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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Forget It Jake.... It's The US Consulate In Ho Chi Minh City

by Marc Ellis

In the classic movie "Chinatown", Jack Nicholson plays a private detective named "Jake Gittes". He takes a case that seems routine at first, but quickly turns into an impossible swamp of treachery and deadly double-dealing. Nothing is ever as it seems. And Jake can never quite figure out who is the boss. The climax of the movie occurs in LA's Chinatown. The bad guys win and Jake is left with only a nasty knife cut across his nose to show for his efforts to help his client. He is humiliated and filled with rage. Then a cop standing near him says,

"Forget it, Jake. It's Chinatown."
I know the feeling. I get it almost every time I deal with the US Consulate General in Ho Chi Minh City (Saigon). Fortunately none of the consular staff there have attacked my nose with a knife. But I think one or two of them would probably like to, if they had the opportunity.

But fortunately, I'm safe for the time-being. The staff at the US Consulate General in Ho Chi Minh City work behind secure plexiglass barriers designed to protect attorneys and members of the public from being attacked by consular employees. If you think I have that backwards, visit this consulate and you may understand my point.

The Consulate General is at 4 Le Duan Street, in District One, close to downtown. It is directly next door to the residence of the Consulate of France. The communist city planners of Ho Chi Minh City had an ironic sense of humor in deciding to place the Americans and French next door to each other. There is a small monument to the communist soldiers killed by Americans at the Battle of Hue, January 31, 1968. But to my knowledge, there is no monument to those killed at Dien Bien Phu on the French grounds.

Applicants for visas line up on the sidewalk to have their applications examined by two Vietnamese intake clerks who work behind thick, dark plexiglass. Although I have encountered different clerks inside these windows, most of them radiate the same attitude of hostility and contempt. So for the sake of this article, I have nicknamed these employees, Ms. Nguyen Thi Rottweiler and her twin sister.

Ms. Nguyen Thi Rottweiler and her sister do not like lawyers very much.
Here is how it works:
On December 1, 2003, I came to the window to submit a V visa application. The conversation proceeded as follows: Ms. Nguyen Thi Rottweiler: "Why are you here?" Ellis: (Hands her G-28.) Ms. Nguyen Thi Rottweiler: (Without looking at it, growls) "I know you're a lawyer. Why are you here?"
From this exchange, a practicing immigration attorney might conclude that the US Consulate General in Ho Chi Minh City is not a place that welcomes the participation of lawyers in the immigration process. I don't blame them. We're supposed to protect people from having their rights trampled. That sometimes happens at consulates. A Vietnamese national employee with a softer voice showed up to rescue me. Perhaps she was the trainer of the Rottweiler girls. She took the documents and asked politely,
"Where is approval notice?"
Any lawyer experienced with V Visas will know two things:
  • An I-797 is secondary evidence of eligibility with DOS. The Department of State has made the determination not to accept I-797' s as primary evidence of V Visa eligibility. It is not a pre-requisite. [1]
  • V Visas are for beneficiaries of petitions which have not yet been approved. So there is no approval notice. For entire cable see [2]
In my case, my client had the original letter from the National Visa Center, but had lost her I-797 Notice of Receipt. I pointed out to the two staffers that DOS had assured us that the CLASS computer data base was supposed to make the I-797's unnecessary by now.
The nice woman then told me, "Yes. We hope in two months that will be the case." I remember being told the same thing at an AILA Conference in San Francisco two years ago. My heart began to sink. But the nice lady accepted my client's V Visa application.
Thinking about I-797's and V visas, my mind turned from "Chinatown" to an old song by Louis Jordan and the Tympani Five, "Is You Is or Is You Ain't My Baby?". If the I-797 is not important enough to be primary evidence of eligibility, why do the consulates demand that they be included in the V visa application?

Practice Tips for submitting V Visa Applications at the HCM Consulate

Practice Tip No. 1 -- Have an I-797 Notice of Receipt with you.
If your client has lost it, replace it with a photo copy of the DOS cable (included in this article), that says I-797's are only secondary evidence of eligibility and that staffers do not have the authority to "...examine secondary evidence such as I-797 notices and determine eligibility to apply for a V based solely on that secondary evidence....". (Paragraph 15 DOS Cable 9/01 on V Visas). But since a lengthy DOS Cable is not likely to get you past Ms. Nguyen Thi Rottweiler and her twin sister, enlist the help of a congressional representative or US Senator well-ahead of time, pointing out that consulates refuse to accept original I-797's as evidence of eligibility and yet demand I-797's be attached to the applications before they will be accepted. As a policy matter, I think it is wise to enlist congressional assistance even in routine consular cases. If Congress receives enough complaints about the way consulates process immigrant visas, perhaps one day we will see hearings on Capital Hill that lead to reform.

