Posts Tagged ‘K1 Visa’

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US Visa Thailand: Consular Processing and the Foreign Affairs Manual

Tuesday, December 22nd, 2009

The United States Foreign Affairs Manual (also known as the FAM) is a very helpful resource for both State Department employees as well as United States Immigration attorneys. Below is a brief overview of the guidelines in the FAM with regard to Consular correspondence with US Immigration lawyers.

Some are of the belief that an alien visa applicant has a right to attorney representation at a US visa interview. Although applicants and petitioners have the right to attorney representation before the United States Citizenship and Immigration Service (USCIS), this is not true for US Embassies or Consulates as they are under the jurisdiction of the US State Department (DOS) and not the Department of Homeland Security (DHS). Each diplomatic or consular post has the latitude to set its own policy on this issue. To quote the Foreign Affairs manual directly:

“Each post has the discretion to establish its own policies regarding the extent to which attorneys and other representatives may have physical access to the Consulate or attend visa interviews, taking into consideration such factors as a particular consulate’s physical layout and any space limitations or special security concerns. Whatever policies are set must be consistent and applied equally to all…” [9 FAM 40.4 N12.4]

Although provided a great deal of discretion with regard to attorney presence at the post, Consular Officers are still required to notify attorneys as to the status of an applicant’s case:

“The post must send a notification of the action taken at the time of the final immigrant visa appointment to the applicant’s attorney of record on a locally reproduced nonstandard form letter… If the immigrant visa is refused, you must hand a copy of the refusal letter…to the alien (making sure that the refusal worksheet is retained in the applicant’s visa file)…” [9 FAM 40.4 N12.2]

Consular Officers may communicate directly with the applicant’s attorney of record if they feel so inclined. This correspondence can be highly beneficial for all concerned as it can facilitate efficient case adjudication:

“You may correspond directly with the applicant’s representative of record, even in cases where the applicant is physically present in the United States, unless the applicant requests otherwise…” [9 FAM 40.4 N12.1]

It should be noted that State Department personnel are required to treat a licensed American attorney working abroad in the same way as he or she would be treated if practicing in a jurisdiction of the United States of America.

“You must extend to a U.S. attorney who has been practicing abroad and is a member of a State bar association…the same courtesies in correspondence that are extended to an attorney practicing in the United States…” [9 FAM 40.4 N12.3]

This author can say from personal observation that Consular Officers generally process their caseload in an efficient and cordial manner. That being said, anyone claiming to have “special connections,” at a US Embassy or Consulate should be dealt with cautiously. Many “fly by night” operators make incredible and unfounded claims while favoritism in visa application adjudication is not only forbidden, but could result in serious penalties for all concerned.

To read the Foreign Affairs Manual in its entirety please see: http://www.state.gov/m/a/dir/regs/fam/

Ben Hart is a Member of the American Immigration Lawyers Association and the Managing Director of Integrity Legal (Thailand) Co. Ltd. For more information, please contact 1-877-231-7533, +66 (0)2-266-3698, or info@integrity-legal.com. Please see: K1 Visa Thailand or Fiancee Visa for more information

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American Immigration from Thailand: Expedited Removal

Tuesday, November 24th, 2009

There seems to be a recent trend of expedited removals of aliens attempting to enter the US on tourist visas. The following post is a brief summary of the situation.

Recently, my colleagues and I have noticed a major upsurge in the number of expedited removals from the United States. Increasingly, it looks as though non-immigrant aliens are being denied entry to the USA on the ground that they are undisclosed immigrants without documentation. This might not be connected with an overall policy change at the Department of Homeland Security (the department with jurisdiction over Customs and Border Protection). However, it does provide this author an opportunity to discuss expedited removal and how it can affect a loved one’s chances of subsequently entering the United States of America.

In the cases we have recently seen, the foreign national entrant was detained at the border while attempting to enter the USA on a tourist visa. In these cases, the foreign national was a girlfriend, wife, fiancee, or loved one of a US Citizen. Subsequent to questioning regarding travel intentions, some prospective entrants were subjected to body searches and lengthy detainment while CBP decided what ought to be done with them. In past cases, prospective entrants were provided an opportunity to withdraw their request for admission and go home. Currently, there are increasing numbers of cases where CBP officers find an intending entrant inadmissible and uses expedited removal proceedings to deny them access to the USA. This situation leads to the possibility of an alien loved one being barred from the US for a minimum of 5 years.

