K1 visa returned to NVC

[Babasahb]

Hello everyone! I submitted an i129f for my fiancée in Afghanistan. In September of 2012 I went to Afghanistan to throw an engagement party. The day after I got there, we had the religious ceremony to allow us to be able to see each other and speak to each other. We threw the party the next day and we were allowed to be together since we has performed the religious ceremony. We never threw a wedding as we were planning to do that here in the US as all my family is here. We did obtain a document called a nikka khat in our language where we both myself and my fiancée had to declare our relationship, so essentially a marriage certificate.

I came home after being with her for a month and filed the i129f. Because we had not actually gotten married, I decided to apply for the fiancée visa for a K1. Since I have grown up in the states, I never gave any attention to the religious ceremony or the document we got in our language. I submitted pictures of the ceremony and even labeled them nikka on the back, which is the name for the ceremony. I also submitted copies of my passport and everything.

We were approved with the uscis in May of this year and the case was sent to kabul. I decided to visit her again this past august and the day after I got there, she got a call for her interview. We gathered all of our paperwork and scheduled the medical. We went to the medical, and they asked if she may be pregnant since she needed to be vaccinated. We weren't sure if she was or not, so we decided to be safe and the doctor said he can waive the requirement because of the potential pregnancy.

She went to the interview, and was asked only a couple of questions. One of which was, where was your fiance after the engagement. My fiancée told him the truth which was that I was with her. She said she explained that after the nikka ceremony, we were together. She said the officer and the translator asked her several times when her wedding was. Because we never actually had a wedding, she said she would respond we are not married, we just did the religious ceremony and that's it, that we are planning on getting married in America with the huge reception and all.

They gave her a yellow card that said the case is under further review and they told her they would call her soon. We never got a call, and I returned to the US very disappointed. I check the status of the case everyday and as of two weeks ago, the case is returned to the NVC.

I am very upset as now, she is in fact pregnant. I have hired a lawyer that has advised me to not wait for any response from USCIS, and just apply for the i130 petition. I explained to him the circumstances and he says he strongly believes that the case was returned because the co feels we were married. I have given him all the documents to begin the i130 process, including the marriage cert.

I am worried that she will never be able to come here. We did nothing intentional to misrepresent the case or ourselves. I feel that I should have had a lawyer at the beginning of all this, and we could have avoided this all.

Will applying for the i130 make a difference? At this point, I am not even worried about the fact that this could take another year. I am more worried that she will never be able to come here and be barred.

I want to know the exact reason why it is being returned even though I am almost certain that it is because we are not eligible for a fiancée visa since we are married in the eyes of the co.

Is this course of action the best way to go? We don't want to wait for anything from the uscis bc the lawyer said it could take a while before we get that letter.

Anyone been in a similar case? I feel like this is just a huge misunderstanding, and I hope that this will not permanently ban her from coming to the US.

[rayb]

****sahb,

Your gal's K1 visa was denied because the reviewer found you ineligible for a fiance visa since you are married already. The only remaining question is the "language" of the denial, whether a conclusion was reached that you committed attempted visa fraud (applying for a fiance visa to circumvent a long wait for a spousal visa).

I've done a few fiancee and spousal petitions for Afghan applicants and have had just the reverse occur, that the marriage documents weren't recognized after the K3 husband arrived in the states, and they had to remarry. Also, some of my Afghan clients went through the same religious ceremony you describe and succeeded in obtaining fiancee visas, but this was in other countries where the marriage would have had to be recorded to be recognized (Switzerland).

Your attorney's advice is right on. It could take a long time or you may never get a letter from USCIS explaining your appeal rights. Don't even think about trying to appeal this denial decision. Turn right around and submit a spousal petition, and have your paperwork reviewed by a more experienced person before you submit it.

FWIW, photos of engagement ceremonies are viewed with suspicion by USCIS and U.S. consulates elsewhere and sometimes result in investigations to find if a marriage has occurred, and /or is registered locally as a marriage.

--Ray B

Hello everyone! I submitted an i129f for my fiancée in Afghanistan. In September of 2012 I went to Afghanistan to throw an engagement party. The day after I got there, we had the religious ceremony to allow us to be able to see each other and speak to each other. We threw the party the next day and we were allowed to be together since we has performed the religious ceremony. We never threw a wedding as we were planning to do that here in the US as all my family is here. We did obtain a document called a nikka khat in our language where we both myself and my fiancée had to declare our relationship, so essentially a marriage certificate.

I came home after being with her for a month and filed the i129f. Because we had not actually gotten married, I decided to apply for the fiancée visa for a K1. Since I have grown up in the states, I never gave any attention to the religious ceremony or the document we got in our language. I submitted pictures of the ceremony and even labeled them nikka on the back, which is the name for the ceremony. I also submitted copies of my passport and everything.

We were approved with the uscis in May of this year and the case was sent to kabul. I decided to visit her again this past august and the day after I got there, she got a call for her interview. We gathered all of our paperwork and scheduled the medical. We went to the medical, and they asked if she may be pregnant since she needed to be vaccinated. We weren't sure if she was or not, so we decided to be safe and the doctor said he can waive the requirement because of the potential pregnancy.

