Denial at interview because kids were not with me...

[bluecheese]

Hi,

I won the lottery, filled all the paper work, I have two kids, getting divorced, legally separated.

I declared all the family status correctly but as I do not have custody of the kids (the court has not decided yet), I decided that I would go to the US first then, based on the custody results I will eventually bring the kids over.

Early january, I sent a mail to the embassy to ensure that it would not be a problem if I did not bring the kids with me, as I am not planning to bring them to the US.

Earlier today, I was declined my visa for the reason my kids were not with me at the embassy for the reason that they do not like to have the kids coming later.

I was not given at that time a reason based on the section of law which applies. I am waiting for it.

Needless to say I am pretty frustrated, specially as I anticipated this issue and ask for advice before.

Any advice? I have read there is no appeal? Should I talk to a lawyer (I have heard you)?

 

[Britsimon]

Oh man that sounds harsh to say the least. From what you are saying they should not have denied your visa. However your situation is a bit complicated so maybe something got mixed up in the way you completed your forms.

1. You say you are legally separated. That means a court has recognized the separation - did that happen? If so, did that happen before the original eDV entry or when you submitted your forms? Did you list your status accurately at the time of entry and submission? If you were actually married and you entered separated when you were not separated that is a problem. Making a mistake with any of that that is grounds for denial.

2. Regardless of the custody situation you should have listed all your children on your eDV and your 122/230 forms. Not doing that is grounds for denial.

3. Did you complete 230 forms for your children as if they were going to the USA (or marked as to follow?)

4. When you emailed in January did they answer? What did they reply?

5. What embassy is this?

6. Are you quite sure you have been denied - not placed on AP? What was said about providing you the section of the law?

Essentially no there is no process for appeal if you are doing CP (outside of the USA). However, depending on your answers to the above it may be worth talking with a lawyer who is known to the embassy or finding some other way to contact senior officials at the embassy. If you are sure you have not made a mistake on the forms then you might be able to do something...

 

[SusieQQQ]

The interview letter does say all family members for whom you want visas need to come with you, but your situation is slightly different and it must be highly frustrating for this to have happened.

Agree with britsimon's post above - if you are sure everything was filled in correctly it seems very odd - usually all that happens when family members don't accompany is that they don't get visas. The important thing is to have them listed on the application. I also wonder about AP, as "not wanting kids to come later" does not sound like a valid reason for outright denial. If they were not listed on the application form then that would be reason though.

Out of interest, which embassy was this?

 

[bluecheese]

yes it is harsh... i feel so frustratred!

1. You say you are legally separated. That means a court has recognized the separation - did that happen? If so, did that happen before the original eDV entry or when you submitted your forms? Did you list your status accurately at the time of entry and submission? If you were actually married and you entered separated when you were not separated that is a problem. Making a mistake with any of that that is grounds for denial.

I do have a court decree saying that we are legally separated. I must admit I do not remember what I filled online at the very beginning of the process, but I have my future ex-wife and kids on the DS 230. I had this document reviewed to make sure it was ok.

2. Regardless of the custody situation you should have listed all your children on your eDV and your 122/230 forms. Not doing that is grounds for denial.

They are.

3. Did you complete 230 forms for your children as if they were going to the USA (or marked as to follow?)

No. I have no legal rights, as of now, to bring them to the US.

4. When you emailed in January did they answer? What did they reply?

They replied: "Your children do not need to attend the interview if they are not applying in the same time as you."

5. What embassy is this?

Paris.

6. Are you quite sure you have been denied - not placed on AP? What was said about providing you the section of the law?

What is AP?

The consul office clearly told me to play again next year. He was nice.

Essentially no there is no process for appeal if you are doing CP (outside of the USA). However, depending on your answers to the above it may be worth talking with a lawyer who is known to the embassy or finding some other way to contact senior officials at the embassy. If you are sure you have not made a mistake on the forms then you might be able to do something...

What is doing CP?

 

[bluecheese]

andsocy was

The interview letter does say all family members for whom you want visas need to come with you, but your situation is slightly different and it must be highly frustrating for this to have happened.