How is it possible for a Border Protection agent to ban a loved one when they attempted to enter the USA using a validly issued visa? Pursuant to Section 302 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which became effective April 1st 1997, amending Section 235(b) of the INA, the Customs and Border Protection service was given the authority to impose expedited removal upon aliens attempting to enter the USA. In cases such as this, the most often noted reason for expedited removal of foreign loved ones trying to enter the US on tourist visas occurs in a case where the Customs and Border Protection official determines an alien with a tourist visa to be an “immigrant who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by [The Immigration and Nationality Act], and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the regulations.” [212(a)(7)(i)(1)]

Essentially, CBP seems to be using expedited removal when they believe an alien is secretly an intending immigrant using a tourist visa to quickly enter the United States and adjust status to permanent residence. This scenario could be avoided if a foreign fiancee uses a K1 visa to enter the USA. In instances regarding an alien spouse, an Immigrant visa or a K3 visa can be utilized to forestall expedited removal on the previously mentioned grounds.

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Can a K1 Visa be Guaranteed for My Thai Fiancee?

Friday, November 13th, 2009

In the Kingdom of Thailand, and around the world, there are so-called “visa agents,” “lawyers,” and “Immigration Advisors,” making ridiculous claims regarding how they can facilitate visa issuance for the Thai fiances, husbands, and wives of Lawful Permanent Residents and Citizens of the United States of America. One of the most incredible assertions is the idea that one of these agents can guarantee visa issuance. All over the internet there are “fly by night operations” making such claims and they trick otherwise unwitting consumers into thinking that a US visa’s issuance can be guaranteed. One issue should be fully understood: No one can guarantee that a US visa will be granted. No ethical attorney can make the claim that a visa will be issued with 100% certainty. USCIS officers make determinations based upon the unique facts of each United States visa application. The Consular staff at US Embassies and Consulates overseas make more factual findings in order to decide if a US visa should be issued. An attorney acts as an advocate for visa issuance. Further, a US Immigration lawyer will advise and assist clients in deciding upon the category of visa that is right for their situation. A qualified American Immigration attorney will likely exhaust all ethical methods to make certain that a visa is issued.

Look at the “fine print” of some of these “guarantees.” Generally, these “guarantors” simply guarantee “USCIS approval” which is just one component of the United States visa process and should not be confused with visa issuance.

Where an attorney enters their appearance, they are also required to represent their client for the duration of the case, or to the point agreed to by the client. Another unfortunate occurrence in Thailand and elsewhere abroad is to see “visa agents” and “lawyers” abandon their clients and their clients’ Thai fiancees and wives when the case becomes more complicated than originally anticipated.

There are many unlicensed “visa companies” operating outside of the United States of America. According to USCIS regulations no one is allowed to take money in exchange for providing advice regarding United States Immigration law unless they are a licensed attorney in one of the 50 US States or a territory of the United States. Thus, unless a client is dealing with a qualified US lawyer they should not be remitting fees for the services of a “visa agent,” or “lawyer” who cannot provide proof of proper licensure. If dealing with one claiming to be a lawyer ask to see their US state or Federal license to practice law. If they cannot produce such documentation then there is a strong reason to believe that they are not entitled by law to represent clients before the United States Citizenship and Immigration Service (USCIS).

For more information please see: my thai fiancee..

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K1 Visas: The Widows Penalty

Wednesday, October 28th, 2009

The following article explains the so-called “Widow’s Penalty.” Legal deficiencies in the US Immigration and Nationality Act place widows and widowers of Americans in a legally difficult position if the American spouse dies before a final ruling in a critical phase of the Immigration process.

US Immigration is a deep area of law because it is an area largely governed by statutory regulations. Certain aspects of American Immigration can be very confusing and one of the most confusing issues deals with two things that few bi-national couples wish to address: Death and Loss of Immigration Benefits.

In cases involving marriage to a United States Citizen, for a foreign fiancee to eventually obtain unconditional permanent residence in the United States they must pass through a series of adjudications for the Immigration authorities to ensure that the marriage is not a sham. There is a valid argument that the US government begins scrutinizing a couple the moment the application for a K1 visa is submitted. Upon preliminary approval, the file will be sent to the US Embassy or Consulate with jurisdiction over the foreign fiancee’s residence. The Consulate will interview the applicant and if satisfied that the marriage is genuine, they will issue a K1 visa. The foreign fiancee will then pass through an inspection point at a port of entry in the United States where Customs and Border Protection officers will make another determination as to admissibility.

