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Chances of Success After Embassy Sends Case Back to USCIS

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What are my chances of success after the embassy sends the petition back? Hi, I'm Jim Hacking, immigration lawyer, practicing law throughout the United States at our offices in St. Louis, Missouri, and San Diego, California. In today's video, we're going to talk about the situation when the embassy doesn't like a spouse-based case, and they send it back to USCIS for possible revocation or cancellation or nullification. The word is revocation, but what it means is to cancel the case. And this does happen from time to time. So the way that the cases normally go is, you file your application, your I-130 for a spouse or I-129F for a fiancé, you send it in to USCIS, and it processes there for months and months, then it gets approved.

Then it gets sent to the National Visa Center. If it's an I-130, you'll be there for a few months. If it's an I-129F, you're there just sort of quickly to pay your fees, and then the case gets sent to the embassy. And when it gets to the embassy, the consular official determines that there's something about the case that they don't like. They don't believe the marriage. And so they might sit on for a while in administrative processing, but eventually they might issue a notice that the case is being sent back to USCIS for possible revocation. And once the case gets to USCIS, the petitioner and the beneficiary have the chance to rebut or to overcome the possible revocation. And you do that by submitting more marital evidence. You have to basically reprove the marriage. You have to show that the marriage is ongoing, that the marriage is legitimate, and then the case would then go back to the embassy.

Now, this is actually really not a fun thing when this happens, because there's no timeline on when the embassy has to send the petition back to USCIS. There's no timeline on when the USCIS has to issue the notice of intent to revoke. And once you submit your reply, there is no timeline as to when the embassy has to re-adjudicate the visa. So, you're talking adding at least six months, if not a year to your application, when it gets sent back for possible revocation. So, even if you win the second time at USCIS, even if USCIS does this thing called reaffirmation of the I-130 petition and sends it back to the NVC, your case can take months and months.

Now, sometimes, when we file our lawsuits for these overseas delay cases, the cases do end up with someone getting a notice of intent to revoke or possible revocation. And the one good thing about the lawsuit is that consolidates that timeline. So, you could be waiting months and months and months for the embassy to issue the notice, months and months and months for the embassy to transfer the case, months and months and months for USCIS to issue the actual notice of intent to revoke, and then months and months and months while you wait for the case to get sent back to the embassy. When you have a lawsuit on file, all that consolidates. We've had those things go in three or four months as opposed to six or nine or 12 months. So, that's one little benefit, but generally when you get that, it's not a good thing.

And so, in this video, we wanted to talk about what are the chances of success? And we had a client this week get sort of upset with us, accused us of siding with the government and sort of taking the government side and not really looking at the information that they wanted to submit before telling them that we thought they had about a 10 or 15% chance. And we give that analysis just because that when the embassy has dug in their heels and said, "We're not going to approve it at this time." That means it's pretty unlikely that they're going to approve it at all.

So, even if it goes back to USCIS, and even if the agency reaffirms the I-130 and sends it back over to the embassy, your chances of success are very low. They've already demonstrated that they don't like the marriage, that they don't want to give the visa. So, it's going to be difficult. We've overcome it. It happens, but it only happens about one out of 10 times. It's not a good thing when you get that notice that it's being sent back to USCIS. And it probably means, at the end of the day, that the visa will never be issued. I hate to be the bearer of bad news. Not the one doing it to you, but that's the situation. So, obviously, it's an upsetting situation, because you and your loved one have been living apart for so long. And now the prospect of not living together at all can be very upsetting.

So, just wanted to lay it out there. I don't think you should listen to people who say, "Oh yeah, we can overcome this." You might. You might be able to overcome it. Hopefully, you can overcome it, but don't just pay some lawyer money because they say, "Oh yeah, we can win this." We want our clients to be fully educated when they make that decision as to whether to keep going and to understand the odds against them. And it's not anything about that particular case. It's just that once it's reached that stage, you're in pretty big trouble.

So, if you have questions about this, give us a call, 314-961-8200. You can email us at [email protected]. Be sure to join us in our Facebook group, which is called Immigrant Home. We'd love to see you in there. If you have any questions, feel free to jump in and ask away. Don't forget our YouTube channel. You should subscribe to that, because we update it with new videos every single day. And on Tuesdays and Thursdays, usually at noon Central Time, you'll find me live in our Immigration Answers Show. Thanks a lot. And have a great day.

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