Agree with britsimon's post above - if you are sure everything was filled in correctly it seems very odd - usually all that happens when family members don't accompany is that they don't get visas. The important thing is to have them listed on the application. I also wonder about AP, as "not wanting kids to come later" does not sound like a valid reason for outright denial. If they were not listed on the application form then that would be reason though.

Out of interest, which embassy was this?

Specially as I asked about kids BEFORE hand, to make sure this would be taken care of. I would have brought the kids with me (missing 2 days of school by the way) but probably worth it...

It was in Paris. I live 500km (350mi) from there, so I cannot really go back every day ...

 

[Britsimon]

yes it is harsh... i feel so frustratred!



I do have a court decree saying that we are legally separated. I must admit I do not remember what I filled online at the very beginning of the process, but I have my future ex-wife and kids on the DS 230. I had this document reviewed to make sure it was ok.



They are.



No. I have no legal rights, as of now, to bring them to the US.



They replied: "Your children do not need to attend the interview if they are not applying in the same time as you."



Paris.




What is AP?

The consul office clearly told me to play again next year. He was nice.



What is doing CP?

Specially as I asked about kids BEFORE hand, to make sure this would be taken care of. I would have brought the kids with me (missing 2 days of school by the way) but probably worth it...

It was in Paris. I live 500km (250mi) from there, so I cannot really go back every day ...

The kids did not need to attend the interview - that is not correct. The response you got by email in January was correct.

AP is administrative processing. Instead of an approval or denial they can put you on AP while they check validity of documents or you provide something that was missing. If the CO didn't know what to do, that is what he should have done.

CP is consular processing - i.e. processing your visa at an embassy or consulate outside of America. If you were in the USA on a temporary visa then adjustment of status (aos) is possible and with aos you have rights of appeal.

The legal marital status is the only thing you have mentioned that might be a problem. Your marital status has to be accurately described. So if you were legally separated you must say that and not married. However, the CO should have used that as the basis for denial if that was what was the issue.

I think they have screwed up. As I said - officially the decision a CO makes is final - but you might want to contact the embassy in whatever way you can (with or without a lawyer) and ask them to look into why your case was denied because you feel a terrible and unfair mistake has been made - with no basis in law for the refusal. To be honest I half expect them to contact you because if the CO is trying to find the section of law to inform you (which is unusual in itself) he isn't going to find it and presumably some more experienced CO will tell him he screwed up.

 

[SusieQQQ]

Agree it seems odd. I wondered if not submitting DS230s for the children may have been the problem, but I've just checked the website and it's clear DS230s only need to be submitted for family members that are applying for visas. I would agree on trying to follow up.

 

[Britsimon]

Agree it seems odd. I wondered if not submitting DS230s for the children may have been the problem, but I've just checked the website and it's clear DS230s only need to be submitted for family members that are applying for visas. I would agree on trying to follow up.

Exactly - he did everything right as far as what he has said! Frustrating is putting it mildly.

 

[twolf]

Check it on CEAC

Hi bluecheese,

Check your case here: https://ceac.state.gov/CEACStatTracker/Status.aspx

enter your case number as "2014EU12345" (no leading zeros).

 

[c1984]

I'm guessing the problem is that the OP may have implied to the officer (or s/he got the impression some way) that the children will apply for GC at a later time. The OP would be better off by saying that the kids will not seek a GC at all.

 

[bluecheese]

Hey twolf,

2014EU1xxxx 01 PRS Refused
2014EU1xxxx 02 PRS Ready
2014EU1xxxx 03 PRS Ready

No reason given they say "Please see the letter you received at your interview for more information" which i never got...

 

[bluecheese]

https://www.dvlottery.state.gov/ESC/

still invites me to go to the embassy... i don't know if this will be updated...

 

[bluecheese]

I'm guessing the problem is that the OP may have implied to the officer (or s/he got the impression some way) that the children will apply for GC at a later time. The OP would be better off by saying that the kids will not seek a GC at all.

I am not planning to bring the kids over. I legally can't. My divorce is taking ages and even if I get full custody, it might not grant me the right to bring them to the US. So, as I live this personal mess with the help of close relatives to take care of the kids when I am not with them, there was no issue with any of them to help me while I solve this mess in France while I get fresh in the US. i am not saying it is easy to solve, but it is solvable and in any way a gov agent can, by looking at my file 5 minutes, saying whether I am doing the right things for my kids or not.

