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ResourcesVisa & Immigration LawVisa NewsHow Will the New USCIS Policy on RFEs Impact the K-1 Visa Process?

How Will the New USCIS Policy on RFEs Impact the K-1 Visa Process?

Transcript of the above video:

As the title of this video suggests we are discussing the K-1 Visa, specifically in the context of a recent memorandum issued by United States Citizenship and Immigration Service with respect to so-called Request for Evidence.

There is another video; it is quite long that is also on this channel. We go into pretty good depth about the dynamics of how this new memo is probably going to play out; specifically the policy of the rescission of the “No Possibility” Doctrine. For those who are watching this video and don't really understand what I'm talking about in depth. I really do urge you to go check out that other video. I going to ride the great detail with respect to this memorandum here issued by USCIS and I'm not going to go back through all of the sort of minutiae of this thing, but suffice it to say, what we are looking at under the new memorandum from USCIS is this. There is a effectively not really going to be Request for Evidence issued as frequently in cases that are adjudicated by USCIS in the future. I have been thinking about this for a couple of days now before making these videos and one of the things I think is there is going to be a strong possibility, because I think this will have a rather substantial impact on the processing of fiancée visas. The reason for this is specifically the matter: in the past it was somewhat counterintuitive and I still think it is still counterintuitive. The K-1s process faster and people sort of wondered why and it was really sort of an Administrative quirk that did that and the reason that people thought it was kind of strange is because, at least in a lay persons perspective, perhaps not at a legal level because there are certain standards that the K-1 actually meets with respect to them being treated much the same way as a marriage visa. People kind of said to themselves in their head I think, “It’s a fiancée visa, it is not a marriage visa. I haven't gotten married yet so maybe that requirement isn’t quite met” From a legal standard standpoint, as long as there is bona fide intention to marry, K-1s are effectively from a legal standpoint treated much the same way as an immigrant spouse visa, K-3.

Moving aside from that, what are we getting at with respect to this video? Well, now with this issuance of this “No Possibility” the rescission, of the “no possibility” Doctrine from the prior Policy Memorandum, we are going to see less RFEs probably issued than in the past and more denials where the petitioner failed to prove eligibility and in a K-1 case, one of the issues regarding eligibility are things like the meeting requirement; they are a little bit more intangible than just legal marriage under marriage visa cases. The meeting requirement is a really important one with respect to the K-1 and now that there is no longer going to be RFEs issued, or I am going to go ahead and assume that they're basically just not going to issues RFEs as frequently as they have in the past.  There is nothing in the Policy Memorandum that says they might not continue issuing RFES as they always have done but I don't think that they would issue a policy memorandum if they didn't have some idea for a major change in mind.  

So again with the eligibility requirements, again the meeting requirement in the K-1,  I often have in the past gotten RFEs issued and one can argue that failure to prove that issue up in the initial filing of the petition was basically sufficient to go ahead and say that they are on their face ineligible because they can't prove that they have met in person at least once in the two years prior to the filing of  the underlying K-1 petition so I think this new policy memorandum is probably going to have a pretty significant impact on the K-1 fiancée visa cases especially those sort of borderline cases where it is not quite clear to the adjudicator that the couple has in fact met in person in the two years prior to the filing of the case.

What does this mean as a practical matter to the viewer of this video? It is probably not a bad idea to hire legal profession, candidly. Those who are used to these cases understand how they work, have dealt with the forms, have dealt with the underlying evidence, understand exactly what USCIS adjudicators are looking for and the eligibility requirements in detail. Having that kind of expertise on side when filing these kind of petitions is probably going to be pretty pivotal on cases  moving forward because I don't think it is pretty wise to go ahead and assume, “Oh, if there is some deficiency, I will just get an RFE and deal with it.”, That is probably not going to happen. I think moving forward we will see more denials and I can definitely see circumstances in which K-1s are going to be denied maybe a little bit more than marriage visas cases and for no other reason than you have got the meeting requirement rather than “cut and dried”, “hard and fast” concrete marriage involved which is the differentiation between those two kinds of cases and a differentiation that could result in more denials now that we have seen this policy change from USCIS.