Go ahead, call me an optimist. "Is you is or is you ain't my baby?" "Forget it Jake, It's the US Consulate in Ho Chi Minh City."
Part II. "Waiting for Godot"

Visa applicants who manage to survive Ms. Nguyen Thi Rottweiler are allowed to proceed inside to a long waiting room where they can submit their documents, answer questions, or obtain their approval stamps in their passports.

The waiting room of the US Consulate General in Ho Chi Minh City, is a cross between a maximum security Federal Penitentiary and the lobby of an Econo-Lodge. The protruding wall sections by each processing window alternate between prison grey and eggshell white. There are at least fifteen windows. I stopped counting at that number. But most of the windows are un-staffed. Visa applicants and attorneys sit on long, steel benches.

During my first trip to the US Consulate General in Ho Chi Minh City, I was submitting a response to a 221(g) letter. After informing the intake person inside, I was told to go to Window 11.

Practice Tip No. 2 -- In the Waiting Room of the US Consulate General in Ho Chi Minh City - when you are told to go to a window DO NOT go to that window!. Sit down and wait for a staffer from that particular window to call you up. If you make the mistake of going to the window as your were instructed, you will likely encounter a cousin of Ms. Nguyen Thi Rottweiler, who will tell you very sharply to sit down and wait until your name is called.

Practice Tip No. 3 -- If you have more than one application to submit - inform the screener. If he or she tells you to sit down, ask to speak to his supervisor. On one occasion, I told the intake person I had three separate applications. He told me to sit down. I waited two hours. After I was finished with the first application, I went back up to his window to submit the other two. Fortunately, a higher-level consular employee was present. She was very nice and told me that in the future, if I had multiple applications, I would be allowed to submit them at once, rather than going through the absurd, pointless routine of submitting one at a time and waiting separately for each one.

A Note on Client Representation & G-28's
On one occasion, Ms. Nguyen Thi Rottweiler would not allow me to submit documents on behalf of a client on a Friday afternoon. I had a G-28 signed by both the petitioner and the beneficiary. But she told me erroneously, that a different attorney had previously enrolled and the Consulate had not yet received a letter from the petitioner asking to replace that attorney with me. Therefore, she could not allow me to submit any documents on behalf of my client.

Practice Tip No. 4 -- Always remember that there is a difference between a lawyer submitting documents on a client's behalf, and an attorney being authorized to obtain information about the client's case.

Where there is a previously-enrolled attorney, the FAM is clear that the consular staff are not allowed to release information to the new attorney without the previous one being removed. However, on request, the consulate can correspond directly with the petitioner or applicant and allow a subsequently enrolled attorney to submit documents on the clients' behalf.

However, even if there is a previous attorney who has not been removed, a signed G-28, coupled with the two letters mentioned in the FAM , is enough to satisfy the law and allow the new attorney to submit documents on his or her client's behalf, and for the consulate to correspond directly with the applicant, at least until the previous attorney can be replaced as representative of record. I have included the pertinent parts of the FAM below. I have added emphasis where pertinent.

9 FAM 40.4 N12 Working with Attorneys: Establishing Relationships
(TL:VISA-599; 11-24-2003) When a letter is received from an attorney in the United States and the consular officer is reasonably satisfied that an attorney-client relationship exists, correspondence between the post and the attorney may be treated with the same courtesy as provided to the visa applicant. Reasonable evidence establishing the attorney-client relationship may include:

  1. Form G-28, Notice of Entry of Appearance as Attorney or Representative, required for practicing before DHS;
  2. A printed letterhead stationary showing membership in the legal profession (member of a U.S. State or District of Columbia bar association practicing in the United States) and stating that such an attorney has been retained or employed to represent the applicant; and
  3. A letter from the applicant that identifies the attorney or representative with whom the applicant established such relationship.

9 FAM 40.4 N12.1 Corresponding with Representative of Record
(TL:VISA-30; 01-31-1990) The consular officer shall correspond directly with the applicant's representative of record,[3] even in cases where the applicant is physically present in the United States, unless the applicant requests otherwise. However, the fact that there is a representative of record does not preclude the post from corresponding with the applicant, provided the post sends a copy of the communication simultaneously to the applicant's representative. If the representative inquires about the reasons for refusal of a visa, the delay in issuing the visa, or any other aspects of a visa case, the reply shall contain only pertinent facts which are unclassified. [See 9 FAM 40.4 N5.2 above.]

Part III: "Nobody expects the Spanish Inquisition!"

The US Citizen Services Section is available to provide certain notarial services, such as the Affidavit of Single Status. And this is an area where the consulate could be of great assistance. The Government of Vietnam has some very specific and unusual requirements relating to marrying one of its citizens. (One of the most interesting requirements, is the need for the sponsor to consult a physician and obtain a written letter stating that he or she is not mentally ill!) I don't know if this precaution is based on the government's dim view of foreigners or a dim view of its own citizens as marriage candidates. But it's certainly interesting*.

