Mis-representation means that an applicant tried to hide a fact that would make her ineligible for a visa. If the Consulate doubts the relationship, they say there is mis-representation. What reason do they give for mis-representation? They usually say the applicant could not answer questions about the sponsor’s life in the US. Yes, the applicant may lack some knowledge about the sponsor’s, but this is certainly not mis-representation. It is just the way the Consulate denies a case when there is no evidence to support a denial.
After a case has been denied, the Consulate sends the petition back to CIS in the US for review and possible revocation. Then it is up to the sponsor to prove to CIS that the Consulate was wrong and that there was no mis-representation. If the sponsor is not successful in rebutting the decision of the Consulate, then the applicant’s file is permanently marked as “material mis-representation”.
In a Fiancée case, the sponsor might decide to file a new Fiancée petition or the couple decide to get married and the sponsor files a spouse petition. If the new petition is approved by CIS, when the applicant goes for the second interview, she is again denied, because of the “mis-representation” attached to the first petition. The Consulate advises her to file an I-601 Waiver Request with CIS in the US. The problem is that CIS rarely approves I-601 Waver Requests.
It is also possible that CIS in the US will deny a new petition if the first petition
has already been revoked because of “mis-representation”. It is almost impossible to convince CIS that there was never any mis-representation.
Ten years ago, we started making a list of the reasons why cases were denied and in our radio shows we stressed how important it is for the spouse or fiancée in Vietnam to have a very thorough knowledge of the petitioner and his life in the US. From our clients’ cases, we gave examples of questions that the Consulate asks. These were questions that could only be answered by an applicant who was already living in the US with the sponsor, so of course they could not be answered by an applicant who had never been to the US.
If the Consulate returns the petition to CIS in the States, CIS will send the sponsor a Notice of Intent to Revoke and they will repeat the reasons why the Consulate returned the petition. None of the reasons are mis-representations, but CIS only knows what the Consulate says when they return the petition. It is up to the sponsor to rebut the CIS Intent to Revoke.
An important point is that when CIS receives a petition back from the Consulate, they assume that the Consulate is denying the case because of material reasons, and that means reasons that CIS did not know about when the petition was approved. So, CIS thinks that the Consulate had good reasons for denying the case, when in fact there were no reasons that would have prevented CIS from approving the petition.
Consulates are not supposed to deny applications for reasons that were available to CIS when the petition was approved. For example, if there was a big age difference between applicant and sponsor, CIS already knew about this when they approved the petition. So, the Consulate does not have the right to return the petition to CIS because of the age difference.
When the Consulate returns the petition to CIS, they include a cover letter to show that the applicant did not know enough about the sponsor, or that the relationship did not meet certain cultural norms. Again, these are not good enough reasons for saying that the applicant was guilty of mis-representation.
For example, the Consulate says the applicant could not describe the city where the sponsor lives, could not give the names of the sponsor’s friends, did not know the name of the sponsor’s boss, the couple had only a small engagement or wedding party, or the couple were engaged or married shortly after they met for the first time, or the Fiancée Applicant was unable to provide basic facts regarding the planned marriage in the US.
None of these things can be considered mis-representation, but mis-representation is the reason that the Consulate gives for denying the visa.
If a Fiancée petition is returned to CIS, it will take CIS a long time to contact the sponsor with Intent to Revoke. The sponsor may be tempted to abandon the Fiancée Petition and decide to get married and file a spouse petition. But, if CIS revokes the Fiancée Petition, then “mis-representation” will go on the applicant’s record. So, it is never a good idea to disregard a Notice of Intent to Revoke for the first petition even if the couple intends to file a new petition.
The Consulate has told us that they will process a new fiancée petition or a new spouse petition, but if the first petition is revoked by CIS, then the Consulate will not approve the applicant at a second interview. They will tell the applicant that she must file an I-601 Waiver request.
Q .1. Is there any way to avoid a denial based on mis-representation?
A.1. There is no sure way, but it might help if the petition includes a timeline of the relationship and also tells CIS if there are any potential reasons for denial by the Consulate. In that way, the Consulate cannot claim that CIS approved the petition without knowing all the facts. Tell CIS what things your spouse or fiancée would not reasonably be expected to know about your life in the US, and what things the Consulate could use to deny the visa.
Q.2. If the Consulate denies a case and says the applicant should file an I-601 with CIS, what does that involve?
A.2. The I-601 must show how it would be an extreme hardship for the sponsor to remain in the US without the applicant, or how it would be an extreme hardship for the sponsor to relocate to Vietnam to live with the applicant.
Q.3. If the Consulate returns a petition to CIS in the US, how long will it take CIS to contact the sponsor?
A.3. It could be six months to a year. It is up to the sponsor to check with the Consulate to see when the petition was returned to the US, and to check with CIS to rebut the decision of the Consulate.