USC's parent for CP. Previous COS denial and out of status. Please advise.

Z

zerogravity

Registered Users (C)
I became a USC last year and recently got my father's I-130 approved for Consular Processing. The case is now being processed at NVC. I'm a little concerned about the US consulate denying him a visa for the following:

My father has a 10 year multiple entry B2 (visitor) visa, and has visited me 3 times in the past. On his 3rd trip to the US, in 2008, he applied for change of status...from B2 to R1 (temp religous worker). The application was filed in advance of his I-94 expiration, and was sponsored by a local religious organization, through a lawyer, of course.

It took USCIS almost a year (~11 months) to make a decision on his case and they denied the COS. Reason given was that the organization that sponsored him did not meet the required criteria. (The immigration attorney that filed his I-129 COS should have known better about the requirements and informed us about it, but he did not).

Anyways, as soon as we got the notification (from the lawyer via email along with the copy of letter from USCIS) that the case had been denied, my father voluntarily left the US the VERY NEXT DAY.

It's been over a year since he left the US and in a few months should be getting an interview at the US consulate for his immigrant visa.

As I understand, my father was in a "authorized period of stay" while his COS application was pending, and became "out of status" after USCIS made the decision. So he was out of status for maybe a week or so (from the date on the denial letter -- the attorney received it via regular mail and then notified us via email -- until my dad left US). My father was never ever employed in the US.

My questions are...

1. Will his COS denial and his 11 month stay in the US while his application was pending cause any problems?
2. Can they deny him a immigrant visa for it?
3. Do we need to take any steps in advance of his interview that could help? Like send extra documentation (related to denied COS application) with DS-230 to NVC that would help the consulate make a proper decision?
4. Should we seek help from an attorney? Can a attorney help with CP cases?

Thanks in advance for your help!
 
zerogravity said:
1. Will his COS denial and his 11 month stay in the US while his application was pending cause any problems?
Click to expand...

Only a week? No.

[quote[2. Can they deny him a immigrant visa for it? [/quote]

No.

3. Do we need to take any steps in advance of his interview that could help? Like send extra documentation (related to denied COS application) with DS-230 to NVC that would help the consulate make a proper decision?
Click to expand...

Doubtful. He should be clear about any facts of the case if asked.
 
TheRealCanadian, thank you!

Yes, my father departed from US the very next day after we got the USCIS's decision in email from the attorney....9 days from the date on USCIS's letter, to be precise. So it's good to know that that won't be a problem.

Just curious...is there an appeal process at the consulates in case they don't rule favorably? How does that work, or where can I find more info about it?

Thanks!
 
Since it was denied, he was accruing illegal presence from the expiration of his I-94. He will incur the 3/10 year ban if it exceeded 180 days.
 
It was not a frivolous application and it was also not denied by USCIS as being frivolous. The denial letter stated that the sponsoring organization did not meet certain criteria (something related to organization's filing classification). Like I said earlier, the attorney who filed the application should have known better and informed us that that would be a problem. Had he done that we would have never taken the risk to proceed with the filing.

So let me ask this...

1. What would constitute a frivolous application?
2. Can the consulate make that determination on their own?
3. Would we have a chance to appeal and fight that decision?
4. Is there anything we can do now (while the file is still with NVC...just got there) to help our case before it gets to the consulate?
5. Can a lawyer help?

Thanks!
 
VisaNutz, thanks for those links. I had read those (on different sites though) earlier and that's why I'm pretty sure that my father's stay beyond I-94 expiration, while his COS app was pending, was a "period of authorized stay" and would not count towards unlawful presence. I believe he meets all the required criteria...

1. Application was timely filed (ie, before expiration of I-94).
2. It was non-frivolous.
3. Did not work without authorization (never worked in US).

TheRealCanadian confirmed that the out of status period of little over a week (after the COS decision was made) would be no problem. But he also responded to a later post with, "Only if it was denied on the basis of being a frivolous application." As I mentioned before, USCIS did not deny the COS application as being frivolous. In all honesty, it was not filed as such. I do not know what constitutes a frivolous application. That's why I had asked some follow-up questions in case somebody knows the answer.

This "frivolous" thing now concerns me. When USCIS denies applications do they explicitly state the reason as frivolous whenever they find that to be the case? I hope so, because they are the ones who scrutinize all the details of the application. It can't be good if it's left open for interpretations.

However, it seems it would all be in the hands of the US consulate, specifically the officer there who handles the case or conducts the interview to make that determination. We certainly don't want them to call it frivolous. I can only hope they make the right judgment. That's why I had asked if there is anything we could/should do....like provide any COS app documentation etc. to NVC....to help them make the right call. I do understand that my father will have to be well-prepared to answer all their questions.