The "Affidavit of Single Status" is well-known to practitioners who assist with family-based immigration among the Vietnamese in America. It is required by the Government of Vietnam. It is not a requirement of the CIS or DOS. The instructions for affidavits of single status and the forms can be found at the Vietnam Consulate of San Francisco website at: http://www.vietnamconsulate-sf.org/frontpage.html Click on the links "Consular Section" and "Instructions for Marriage with Vietnamese Citizens".

The US Consulate will assist in preparing affidavits of single status for US citizens. I was told by an officer that the sponsor must have his or her fiance(e) present as well as all the documents listed at the above website. The Consulate will not prepare affidavits of single status for lawful permanent residents. And unfortunately, even if you are a US citizen, there is a four-to seven week waiting period before they will schedule you.

Practice Tip Number 5 -- Advise your clients to complete the affidavits of single status in the USA, if possible. If they must make them at the consulate, the US Citizen and his or her intended spouse, should be prepared to undergo a harrowing consular interview about the bona fides of their upcoming marriage. In this respect, the US Consular Officers Ho Chi Minh City are rather like Monty Python's "Spanish Inquisition".

"Nobody expects the Spanish Inquisition!"
Warn your clients in advance, if they complete the affidavit of single status at this consulate, they should expect the Spanish Inquisition. I watched one poor naturalized Viet Khieu grilled mercilessly by a consular officer about the names of his intended's family members. He appeared to me at least, shocked that he would be treated like this in an office of his own government. I wanted to say,
"Forget it Jake...", but I didn't know if he had seen the movie.
At the stage of the Affidavit of Single Status, no petition has been filed with either the consulate or CIS. This document is not required by any agency of the US Government. It is merely an affidavit by a US citizen. It's a notarial act. The truth of the affidavit is at issue, not the wisdom or validity of a marriage he or she may enter into at some date in the future. The name of this office is US Citizen Services, (emphasis added).

Was this an attempt to gather information about a petition that may be submitted in the future, or was it an effort to discourage US citizens from entering into a fraudulent marriage? Or was it an attempt to discourage US citizens from using the consular notarial services at all?

If it is the former, it is arguably an abuse of the process. What should be at issue is the identity of the affiant and the contents of his or her affidavit. The bona fides of his or her upcoming marriage are not even relevant at this stage.

If it is the latter, it's more understandable. This office is under-staffed. The consular officers I spoke with were polite and professional to me. In fact, I was more impressed with the staff in this office than with any other at the consulate. But I was shocked at how they treated a US citizen who was merely trying to have an affidavit notarized.

Part IV: "We're not re-adjudicating! But we demand more evidence."

In July 2001, Secretary of State Colin Powell sent a cable to the consular posts immigrant visa processing offices. I have included the entire post in this article. The paragraph headings of the post are indicative of the problems Secretary Powell was trying to address: "No Deep-Sixing", "Don't Sit On Cases", "Be Judicious In Returning Petitions", and ominously, "Use 221(g) for IV Cases".[4]

The memo reminds consular posts of what should have always been their procedure. A case should not be returned to CIS merely because the officer has certain suspicions about it. The evidence justifying revocation must be "clear". If more evidence is required, the consulate has the power to request it, using a 221(g) letter.

The cable points out that a petition approved by CIS creates a presumption in favor of eligibility for the visa. The only time revocation is called for is when the Consular Officer "knows or has reason to believe" that the petition approval was obtained through fraud, misrepresentation or other unlawful means, or where there is clear evidence that the beneficiary is not entitled to the visa status granted by the petition. Such cases should be rare and would arise from new information that was not known to CIS at the time it approved the petition. In such rare cases, the Consular Officer needs to present "solid factual evidence" as a basis for revocation.

Unfortunately, there is a fine line between requesting additional evidence under 221(g) and re- adjudicating the merits of the entire petition. And that is what is happening today. Post 9/11 and post Colin Powell's July 2001 cable. 221(g) letters are being used to re-adjudicate the merits of petitions approved by CIS. They are also being used as an excuse to sit on cases where the consulate does not have enough evidence to send the petition back to CIS.

I have actually had this Consulate request a US citizen petitioner provide proof of a residence in the US from 1991! Another attorney has told me about a case where CIS refused to revoke an approval sent back by the HCM consulate and the consulate still refuses to issue the visa!

Part V: "Forget it Jake. It's the US Consulate General in Ho Chi Minh City"

There are unique problems of marriage fraud in Vietnam. Part of this problem stems from a refugee policy administered by the US government in the years following April 29, 30, 1975. Many people who were officially persecuted and had good reason for wanting to leave Vietnam were denied refugee status because a father or brother had spent less than three years in communist prison camps.

The identity of the all-knowing bureaucrat at DOS or INS who drew this line is a mystery. And it's not a statutory requirement.

So in the past, a lot of persecuted people who had enough evidence to qualify for a grant of asylum in immigration court would be denied refugee status by refugee processing officers at the Bangkok Thailand Consulate.

