| This post will briefly analyze a recently filed complaint | | | | for a visa under section 212(a)(6)(C)(i) of the Act." INA |
| against the US Federal Government and those | | | | 212(a)(6)(C)(i), 8 U.S.C. 1182(a)(6)(C)(i), is a permanent |
| agencies responsible for making K1 visa application | | | | bar to admissibility for misrepresentation. Pursuant to |
| adjudications. | | | | the Foreign Affairs Manual, 9 FAM 40.63 N10.1, State |
| This writer often discusses issues which might have | | | | Department placed a marker, called a "P6C1" marker, |
| an impact upon the overall processing procedures of | | | | or "quasi-refusal" in Ms. Pham's records, and will deem |
| American Family Visas. In the case of Tran v. | | | | USCIS revocation of the petition as automatically |
| Napolitano*, a lawsuit that was recently filed in the | | | | establishing the permanent misrepresentation bar to |
| Oregon Federal District Court, an American Citizen has | | | | any future immigration possibility.* |
| challenged the current administrative protocols | | | | Although this article will not attempt to go into all of the |
| associated with K-1 visa adjudication and denial. | | | | details of the complaint, it should be noted that the |
| At the time of this publication, there seems to be some | | | | plaintiff seems to allege that the Consular Officer |
| institutional confusion within the American Immigration | | | | adjudicating the application, on more than one occasion, |
| apparatus regarding the exact nature of visa refusals | | | | made determinations that were "conclusive, |
| issued by US Consular Posts abroad. For instance, | | | | speculative, equivocal or irrelevant"*. The result of this, |
| when a visa applicant from a country participating in | | | | in the plaintiff's view, incorrect adjudication was the |
| the Visa Waiver Program is issued a 221(g) refusal in | | | | placement of a "quasi-denial" marker in the plaintiff's |
| connection with an immigrant family visa, a K-1 fiance | | | | fiancee's case file. This "qusai-denial," when coupled |
| visa, or any US visa for that matter; then that refusal | | | | with a later revocation by USCIS, which happens |
| could detrimentally affect that individual's ability to | | | | automatically if the petitioner doesn't proactively dispute |
| subsequently enter the United States on the visa | | | | the revocation, results in the automatic establishment |
| waiver program. In accordance with recently | | | | of a permanent bar to admission to the United States |
| promulgated protocols under the Electronic System for | | | | irrespective of the fact that USCIS initially approved |
| Travel Authorization (ESTA) the United States | | | | the underlying petition. |
| Customs and Border Protection Service (USCBP) | | | | Some may argue that this process of finding an |
| would seem to view visa application "refusals" by the | | | | applicant permanently inadmissible is "boot strapping" in |
| Department of State as "denials" which should be | | | | the sense that the two agencies involved use |
| disclosed by those seeking admission to the US under | | | | administrative protocols such as automatic |
| the Visa Waiver Program. Existence of said "denial" | | | | establishment of permanent misrepresentation based |
| could potentially result in USCBP refusing to grant the | | | | upon "conclusive, speculative, equivocal or irrelevant"* |
| alien admission to the USA under the visa waiver | | | | findings, rather than legal and factual findings on the |
| program. | | | | part of the Consular Officer, to bar admission to |
| In the previously cited Tran* case, an issue similar to | | | | fiances of United States Citizens. |
| the "refusal" vs. "denial" dichotomy was brought to light. | | | | It remains to be seen how this case will unfold, but |
| In a direct quote from the initial complaint, the plaintiff | | | | there is no doubt that the ultimate decision in the case |
| alleged that the: | | | | could have a significant impact upon the way in which |
| State Department, in its denial, stated that, "[i]f USCIS | | | | K-1 visa applications are processed in the future. |
| revokes the petition, beneficiary will become ineligible | | | | |