Also, if for some reason they do not rule favorably, what would be our options for appeal and such? I know I should worry about this later. Gosh, it would suck.

Thanks very much!
 
zerogravity said:
As I mentioned before, USCIS did not deny the COS application as being frivolous. In all honesty, it was not filed as such. I do not know what constitutes a frivolous application.
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If USCIS did not make such a determination, I think you will be fine.

However, it seems it would all be in the hands of the US consulate, specifically the officer there who handles the case or conducts the interview to make that determination. We certainly don't want them to call it frivolous.
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A consular official typically would not make such a determination about a USCIS petition, afaik, but I suppose it's within the realm of possibility.

Also, if for some reason they do not rule favorably, what would be our options for appeal and such? I know I should worry about this later. Gosh, it would suck.
Click to expand...

The challenge with consular processing is that you cannot appeal decisions of fact, only decisions of law.

But either way, your father is outside the US already. If he is subject to the 3/10-year bar, it's too late to do anything.
 
TheRealCanadian, thanks again for your response.

Given all the facts of the case and the applicable laws, I do expect the consulate to issue a visa. But you just never know. I'm so paranoid!

Sometimes I feel the US immigration law is harsh on those who follow the rules than on those who play the system.
http://www.cis.org/EvaluatingIIRAIRA
".......Because the 3/10-year bar applies only to those aliens who leave the United States after a period of unlawful presence, it provides a powerful incentive for illegal aliens who intend to apply for a green card to remain illegally and cut in line, instead of applying in the customary way from abroad."
 
His overstay period started from the day his original B-2 based I-94 expired, not when his COS was adjudicated. How long was that period?

zerogravity said:
It took USCIS almost a year (~11 months) to make a decision on his case and they denied the COS. Anyways, as soon as we got the notification (from the lawyer via email along with the copy of letter from USCIS) that the case had been denied, my father voluntarily left the US the VERY NEXT DAY.
Click to expand...
 
Triple Citizen, I think you are wrong. I have gone through several credible websites, including those that show actual INS/USCIS memos that talk about presence in the US while COS/EOS is pending, and all confirm that one is in "authorized period of stay" while EOS/COS is pending provided certain conditions are met.

Here is a very recent (12/28/2009) Department of State article that clearly explains it (thanks to VisaNutz)...

http://www.state.gov/documents/organization/87120.pdf

"DHS has interpreted "period of stay authorized by the Secretary of
Homeland Security" to include:
(1) .....
(2) .....
(3) .....
(4) For aliens who have applied for extension of stay or change of
nonimmigrant classification and who have remained in the United
States after expiration of the Form I-94 while awaiting DHS's
decision, the entire period of the pendency of the application,
provided either:
(a) That the application was subsequently approved; or
(b) If the application was denied or the alien departed while the
application was still pending, that the application was timely
filed and nonfrivolous, and the alien did not work without
authorization prior to or during the pendency of the
application. (See 9 FAM 40.92 N5 below.)"


Some more links that discuss USCIS memos about *not* accruing unlawful presence while EOS/COS is pending....

http://www.immigrationlinks.com/news/news310.htm
http://www.callyourlawyers.com/nafta.html
http://www2.gtlaw.com/practices/immigration/newsletter/archives/014/item02.htm
 
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Just wanted to provide an update on our case so that someone in a similar situation could benefit.

My father's consulate interview was a success and he received an immigrant visa. The CO did ask to see the R1 visa filing and the final decision letter to verify that the extended stay in the US was authorized. The interview was short and cordial.

Not very long ago, I was concerned about our case and so I had consulted a couple of well known immigration attorneys to see if we needed legal representation. Remember this was a Consular Processsing (CP) case. The first attorney was more than happy to take on our case and "fight" for us. Talking to them had me really worried because, I think, they used some scare tactics. The second attorney I spoke to was Mr. Rajiv Khanna, who said the he was more than happy to take our money but that we really didn't need any legal representation. He thought the case was pretty straight forward and if we ran into any trouble then we could always hire his services at that time. That was such a relief!

Mr. Rajiv Khanna is a very honest and sharp attorney (just listen to his free conf calls. btw, what a great community service that is.). I would strongly recommend him to anyone looking for legal representation.

Last, but not the least, many thanks to TheRealCanadian, VisaNutz and others who contributed to this thread. These guys go out of their way to help others. Thank you!!
 
Congrats to your father. However, make sure he brings my naan bread when he comes here permanently, I demand this bread!
 
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