No doubt some would-be refugees tried to use phony marriages or other fraudulent avenues of family sponsorship to escape persecution. But most of the population of Vietnam today was not even alive on April 29 and 30, 1975. Still, I concede, the tradition of wanting to escape Vietnam via a phony family-preference visa is still alive and well.

I cannot blame the consular officers for being aggressive in rooting out fraud. But something is terribly wrong with a system which grants Saudis a presumption of eligibility, even post-9/11, granting them a fast-track "Visa Express", that allowed travel agents to be involved in the process, and yet focuses considerable resources on protecting America from Vietnamese spouses and fiancees.

Something is wrong when an unsuspecting US citizen merely trying to have an affidavit notarized is put through an interrogation that would frighten any law-abiding citizen.

But I'm just a lawyer. When I begin to think thoughts like that, I just tell myself,
"Forget it Jake, it's the US Consulate General in Ho Chi Minh City".
US Consulate General Ho Chi Minh City IMMIGRANT VISA UNIT 4 Le Duan Blvd., District 1, Ho Chi Minh City Tel: (84- 8) 822-9433 Fax: (84- 8) 822-9434 - http://hochiminh.usconsulate.gov

NON-IMMIGRANT VISA UNIT: 4 Le Duan Blvd., District 1, Ho Chi Minh City Tel: (84- 8) 822-9433 fax: (84- 8) 822-9434 http://hochiminh.usconsulate.gov


[1]This is a silly rule because an original I-797 is accepted as primary evidence of eligibility for CIS inside the United States. It also leads to a bureaucratic conundrum at the consular level. The Department of State says that I-797's are not to be used as proof of eligibility for V visas. But intake personnel at the consulates demand I-797's before they will allow you to submit a "V" Visa application. If an I-797 is not important enough to establish eligibility - why do consular personnel demand that it be attached to the application? I suspect this is a turf problem between CIS and DOS. The Department of State needs to rethink its inconsistent and disdainful treatment of I-797's issued by CIS in the U.S.


[2] State Department Cable On V Visa Processing (9/01)
R 010251Z SEP 01
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
POUCH
AMEMBASSY FREETOWN
POUCH PRISTINA
POUCH DUSHANBE
POUCH BELGRADE
POUCH NDJAMENA
UNCLAS STATE 151917

E.O. 12958: N/A
TAGS: CVIS
SUBJECT: V VISA PROCESSING: NEXT STEPS

REF: A) STATE 057338 B) STATE 035234

Summary
-------

1. By the end of August, V eligible applicants with files
at NVC and F2A priority dates through September 30, 1998
will be listed in CLASS and will receive a V information
letter from NVC. V1, V2, V3 classification definitions
are herein clarified.

---------------------------------------------------------
More V Applicants Have Been Added to CLASS, But Check the
Priority Date in the CLASS Hit Before Issuing a V Visa.

---------------------------------------------------------

2. Names of prospective V applicants with F2A priority
dates between April 1, 1998 to September 30, 1998 have
been entered into CLASS, and NVC is completing the mailing
of V information letters. Full text of NVCs letter is
below. We decided to advance entering names of V
applicants into CLASS because many applicants who will be
eligible for a V are approaching posts to ask when they
might apply. Rather than tell them that there is no
record of eligibility, posts will be able to tell
inquirers when they might apply. NVC has already begun

identifying the next batch of V eligible applicants with
priority dates through December 31, 1998.

3. Under this new system, consular officers are reminded
that a hit in CLASS will no longer mean that an applicant
is immediately eligible to apply for a V. The CLASS hits
include the applicants priority date, and consular
officers must now check the priority date to ascertain
that the required three-year waiting period has been met
before a V visa can be issued.

----------------------------------
Text of NVCs V Information Letter
----------------------------------

4. Begin FYI: Dear Applicant:

According to our records, you have a visa petition on file
as the spouse or child of a Legal Permanent Resident. The
Legal Immigration Family Equity Act created the V visa to
allow spouses and minor children of Legal Permanent
Residents to enter the U.S. to live and work legally in
the U.S. while waiting for immigrant status. You may be
eligible to apply for the V visa.

Our Website at HTTP://TRAVEL.STATE.GOV has information
about V visas. If you are outside the United States, you
must apply for the V visa at selected US Embassies or
Consulates. If you are in the U.S., you may apply to
change your current status (regardless of what that status
might be) to V status by contacting the U.S. Immigration
and Naturalization Service. INS has a Website at:
http://uscis.gov

You should also be aware of the 3- and 10- year bars,
which are triggered by a departure from the United States
after accruing unlawful presence on or after April 1,
1997. Generally, the 3-year ban applies to persons who
accrued more than 180 days of unlawful presence, and the
10-year bar applies to persons who accrued 1 year or more
of unlawful presence. V nonimmigrants can trigger the
3/10 bars in one of two ways. Persons applying for V
visas abroad may have already triggered the bar when they
left the United States. Persons applying to change their
status to V in the U.S. may later trigger the bar by
traveling, if they had already accrued enough unlawful
presence before their status was changed to V. In any
case, V's who have triggered the bar become inadmissible
when they apply for adjustment of status to permanent
residence, unless INS approves a waiver at the time of
application for adjustment.

