A lawsuit has been filed in the U.S. District Court in Portland challenging processing of K-1 (fiancee) visas by U.S Citizenship and Immigration Services (USCIS) and the Department of State (DOS). The complaint in Tran v. Napolitano attacks the handling of cases returned by DOS to USCIS for revocation on the basis that the relationship is a sham in that the couple don’t really intend to live as husband and wife.
This suit is a class action, meaning that the plaintiff has asked the court to give relief to all similarly situated plaintiffs.
Read on to see if you may fall within the class and how the lawsuit may affect your rights.
BACKGROUND
Here’s how the K-1 visa process works in brief. First, the U.S. citizen files a petition with USCIS. The requirements for filing a petition include that the couple have met in person within two years of the filing of the petition and intend to enter into a real marriage within 90 days of the fiancee’s arrival in the U.S.
DOS forwards the approved K-1 petition to a U.S. Consulate abroad, where the fiancee applies for a K-1 visa and is interviewed.
The approved K-1 petition is valid for 4 months, although consular officers have the discretion to extend that period. Per a congressional mandate, it is DOS policy to process K-1 visa applications within 30 days of receipt of all necessary documents from the applicant and the USCIS. But in practice DOS often disregards this policy.
If the visa is approved, the fiancée must enter the U.S. within the validity of the visa (which is usually 6 months). Then, the couple must marry and the fiancee must apply to USCIS for adjustment to lawful permanent resident (i.e., green card) status within 90 days of entry.
But if it appears to the consular officer that the fiancee is not eligible to receive a visa, then consular officer must refuse to issue the visa. Following a visa refusal, DOS policy is to return the K-1 petition with a recommendation for revocation to the State Department’s National Visa Center (NVC). Additionally, when returning a petition to USCIS, DOS places a marker called a P6C1 marker, or “quasi-refusal” in an applicant’s record as a reminder that if USCIS revokes the petition on the basis that the relationship is a sham then the fiancee is permanently inadmissible to the U.S. on the basis of the misrepresentation.
According to the complaint, following receipt of the returned K-1 petition, the NVC forwards all K-1 petitions to the USCIS California Service Center. (I personally am not aware of this practice. It was my understanding that NVC forwards the petitions to either the California Service Center or the Vermont Service Center, whichever approved the petition originally.)
USCIS often delays action on returned K-1 petitions for 6 months to 1 year or more. In fact, according to the complaint, the California Service Center takes no action at all. (The California Service Center notifies the petitioner that no action will be taken because the petition’s 4-month validity has expired.)
REMEDIES SOUGHT BY THE COMPLAINT
The complaint asks the court to order DOS and USCIS to act more quickly throughout the K-1 process. There is some statutory authority. The statute says that it shall be DOS policy to adjudicate a visa application within 30 days of receipt of all necessary documents from USCIS and the applicant. But this statute seems to apply only to the time period between the interview (when the applicant submits his documents) and the DOS decision.
The complaint also asks the court to void the USCIS regulation purporting to limit the validity of a K-1 petition to 4 months, on the basis that USCIS lacks congressional authority to promulgate such a regulation.
And the complaint asks the court to order DOS to take the following steps:
1. If the K-1 visa application is denied, provide a written notice of the factual and legal basis for the denial that is not “conclusive, speculative, equivocal or irrelevant.” (In the lead plaintiff’s case, DOS apparently issued a detailed notice of the factual grounds for denial, although the complaint attacks that notice as speculative and irrelevant. In my experience, sometimes the Consulate provides no statement of the factual basis for the refusal).
2. Allow submission of rebuttal evidence before the petition is returned to USCIS. (DOS policy memos appear to require consular officers to provide this opportunity, but in practice the Consulates often don’t provide this opportunity, and the Chief of the Advisory Opinions Division at the DOS Visa Office recently told me he believes this is “discretionary”).
3. Return petitions to USCIS only where substantial evidence exists that fraud, misrepresentation, or ineligibility would lead to denial, and not where it is merely suspected. (This is the real heart of the case. While some K-1 visa applications are fraudulent, the majority are real. Some consular officers seem to prefer to dump questionable cases by returning them to DOS rather than investigating to determine if there really is fraud. DOS currently advises consular officers to follow the standard of returning cases to USCIS only if there is substantial evidence of fraud, but that guidance is often ignored. As a separate matter, there is at least a good argument that USCIS lacks authority to revoke K-1 petitions. Unlike other types of visas, there is no regulatory authority for revocation of K-1s. If USCIS does lack this authority, perhaps the complaint should seek a court order forbidding DOS from returning any petitions to USCIS for purposes of revocation).
4. Not classify the applicant as inadmissibile for misrepresentation solely because USCIS revokes the petition. (This remedy seems to be unnecessary to the extent that USCIS practice is not to revoke the petition but instead to take no action).
ARE YOU A POTENTIAL CLASS MEMBER?
The proposed class would include all citizens who filed a K-1 petition that was approved by USCIS buy whose fiancee was not issued a K-1 visa due to DOS returning the petition to USCIS for review and revocation, termination, or denial.
It’s possible that this litigation may result in changes making K-1 consular processing more streamlined and more procedurally fair.
Of course, it’s still early in the lawsuit. It remains to see if the court will certify that class, allowing the class action to move forward. If so, litigation can still take years, and any district court order may be appealed.
Moreover, the doctrine of “consular nonreviewability†may lead to dismissal of many or all of the claims against DOS. Under this doctrine, the decisions made by consular officers to reject visas are not subject to judicial review. In other words, a person denied a visa cannot appeal to a court, even if the denial was based on a consular officer’s mistake of fact or a misunderstanding of the law, or even if the officer acted capriciously, arbitrarily, or maliciously. There have been a few cases that have avoided dismissal for consular nonreviewability. One such case is Patel v. Reno (9th Cir.1997), in which the United States Consulate in Bombay, India had failed to resolve certain pending immigrant visa applications for eight years. The Ninth Circuit held that where a suit challenges the authority of a consular officer to take or fail to take a nondiscretionary action granting or denying a visa, the court can grant mandamus relief and force the consulate to issue a decision (though importantly, in issuing the writ, the court may not direct the agency how to act). Especially if it can be argued that USCIS lacks authority to revoke K-1 petitions, it’s possible that the court would hold that the consular officer’s return of petitions to USCIS may amount to a refusal to adjudicate the visa application, which the court can address.
While this litigation is pending, many persons whose K-1 petitions are denied decide to marry and file a Form I-130, Petition for Alien Relative. In that event, this litigation may not provide any remedy because reconsideration of the denied K-1 visa application isn’t possible if the applicant is no longer a fiancee.
For now, we recommend that potential class members seek legal advice about what impact the litigation may have on their cases.
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