Updated: Sep 3, 2020
Matter of ORTEGA, 28 I&N Dec. 9 (BIA 2020) highlights how Immigration and Nationality Act Section 204(c) will come back to bite. A United States citizen filed Petition for Alien Fiancé(e), Form I-129F on November 17, 2004, for beneficiary. The K-1 petition was approved by United States Citizenship and Immigration Service (“USCIS”) but during the consular interview (amazing how times have changed) the beneficiary’s fiancée and beneficiary had some discrepancies or inconsistent statements regarding the relationship. They failed to make a good first impression. The Embassy sent the petition back to USCIS. USCIS then issued a Notice of Intent to Revoke, which went unanswered. The I-129F was revoked much like an unanswered motion for summary judgment becomes a default judgment. In 2007 beneficiary was sponsored by his United States citizen parent, who filed a Petition for Alien Relative, Form I-130 for an unmarried son or daughter of a United States citizen. The I-130 was approved.
Many years later, in 2017, probably when the visa priority date became current, USCIS sent a notice of intent to revoke the I-130 which was contested. Even so the Board of Immigration Appeals denied the parent’s I-130 based on the previous uncontested I-129F's Notice of Intent to Revoke.
In my opinion, a K-1 is a hybrid visa, not an immigrant visa, because you have to be single up to the time you are inspected and admitted into the United States. A person can enter with a K-1 visa and subsequently apply for asylum or some other humanitarian visa or return home and not marry if Prince or Princess Charming Petitioner turns into a frog.