If your immigrant visa case priority date is current for
processing, you are not eligible for a V visa, and you
will soon receive information on how to apply for your
immigrant visa. Otherwise, to apply for a V visa
overseas, use the attached contact information sheet to
telephone the consular section at the embassy or consulate
listed below, and they will give you further instructions.

Records show that your visa file has been assigned to the
post below:


Name of postAddress

When communicating with the consular section by telephone,
letter or e-mail, you must give your full name and case
number as they appear below:

Applicants name
Applicants case number
Applicants INS receipt number


You need to complete the V visa application worksheet (DS-
3052). Please write your telephone number and address on
the form. We have included one with this mailing, but it
too is available on our website.

Sincerely,

Bureau of Consular Affairs End FYI.

5. Enclosed with the letter is a list of posts and
telephone numbers as well as the DS 3052. The DS 3052 has
been revised and will include mailing addresses for both
the applicant and the petitioner. It will be distributed
to posts shortly.

--------------------------------------------------------
The NVC V Information Letter Is Not a Prerequisite for V
Processing

--------------------------------------------------------

6. The Department reminds posts that NVC's letter to V
applicants is intended to inform applicants that they may
be eligible to apply for a V. Posts should not ask
applicants to submit the letter as proof that they may be
eligible to apply for a V. There are no security features
in the letter, and the letter is of no use to adjudicating
consular officers at post. Consular officers should
instead use the CLASS system for this purpose as that is
the intent of adding V hits to CLASS.

----------------
9B Ineligibility
----------------

7. As posts are aware, the LIFE Act specifically exempted
V visa applicants from the ineligibility of 212(a)(9)(B).
However, there is no similar exemption from 9B for those V
applicants who later apply for permanent resident status.
The third paragraph in the NVC letter to V applicants was
written by INS and was included in the letter to advise
applicants of this future potential ineligibility.


-----------------------
V-1, V-2, V-3 Clarified
-----------------------

8. In order to conform to the manner in which INS is
defining these V classifications, posts must issue V visas
as follows:

V-1 - issue to the principal applicant who is the spouse
of an LPR for whom a petition was filed with INS on or
before December 21, 2000 and who has waited three yearssince the filing date of the petition.

V-2 - issue to a child of an LPR for whom an individual
petition was filed by the LPR parent, on or before
December 21, 2000, who has waited three years since the
filing of the petition.

V-3 - issue to a derivative child of a V-1 or V-2 visa
holder.

9. Formerly, most posts issued V-2 to all children of the
V-1 regardless of whether or not the child had an
individual petition in his/her name. By issuing V-2 to
all children, the POE was unable to determine if a V-2
holder was actually a derivative unable to enter the U.S.
before the principal applicant. The Department's
instruction in para 3 of reftel B is rescinded. Conoffs
must use the revised definitions of V1, V2, and V3 so that
consular and INS practices are the same in this regard.

-------------------------
Dependents and CLASS Hits
-------------------------

10. As noted in previous ALDACS on V visas, we used the
F2A I-130 files at NVC to create the V hits in CLASS. Any
dependent included on the original petition was added as a
separate CLASS hit. As in IV processing, any derivative
who can demonstrate that he/she is the minor, unmarried
child of a V1 principal applicant is entitled to
derivative status. Names of dependents who were not
listed on the original petition, perhaps because they were
born after the filing of the petition, are not found in
CLASS because NVC had no means to know of the existence of
any dependents except for those listed on the petition,
yet they are eligible to apply for a V visa.

11. It is not necessary for posts to request that the
name of an eligible dependent be added to CLASS. NVC does
not enter the CLASS hits; this is done by technical staff
in Washington using the NVC database. If a derivative of
a V1 is deemed eligible for V3 issuance, post need only
send a Visas Hawk to NVC for the NCIC name check if the
individual is at least 16 years of age. Once the NCIC
name check is done, the V 3 can be issued without the CLASS
hit.

---------------------------------------------------------
Don't tell applicants they are not eligible for V because
their petitions are not yet approved by INS

---------------------------------------------------------

12. To be eligible for a V visa, the LIFE act stipulates
only that the petition must have been filed on or before
December 21, 2000, and that the applicant has waited three
years since the filing date. It does not mandate that INS
must approve the I-130 petition before a V may be issued.