I guess I'll have to wait for an official explanation... but i looked at

212(a)(1)(A)(i) Communicable Disease
212(a)(1)(A)(ii) Immigrant lacking required vaccinations
212(a)(1)(A)(iii) Physical or mental disorder
212(a)(1)(A)(iv) Drug Abuser or Addict
212(a)(2)(A)(i)(I) Crime Involving Moral Turpitude
212(a)(2)(A)(i)(II) Controlled Substance Violators
212(a)(2)(B) Multiple Criminal Convictions
212(a)(2)(C)(i) Illicit Trafficker in Any Controlled Substance
212(a)(2)(C)(ii) Spouse, Son, or Daughter Who Benefited from Illicit Activities of Trafficker
212(a)(2)(D)(i) Prostitution (within 10 years)
212(a)(2)(D)(ii) Procuring (within 10 years)
212(a)(2)(D)(iii) Unlawful Commercialized Vice
212(a)(2)(E) Asserted immunity to avoid prosecution
212(a)(2)(G) Foreign government officials who have engaged in violations of religious freedom
212(a)(2)(H) Significant traffickers in persons
212(a)(2)(I) Money Laundering
212(a)(3)(A)(i) Espionage,sabotage, technology transfer, etc
212(a)(3)(A)(ii) Other Unlawful Activity
212(a)(3)(A)(iii) Act to Overthrow U.S. Government
212(a)(3)(B) Terrorist Activities
212(a)(3)(C) Foreign Policy
212(a)(3)(D) Immigrant Membership in Totalitarian Party
212(a)(3)(E)(i) Participants in Nazi Persecutions
212(a)(3)(E)(ii) Participants in Genocide
212(a)(3)(E)(iii) Commission of Acts of Torture or Extrajudicial Killings
212(a)(3)(F) Association with Terrorist Organizations
212(a)(3)(G) Recruitment of Use of Child Soldiers
212(a)(4) Public Charge
212(a)(5)(A) Labor Certification (immigrants only)
212(a)(5)(B) Unqualified Physician (immigrants only)
212(a)(5)(C) Uncertified foreign health-care workers
212(a)(6)(B) Failure to attend removal proceedings
212(a)(6)(C)(i) Misrepresentation
212(a)(6)(C)(ii) Falsely claiming citizenship
212(a)(6)(E) Smugglers
212(a)(6)(F) Subject of civil penalty (under INA 274C)
212(a)(6)(G) Student visa abusers
212(a)(7)(B) Documentation requirement for nonimmigrants
212(a)(8)(A) Immigrant permanently ineligible for citizenship
212(a)(8)(B) Draft evader
212(a)(9)(A)(i) Ordered removed upon arrival

and I don't see me in any of those categories (my children are NOT soldiers if i can have a little humor)!

 

[Sm1smom]

I'm guessing the problem is that the OP may have implied to the officer (or s/he got the impression some way) that the children will apply for GC at a later time. The OP would be better off by saying that the kids will not seek a GC at all.

+1

Also what was the OP's marital status at the time of the eDV application?

OP says:

I must admit I do not remember what I filled online at the very beginning of the process, but I have my future ex-wife and kids on the DS 230

This may actually be the basis of the denial itself. If the kids were never listed on the eDV application, it doesn't matter whether they were subesquently listed on the DS-230 form or not.

Exactly my thoughts too. Since the OP has no legal custody of the kids yet, he shoulddn't have indicated

 

[SusieQQQ]

I'm guessing the problem is that the OP may have implied to the officer (or s/he got the impression some way) that the children will apply for GC at a later time. The OP would be better off by saying that the kids will not seek a GC at all.

+1

Also what was the OP's marital status at the time of the eDV application?

OP says:



This may actually be the basis of the denial itself. If the kids were never listed on the eDV application, it doesn't matter whether they were subesquently listed on the DS-230 form or not.

