DOS Cable on K Visa Processing

VISAS - INFORM CONSULS

E.O. 12958: N/A
TAGS: CVIS, CMGT, KFRD
SUBJECT: PROCESSING FIANCEE PETITIONS
REF: 9 FAM 41.81 NOTES 5 AND 8

1. REF FAM NOTES REQUIRE POSTS TO RETURN FIANCEE PETITIONS
TO THE INS FOR RECONSIDERATION WHEN THERE ARE SPECIFIED
DISCREPANCIES BETWEEN THE FACTS DETERMINED IN THE INTERVIEW
AND WHAT WAS STATED ON THE PETITION. INS AND VO HAVE
AGREED THAT CHANGES IN THE INA SUBSEQUENT TO THE DRAFTING
OF THESE NOTES NO LONGER MAKE THIS PRACTICE MANDATORY, AND
POSTS MAY NOW USE DISCRETION IN DETERMINING WHETHER THE NEW
EVIDENCE WARRANTS RETURN OF THE PETITION TO THE INS.

2. 9 FAM 41.81 NOTE 5.2 STATES THAT ALL CHILDREN OF AN
ALIEN APPLYING FOR A K-1 VISA MUST BE LISTED IN THE K VISA
PETITION. IF THE BENEFICIARY HAS A CHILD NOT NAMED IN THE
PETITION, THE CONSULAR OFFICER MUST SUSPEND ACTION ON THE
PETITION AND RETURN IT TO THE APPROVING INS OFFICER FOR
RECONSIDERATION. NOTE 5.3 STATES THAT IF THE FACTS OF A
BENEFICIARY'S PRIOR MARITAL HISTORY ARE NOT CONSISTENT WITH
THE INFORMATION IN THE APPROVED PETITION, THE PETITION MUST
BE RETURNED TO THE INS FOR RECONSIDERATION, EVEN IF THE
BENEFICIARY IS FREE TO REMARRY. NOTE 8.2 STATES THAT WHERE
THE ALIEN IS DETERMINED TO BE INELIGIBLE BASED ON A 212(A)
GROUND AND A WAIVER OF THIS INELIGIBILITY IS AVAILABLE, THE
CONSULAR OFFICER SHALL RETURN THE PETITION TO THE INS FOR
RECONSIDERATION, AND ONLY BEGIN PROCESSING THE WAIVER
APPLICATION IF THE PETITION IS REAFFIRMED.

3. ALL THE ABOVE STATED FACTORS RAISE SIGNIFICANT QUESTIONS
CONCERNING THE BONA FIDE NATURE OF THE RELATIONSHIP, WHICH
COULD JUSTIFY RETURNING THE PETITION TO THE INS. THE FACT
THAT THE PETITIONER WAS UNAWARE OF SIGNIFICANT BIOGRAPHICAL
FACTS RELATING TO THE BENEFICIARY IS A RED FLAG INDICATING
THE RELATIONSHIP COULD BE MALA FIDE. EVIDENCE OF A PRIOR
MARRIAGE OR PRIOR CRIMINAL CONVICTION COULD ALSO CAUSE A
PETITIONER TO RECONSIDER THE RELATIONSHIP AND MIGHT, IF
REVEALED, LEAD TO A WITHDRAWAL OF THE PETITION.

4. VO NOTES, HOWEVER, THAT SAFEGUARDS NOW EXIST WHICH
WARRANT MORE DISCRETION ON THE PART OF CONOFFS THAN IS
ALLOWED IN THESE NOTES. THE FAM GUIDELINES DATE FROM AT
LEAST THE 1970S, PRIOR TO THE PASSAGE OF INA 216 IN 1986.
FIANCEES NOW RECEIVE ONLY CONDITIONAL STATUS UPON
ADJUSTMENT, AND HAVE TO TAKE ADDITIONAL STEPS TO PROVE THE
RELATIONSHIP IS BONA FIDE BEFORE RECEIVING PERMANENT
RESIDENT STATUS. MOREOVER, INS WORKLOAD AND PROCESSING
TIMES WERE SIGNIFICANTLY LOWER WHEN THESE GUIDELINES WERE
PROMULGATED. THEREFORE, WHAT WAS ONCE A MINOR
INCONVENIENCE TO THE PETITIONER CAUSED BY RETURNING A
PETITION COULD NOW CAUSE SIGNIFICANT PROCESSING DELAYS.

5. BASED ON THE ABOVE, INS AND VO AGREE THAT POSTS MAY NOW
USE DISCRETION IN DETERMINING WHETHER TO RETURN A PETITION
TO THE INS BASED ON THE DISCOVERY OF CHILDREN NOT LISTED IN
THE PETITION, DISCREPANCIES IN THE MARITAL HISTORY OF THE
BENEFICIARY, OR CONDITIONS WHICH REQUIRE WAIVER
CONSIDERATION. WHERE POSTS ARE SATISFIED THAT THE
PETITIONER IS AWARE OF THE NEW EVIDENCE AND THE
RELATIONSHIP IS BONA FIDE IN NATURE, POSTS MAY CONTINUE TO
PROCESS THE CASE WITHOUT FIRST RETURNING THE PETITION TO
THE INS. INS HIGHLY RECOMMENDS THAT POSTS OBTAIN A SIGNED
STATEMENT FROM THE PETITIONER ACKNOWLEDGING THAT HE OR SHE
IS AWARE OF THE NEW EVIDENCE AND IS WILLING TO CONTINUE
WITH THE PETITION. SUCH A SIGNED STATEMENT SHOULD BE MADE
PART OF THE VISA PACKET. IF POSTS QUESTION THE LEGITIMACY
OF THE RELATIONSHIP OR HAVE DOUBTS AS TO THE PETITIONER'S
KNOWLEDGE OF THE NEW EVIDENCE, POSTS CAN CONTINUE TO FOLLOW
THE FAM GUIDANCE AND RETURN THE PETITION TO THE INS. INS
WILL FOLLOW THROUGH WITH ATTEMPTS TO ASCERTAIN PETITIONER'S
KNOWLEDGE OF THE NEW EVIDENCE AND THE LEGITIMACY OF THE
RELATIONSHIP.