13. Procedurally, because the Department wanted to
implement the LIFE Act ASAP and did not want to wait for
INS to come up with a method to verify petition filings,
we decided to begin with those cases for which we knew
that the petition had been filed. Those were the cases in
storage at NVC that had been approved by INS and forwardedto NVC to await availability of a visa number. Since the
enactment of the LIFE Act, VO has been working with INS to
verify the filing of petitions with INS that are not yet
approved by INS. We do not yet have an answer, but we
hope to establish an electronic link with INS to identify
this type of case. The Department will have some news to
share with posts on this matter in the next few weeks.

14. Meanwhile, posts should advise individuals who are
potential beneficiaries of unapproved F2A petitions that
were filed over three years ago that they (or their
petitioner) may contact INS to request verification of the
filing of the petition. INS should subsequently fax such
verification to NVC at 603-334-0759. Do not rpt not advise
potential applicants or petitioners to contact NVC.

--------------------------------------------------
Secondary Evidence of Petition Filing Presented by
Applicant

--------------------------------------------------

15. As stated above, we continue to work with INS to
verify petition filings and add applicants eligible to
apply for a V to CLASS. Absent the original approved
petition at NVC or post, INS is the only entity that can
confirm that an I-130 petition was filed. While this is
not stipulated in the LIFE Act, it is the only sensible
procedure available. At this time, posts have no
authority to examine secondary evidence such as I-797
notices and determine eligibility to apply for a V based
solely on that secondary evidence. As noted above,
applicants not found in CLASS should be referred to INS
(not NVC) for verification of petition filing.

-------------------------------------------
Primary Evidence of Petition Filing at Post
-------------------------------------------

16. Posts that accept I-130 petition filings and store
the files at post are reminded that they already possess
primary evidence of the petition filing. If a petition
was approved by post and remains at post, a V visa may be
processed if the case falls within the parameters of the
LIFE Act. Because these files were not at NVC,
beneficiaries identified in such petitions will not
receive the V information letter, nor will the applicants
name appear in CLASS. In such cases, posts must send a
Visas Hawk to NVC for the NCIC name check before
proceeding. It is not necessary to request that these
applicants names be added to CLASS.

-------------
Age-Out Cases
-------------

17. V 2 and V 3 visas may be issued until the day before
the applicant turns 21, and the visa validity must be
limited to the day before they turn 21. There is no
provision in the LIFE act to benefit dependents who are
over 21 years of age or those who age out in the United
States when they become 21. Unlike those who enter the
United States in F2A IV status, those who enter as V2 or
V3 lose legal status and work authorization when they turn
21. If their status expires, unless they have made atimely application to change to another nonimmigrant
status or found another way to maintain lawful immigration
status before their V status expired on their 21st
birthday, they will be like any other alien in the United
States not in valid status. An alien who remains in the
United States after the expiration of his/her period of
lawful admission without finding another lawful status
begins to accrue unlawful presence and is subject to
removal. Posts should so inform aging-out applicants who
qualify for V issuance.

18. Notwithstanding this difficulty for age outs, there is
no legal reason to deny V visa issuance to those who are
about to age out of the class. V visas may be issued up
to the day before the applicants 21st birthday. Posts may
not refuse applicants about to age out under the intending
immigrant provision of Section 214(b) as there is no
nonimmigrant intent required of V applicants.

19. As usual in IV processing, aging out V cases should
be expedited as much as possible by posts.

20. NVC does not have sufficient staff to check the files
manually for a case that does not appear in CLASS, but
such searches will be conducted for age outs. Posts may
accept an e-mail message from NVC regarding ageouts in
lieu of a CLASS name check; print out the message from NVC
and attach it to the OF-156. NVC will as usual perform
the NCIC name check for age outs.

-------------
Retrogression
-------------

21. As posts are aware, several Family-sponsored
preference category cut-off dates were retrogressed last
month in order to keep issuances within the FY 2001 annual
limits. With the start of the new fiscal year in October,
any cut-off date that was retrogressed will return to the
cut-off date established in June 2001.

22. This means that some F2A cases that were current in
July were suddenly no longer current. These F2A cases
immediately became eligible for V visas as long as they
had not been interviewed by a consular officer and were
not pending cases. Insofar as post scheduling allows,
these cases may be processed as V's; however, posts are
under no requirement to expedite such cases. Posts may
wish to explain to applicants that they may prefer waiting
until October when their IV case will again be current.

23. In this regard, posts may wish to frontline as many
IR cases as possible in September as there will be a crush
of family sponsored preference cases for October.
Employment-based categories were not retrogressed and
remain current with many numbers available for the
remainder of FY 01.

-----------------------------------
Refusals and Revocations of V Cases
-----------------------------------

24. As noted in reftel, cases that are not in the class
of applicants outlined by the LIFE act may be refusedunder Section 214(b). This may include cases that have
already aged out or those who did not wait the mandatory
three years since the petition filing.