Exactly my thoughts too. Since the OP has no legal custody of the kids yet, he shoulddn't have indicated

I disagree with these posts. The OP said he had the children on his application - which was correct, irrespective of whether or not they would go with. If he had left them off yes refusal - but he says they were on. There is no problem with wanting the kids to come over at a later stage, as long as DoS is aware that the children exist. I have read a few cases like this. Moreover, I personally know someone in exactly this situation, doesn't have custody of his kids, they were listed on his application, (he is hoping when they are old enough to decide for themselves they will go ); his kids did not go to the interview, but he, his second wife and stepchildren all got visas no problem. I was at the consulate the same time they were doing their interview ...and as many of you will know you can often overhear what is said at others interviews...

However: I think I may see the problem, and it's nothing to do with saying he wants his kids to join him later. There are three cases - principal and two derivatives - listed by the OP in post 6. As he was not divorced at the time of the application, there should have been 3 - not 2 - dependents listed. It looks like he listed his kids but not his wife, and as he was not divorced his wife should have been on the form.

And no, the interview letter will not change. Once KCC sends your file to the embassy they have nothing more to do with the process.

 

[Sm1smom]

I disagree with these posts. The OP said he had the children on his application - which was correct, irrespective of whether or not they would go with. If he had left them off yes refusal - but he says they were on. There is no problem with wanting the kids to come over at a later stage, as long as DoS is aware that the children exist. I have read a few cases like this. Moreover, I personally know someone in exactly this situation, doesn't have custody of his kids, they were listed on his application, (he is hoping when they are old enough to decide for themselves they will go ); his kids did not go to the interview, but he, his second wife and stepchildren all got visas no problem. I was at the consulate the same time they were doing their interview ...and as many of you will know you can often overhear what is said at others interviews...

A little bit of clarification is required with regards to my previous post.

I just re-read the portion of the OP's post which I quoted and I realize that reasponse was to his marital status at the time of the eDV application, not about the kids being listed.

Having said that, I am entirely aware that DV applicants are required to list ALL of their none US or LPR children on their application, including those who will not be migrating with them as at the time the applicant will be, and that attending the interview without those family members usually does not lead to a disqualification or denial.

However, a general rule of thumb to anyone facing the CO, be it for an IV or a NIV, is less is more. Never provide unsolicited information at the time of the interview. If you don't have legal custody of your kids, you can't be telling the CO you hope to file for the kids after getting to the US, even if the kids are listed on your form. Now, I'm not saying this is exactly what the OP did, I'm simply using it to explain why a CO could deny an application in such a scenario.

 

[bluecheese]

And no, the interview letter will not change. Once KCC sends your file to the embassy they have nothing more to do with the process.

will I get a letter or an official reason?

 

[bluecheese]

However, a general rule of thumb to anyone facing the CO, be it for an IV or a NIV, is less is more. Never provide unsolicited information at the time of the interview. If you don't have legal custody of your kids, you can't be telling the CO you hope to file for the kids after getting to the US, even if the kids are listed on your form. Now, I'm not saying this is exactly what the OP did, I'm simply using it to explain why a CO could deny an application in such a scenario.

I agree with the rule of thumb... I did not tell the CO that I planed that, nor that I did not have full custody. I dd not even have time to. I also know that I will never have time to be an immigrant before sep 30th with the kids.

 

[SusieQQQ]

will I get a letter or an official reason?

Sorry, I don't know. But having seen your post 6, I think you left someone off the application form, presumably your wife, and that is immediate grounds for disqualification of your entry.

 

[SusieQQQ]

A little bit of clarification is required with regards to my previous post.

I just re-read the portion of the OP's post which I quoted and I realize that reasponse was to his marital status at the time of the eDV application, not about the kids being listed.

Having said that, I am entirely aware that DV applicants are required to list ALL of their none US or LPR children on their application, including those who will not be migrating with them as at the time the applicant will be, and that attending the interview without those family members usually does not lead to a disqualification or denial.

However, a general rule of thumb to anyone facing the CO, be it for an IV or a NIV, is less is more. Never provide unsolicited information at the time of the interview. If you don't have legal custody of your kids, you can't be telling the CO you hope to file for the kids after getting to the US, even if the kids are listed on your form. Now, I'm not saying this is exactly what the OP did, I'm simply using it to explain why a CO could deny an application in such a scenario.

I still don't understand on what grounds this would lead to denial?