner Hour refused to give me any meaningful information about my cases or about visa processing in general.

This time, the Unit Chief met with me for about 20 minutes and we had a wide-ranging discussion that covered many subjects. The Unit Chief was astonishing forthright and helpful. She answered every single question I asked her.

Here are some of the highlights:

The Guangzhou Consulate considers the K-3 a visa type that has lost its usefulness due to changes in processing times of I-130 petitions (which have gotten substantially shorter since the K-3 law was passed) and the processing times for K-3 visas (which are much longer than was originally contemplated by the drafters of the K-3 visa law). The two processing times have virtually collided and the K-3 saves at most two months time now, while adding substantially to the administrative burden of the overseas consulates. She’s largely right on that score. The game is scarcely worth the candle now that I-130 cases are taking less and less time and K-3 times remain stagnant. This disparity will get even less as petitioners opt for electronic processing of the I-130, the Unit Chief points out. Further, she reports that there’s an effort underway to change DHS policy so that K-3 petitions cannot proceed from the NVC to the consulate/embassy until the I-130 has also arrived at the NVC and has finished processing. This change, if implemented, this will further diminish the usefulness of the K-3 petition.

The Unit Chief was also refreshingly candid about the fact that the Consulate can and does make mistakes. She said this was particularly true in 2008 as the Consulate sought to work down the huge backlog it inherited from 2007. She says that the backlog now is zero and the Consulate is now current in its processing. That’s probably correct, too. In our experience, prior to 2008 petitioners and beneficiaries had to wait seven to eight months from CIS approval to interview date. Now it’s four to five months on average.

Attorneys are now allowed to make an inquiry about one specific case per Petitioner Hour meeting, although there’s no limit to the number of general questions. I asked the UC about the specifics of one particularly puzzling revocation case from 2008 (for which we currently have a K-3 petition pending), and she read to me several of the consular officer’s notes on the case. We therefore have a better understanding about what we need to do to make the K-3 interview a success.

There were other things she revealed, but I’m not sure I’m at liberty to discuss them. I want to check before posting.

One of the most surprising things that occurred was that te UC actually answered my question about what percentage of K visa beneficiaries are approved on the day of the interview (that is, a “pink sheet” rather than a white or blue sheet). She said “about 50%”. This was a higher number than I expected and shows that the earlier optimism that a new Consul General would substantially reduce visa refusals may have been premature. Our impression was that in the weeks after the new CG appeared at post the IV unit was approving a substantial majority of K visa cases on the first day. During the last six weeks, though, we’ve noticed an increase in the number of petitioners contacting us regarding cases returned to CIS by GUZ with a recommendation for revocation. So there’s obviously still work to be done shaking the Consulate from its skepticism about Chinese-American romances.

I’m optimistic, though, because better communication between the Consulate and affected parties (and it could scarcely be worse than it was until only recently) can help the Consulate better appreciate how authentic most couples are and to realize that a lot of good couples are getting caught in the Consulate’s overly broad fraud profile net.

One amusing final note - just before I left the meeting the Unit Chief ardently stated “We’re not the enemy, you know!”. I’m guessing she read my 3/15/09 memo. OK, I can let bygones be bygones if there's real change at Guangzhou.

Senate Confirms Jon Huntsman, Jr. as U.S. Ambassador to China

This Friday the U.S. Senate voted unanimously to confirm Utah governor Jon Huntsman as ambassador to China.

Sen. Orrin Hatch (R-Utah) issued the following statement Friday after the Senate confirmed Utah Governor Huntsman as U.S. ambassador to China:

“I am very pleased that the United States Senate recognized the tremendous qualities and leadership Governor Jon Huntsman will bring to the position of Ambassador to China. This position is of extreme importance to our nation and to the international world because of China’s continuing role in the global economy, and on the political international state. I look forward to great things from now Ambassador Huntsman, and have every confidence that he will continue to exemplify the leadership he demonstrated at the helm of our state, in a nation of great importance across the globe.”