25. If in processing a case, post develops information
that indicates the original I-130 petition may have been
approved in error, post may return the case to INS for
revocation. Of course, post will not have on hand the
petition and the file from NVC, and INS requires the
original petition before revocation will be considered.
In these cases, post may request the file from NVC by e-
mail to ShipshockSJ@state.gov.

26. If a post has reason to believe that a petitioner may
no longer be entitled to legal permanent resident status,
the consular officer shall return the petition to the
appropriate INS office after obtaining the file from NVC.
Only INS can determine whether an alien has lost LPR
status.

--------------------------------------------------------
Reminder: No Packets of Documents are Required for V's
--------------------------------------------------------

27. INS reports that some V applicants arrive at the POE
with an IV-style packet of documents to present to INS.
These packets include the medical exam, petitioner's tax
records, etc. Posts should not rpt not produce these
packets for V applicants. Conoffs should simply return
supporting documents to the V applicants and suggest that
they safeguard the documents to support later an
application for legal permanent resident status.

----------------------------------
V2 and V3 Validity Must be Limited
----------------------------------

28. INS also reports that many V2 and V3 applicants
applying for entry at the POEs were issued 10-year
validity V visas. Posts must rpt must limit the validity
of V2 and V3 visas to the day before the applicants
twenty-first birthday.

29. FYI: INS has opened a new service center in Missouri
(MSC) that will handle LIFE Act visa categories, both the
V's and the K3's. The Department will provide posts
information on INS procedures as it becomes available so
that posts general guidance to the public is complete and
accurate.

30. Conoffs may address any questions on the instructions
provided in the cable to CA/VO/F/P (C Osage).

POWELL


[3] Here is a sample client letter to accompany a G-28: This fit my purposes and Ms. Nguyen Thi Rottweiler was forced to accept documents submitted on behalf of my client. But it won't fit every situation. However, in a case where there is a previous attorney enrolled in the case, it satisfies 9 FAM 40.4 N12 & 12.1.

Date:

To The Consulate General of Vietnam
4 Le Duan District 1
Ho Chi Minh City, Vietnam

Chief, Immigrant Visa Processing

Dear Consular Officer,

Mr. John Marcus "Marc" Ellis, Attorney, is my attorney of record. I request that you correspond with me directly at my address of record shown below. I request that Mr. Ellis be allowed to submit information on my behalf.
.
I do not know of any other attorneys of record, but if there are, I request that you not correspond with them, but with me directly, as stated in 9 FAM 40.4 N12 & 12.1.

For the purposes of Visa Interview scheduling, I request that you correspond with me directly at my address of record which is: _________________________________

Thanking you, in advance, for your fair consideration, I remain,


[4] 1. Cite as "Posted on AILA InfoNet, Doc. No. 01071333 (July 13, 2001 )." DOS Addresses Petition Revocations

R 130616Z JUL 01
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM

UNCLAS STATE 121801

E.O. 12958: N/A
TAGS: CVIS, CMGT, KFRD

SUBJECT: GUIDANCE ON PETITION REVOCATIONS

REF: AIRGRAM M-240

1. SUMMARY: From time to time, most posts have occasion to return IV and petition-based NIV petitions to the approving INS service centers to request reconsideration and revocation. Posts should be judicious about returning petitions, since the revocation process is lengthy and the evidentiary standard that must be met to sustain a petition revocation is relatively high. Posts should not use the revocation request process as a means of disposing of problematic cases in which fraud, misrepresentation, or ineligibility for status is only suspected but cannot be clearly established. When posts have determined that a petition merits a revocation request, the case should be returned to the approving service center quickly to avoid lengthy delays in processing. To help posts with this process, CA/VO/F/P and CA/FPP are currently working withINS to develop a standard petition return memo and guidelines for writing effective revocation memos. END SUMMARY.
Be judicious in returning petitions
------------------------------------------------------

2. Several months ago, CA/VO/F/P conducted an informal survey of posts' petition revocation processes to determine post practices and needs in regard to revocation requests. We learned that, for the most part, posts return relatively few petitions to INS for revocation. This is a positive practice from our perspective, since as a general rule petitions should only be returned to INS when fraud or misrepresentation or ineligibility for status can be clearly established or when the petition merits automatic revocation because of such circumstances as the death of the petitioner.

3. 9 FAM 42.43 provides general guidance on preparation of memos to INS requesting revocation of IV petitions. Separate sections in 9 FAM 41 on petition-based NIV categories (H, K, L, O, P) provide similar guidance on when to return those petitions. In all cases the guidance Amphasizes that INS approval of a petition is prima facie evidence of the applicant's entitlement to visa status, and that consular officers should not attempt to readjudicate petitions. Rather, a consular officer should only seek revocation of the petition if the officer knows, or has reason to believe, that the petition approval was obtained through fraud, misrepresentation or other unlawful means, or that the beneficiary is not entitled to the status conferred by the petition. Petitions generally should not be returned unless the post uncovers new information not known to INS at the time of petition approval. The FAM cautions that posts should seek revocations "sparingly," to avoid inconveniencing the petitioners and applicants and to avoid creating an additional administrative burden for INS.