She went to the interview, and was asked only a couple of questions. One of which was, where was your fiance after the engagement. My fiancée told him the truth which was that I was with her. She said she explained that after the nikka ceremony, we were together. She said the officer and the translator asked her several times when her wedding was. Because we never actually had a wedding, she said she would respond we are not married, we just did the religious ceremony and that's it, that we are planning on getting married in America with the huge reception and all.

They gave her a yellow card that said the case is under further review and they told her they would call her soon. We never got a call, and I returned to the US very disappointed. I check the status of the case everyday and as of two weeks ago, the case is returned to the NVC.

I am very upset as now, she is in fact pregnant. I have hired a lawyer that has advised me to not wait for any response from USCIS, and just apply for the i130 petition. I explained to him the circumstances and he says he strongly believes that the case was returned because the co feels we were married. I have given him all the documents to begin the i130 process, including the marriage cert.

I am worried that she will never be able to come here. We did nothing intentional to misrepresent the case or ourselves. I feel that I should have had a lawyer at the beginning of all this, and we could have avoided this all.

Will applying for the i130 make a difference? At this point, I am not even worried about the fact that this could take another year. I am more worried that she will never be able to come here and be barred.

I want to know the exact reason why it is being returned even though I am almost certain that it is because we are not eligible for a fiancée visa since we are married in the eyes of the co.

Is this course of action the best way to go? We don't want to wait for anything from the uscis bc the lawyer said it could take a while before we get that letter.

Anyone been in a similar case? I feel like this is just a huge misunderstanding, and I hope that this will not permanently ban her from coming to the US.

[Babasahb]

thanks for your response Ray! I am worried that she will never be able to come here. Could she be barred after this incident, making the whole i130 process irrelevant? When would I actually find out of this information? Being born and raised here in the US, I payed no attention to the "ceremony" and the fact that we may actually be married for immigration purposes.

We just purchased a new house since we knew we needed more room, and I had been saving up for the wedding, but I feel like it's been all a waste.

If we ever hear anything back from the i129f, we will respond to it, but will it affect the i130 case we will be beginning. I don't want to go through all this again and end up in the next interview with another denial. Since this is an honest mistake and my fiancée was honest in the interview about just doing the ceremony and not a wedding, is it possible the uscis/ consulate will suggest we refile a spousal visa instead, or will they automatically flag us with fraud?

Any advice would help ease my worries.

[rayb]

It could be months before you receive the standard USCIS (Stateside) denial and appeal information. Even then it will not advise you to file an I-130, just that the application was denied and how you may appeal the denial (for many more months).

So long as the reviewer's decision did not reflect his belief that your wife was trying to hide something, I believe that an I-130 submission for a spouse will be handled better throughout the process.

You might email the "immigrant visa unit," which handles K1 processing, at the Embassy directly and ask if the denial history is accompanied by "without prejudice" or "with prejudice." This annotation is sometimes reflected on denials of entry and consular visa denials. "Without prejudice" means that the adverse action had to be taken because of regulations, but if there are future visa applications they will be processed "without prejudice" from prior denials.

Otherwise, your only option is to move ahead with a spousal petition, as recommended by the attorney you are using. I've had a handful of K1 visas denied at the Embassy interview, after which new K1 applications, but usually new spousal visa applications, were successful. Those denials were usually the result of insufficient sponsorship proof, or a generic "insufficient evidence of ongoing relationship," or lack of evidence of a completed prior divorce. Though these incidents are not the same as your situation, they are indicators of consular recognition of earlier paperwork errors that were remedied.

For different reasons, processing at Kabul provides unusual problems. One of my clients for a spousal visa was told everything was okay, and she waited and waited, and a visa package never showed. By then weeks after the interview, all sorts of accusations were flying between the parents of bride and groom to each other. The groom's contacts in Kabul later claimed that the girl's visa was issued, but was "sold" by an Afghan national working in the Embassy. You might consider having your wife processed at Islamabad or Delhi, if she were to claim legal residency at either country, as some of my Afghan clients had smoother visa issuance experiences at those locations.

--Ray B

thanks for your response Ray! I am worried that she will never be able to come here. Could she be barred after this incident, making the whole i130 process irrelevant? When would I actually find out of this information? Being born and raised here in the US, I payed no attention to the "ceremony" and the fact that we may actually be married for immigration purposes.

We just purchased a new house since we knew we needed more room, and I had been saving up for the wedding, but I feel like it's been all a waste.

If we ever hear anything back from the i129f, we will respond to it, but will it affect the i130 case we will be beginning. I don't want to go through all this again and end up in the next interview with another denial. Since this is an honest mistake and my fiancée was honest in the interview about just doing the ceremony and not a wedding, is it possible the uscis/ consulate will suggest we refile a spousal visa instead, or will they automatically flag us with fraud?

Any advice would help ease my worries.

[Babasahb]

Thanks again Ray!

The CO should not, under any circumstance, feel that my fiancée was hiding something from him. She told him the truth about the nikka ceremony as well as the engagement party and the fact that we were planning a wedding in the states. I even included a picture of us together during the party and labeled it "nikka day" on the back. So it is not like we were hiding anything, but rather that there was a huge misunderstanding.

Again, being born and raised in the states, I didn't pay any attention to that part of the occasion or the document we were given. We were allowed to be together just as a lot of my family here is the states. There is another Afghan couple I know who just had the nikka ceremony and never actually got married here in the US. I guess it is just a matter of cultural/religious/legal issues, all of which can be blurred if you don't have any experience, as in my case.