4. Providing solid evidence of fraud or misrepresentation in a petition relationship may not be achievable in many cases, particularly those involving marriage or relationship fraud. The FAM guidance on revocations makes this point on several occasions -- posts seeking revocations must show the "factual and concrete reasons for revocation." INS has asked us to remind consular officers that revocation requests must provide solid, factual evidence of fraud or misrepresentation, evidence that is likely to stand up in a court of law. In the case of sham marriages, for example, 9 FAM 42.43 N2.2 notes that INS requires at the least either documentary evidence that money changed hands between the petitioner and beneficiary or factual evidence that would convince "a reasonable person" that the marriage was entered into solely to evade immigration laws. Without such evidence, INS will be unlikely to obtain a petition's revocation if a petitioner chooses to contest a notice of intent to revoke.

No "deep sixing"
---------------

5. Posts should not return petitions to INS based on mere suspicion or as a substitute for making a decision at post. If the evidence of fraud, misrepresentation, orineligibility for status is strong enough to lead to a likely revocation, returning the petition would be warranted. However, if post believes the evidence is not likely to lead to a revocation and returning the petition would be a wasted exercise, the petition should not be returned. Returning cases that are only suspect or that appear too complex to figure out is not appropriate and only increases INS' administrative burden and prevents the applicants and petitioners in these cases from obtaining the timely decision on their petitions to which they are entitled.

Use 221(g) with IV cases
------------------------

6. Please keep in mind the differences between revocation of the petition and denial of the visa application. In the absence of hard, factual evidence of fraud, misrepresentation, or ineligibility for status, consular sections are advised to issue the visa, assuming the alien is otherwise qualified, or if further investigation is warranted and holds a potential for resolving post's concerns, use a 221(g) refusal to obtain additional information. Posts should be generous in allowing applicants every opportunity to supplement their applications following a 221(g) refusal. Many consular sections polled by VO reported that they usually use 221(g) rather than petition return to INS as the most effective way of handling cases in which fraud is suspected and where further Information-gathering is likely to be able to resolve the doubts one way or the other.

7. VO supports this use of 221(g) with IV petitions, as returning a petition based on suspicion alone is not appropriate, and providing the applicant an opportunity to address post's doubts is a fairer way of dealing with suspect cases. We encourage posts to use 221(g), except in those IV cases in which fraud, misrepresentation, or ineligibility for status can be clearly established. 221(g) allows petitioners and beneficiaries to supplement the initial application and in many cases overcome the refusal. Per 22 CFR (9 FAM) 42.83(b), if an applicant fails to present evidence purporting to overcome the basis for the 221(g) refusal within one year of the refusal, post can initiate 203(g) termination procedures (9 FAM 42.83 N1.2).

8. 221(g) may also be appropriate for NIV petition cases. However, posts should note that there is no 203(g) termination process for NIV cases. If post obtains information not known to INS at time of petition approval which indicates that an applicant is not eligible for the visa category covered by the petition, the petition should be returned to the approving service center in accordance with FAM guidelines pertaining to the relevant visa category.

Don't sit on cases
------------------

9. Once post has decided that a case warrants return to INS, the memo requesting revocation should be prepared expeditiously and the case returned as quickly as possible. Keeping a case for a lengthy period because officers do nothave time to prepare the revocation memo is not fair to the applicant or petitioner, only invites more work in the long run in the form of congressional inquiries and calls about the case, and can even lead to litigation. It places an unfair burden on the petitioner and beneficiary, who in many cases would choose to contest the revocation but cannot do so until INS has received the file and sent a notice of intent to revoke to the petitioner. As a rule of thumb, posts should not allow petitions earmarked for return to INS to languish more than a week or two. Our e- mail poll revealed that by-and-large posts are aware of this need for quick processing and are preparing revocation memos with dispatch.

Working with INS to develop revocation memo guidelines
------------------------------------------------------

10. CA/VO/F/P and CA/FPP are currently working with INS to develop a consular return cover worksheet which posts will be able to use in returning petitions meriting revocation to the approving service centers. We are also developing guidelines which posts can use in preparing effective revocation memos that will satisfy INS' evidentiary requirements and thus most likely lead to a successful guidelines which posts can use in preparing effective revocation memos that will satisfy INS' evidentiary requirements and thus most likely lead to a successful revocation. We hope to be able to post this guidance on the Intranet later this summer.

11. Minimize considered.
POWELL


About The Author

Marc Ellis is an immigration attorney in New Orleans. He is also the an editorial board member and chat moderator for ILW.COM. In France, he is known as the composer of "The Fantomas Waltz". Mr. Ellis served two tours during the Vietnam War with the US Army, 1971-73. He can be reached at ellis@nternet.com.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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