After lawful admission in the United States, the non-Citizen fiancee must marry the Citizen fiance and apply for adjustment of status wthin 90 days. In most cases, the marriage is executed and the foreign spouse is approved for adjustment, thereby making her a conditional lawful permanent resident. After two years in conditional permanent resident status, the couple must apply to have the foreign spouse’s residence made unconditional. The so-called “widows penalty” becomes an issue during the pendency of an adjustment of status application or before the submission of an application to lift the conditions of the foreign spouse’s residence. If the American Citizen spouse dies prior to the approval of either of these petitions, then it can create a difficult situation for the foreign spouse because the applicant no longer meets the requirement for a lifting of conditions or adjustment. Thus, the non-Citizen widow could be considered out of status as they are no longer married to a United States Citizen. US Courts have attempted to address this problem by interpreting statutes to allow foreign spouses to remain in the United States. The United States Department of Homeland Security has provided a sort of amnesty for widows by deferring inspection of those in that situation.

These legal issues are not fully settled as currently there are conflicting interpretations of these laws. In general, the mood of the courts seems to be in favor of doing away with this so-called penalty because implementing the law in its current form leads to unfair outcomes for immigrants already present in the USA.

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K3 Visa Law: Form G28

Tuesday, October 27th, 2009

As of the day of this writing, USCIS is issuing a new G28 (Notice of Attorney Appearance) form. This document is used to signal the presence of an attorney in a case pending before the DHS (Department of Homeland Security).

American Citizens date, court, and often marry people from countries other than the USA. As a result, a large number of Immigration applications are submitted to the DHS (Department of Homeland Security). Oftentimes, the beneficiary and petitioner decide to handle the immigration matter by themselves, in that case the G28 will not need to be presented as there is no attorney involved. A G28 form is used to inform the government that a qualified representative has entered their appearance in a case.

A significant difference between the old and new version of the G28 form is that the new form requires one to indicate in which agency the case is pending. If the situation involves an issue with the CBP (Customs and Border Protection), then the lawyer will tick the box on the G-28 denoting said agency. If the situation involves a client who has been detained by ICE (Immigration and Customs Enforcement), then the for requires that this information be disclosed.

In situations where a G-28 is submitted, it is common for USCIS to send the attorney of record duplicate copies of all correspondence between the Service and the Petitioner. Also, if the US Embassy sends correspondence to the non-citizen beneficiary, then the American attorney will generally be provided with a copy of the relevant correspondence.

As mentioned in previous articles, submission of a G28 form is one way of making certain that one is dealing with an attorney because only an attorney may be paid to appear before the government in immigration matters. Further, the current G28 form requires the attorney to disclose their state of license and bar number. One should not feel embarrassed to ask for a copy of an attorney’s credentials. Any United States Immigration practitioner who is unable to produce some sort of license (state bar license, state Supreme Court license, Federal Court license, etc.) should be viewed with caution.

To learn more please see: k1 visa. Please see k1 visa process for more on getting a visa to the USA.

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How Long Can My Thai Fiancee Wait Before She Must Use Her K1 Visa?

Thursday, October 15th, 2009

This post is meant to provide information regarding the many facets of the US Immigration process for Thai Fiancees. All over the world wide web there are websites which claim expertise in US Visas from Thailand. The intention of this piece is to simply provide information and insight.

The K1 visa process is relatively long, and at times, the cause of some consternation. In certain instances, a Thai-American couple will wait between 5-6 months before obtaining approval from USCIS. Upon approval, the application must be sent to the National Visa Center and then finally, in the case of Thai fiancee visa applications, to the file will be sent to the US Embassy in Thailand. For many, this process can be aggravating. In many cases, the wait ultimately results in the issuance of a valid K1 fiancee visa.

After receiving the visa, there are those who are distressed about the information imparted on the actual travel document. Of great concern is the notation on the visa which states: “K-1 Petition Expires on MM DD, YYYY.” Many American Citizens mistakenly believe that this is the end of the visa’s validity. As a practical matter, the visa is valid for going to the USA until its expiration. As a rule, K1 visas are valid for six months. Although, they could be issued with more or less validity as it is technically at the discretion of the Consular Officer adjudicating the case at the United States Embassy in Bangkok.

The expiration date of the visa can cause confusion as well. The K1 visa is valid for six months after issuance. After arriving in the USA and being lawfully admitted thereto, the holder of the K1 visa will be able to remain for 90 days. Subsequent to an approval for adjustment of status, the K1 visa holder will be granted conditional lawful permanent residence. Some people, after being issued the K1 fiance visa, are puzzled by these different dates. The important thing to bear in mind about the K1 visa is that it can be utilized within 6 months of its issuance and it provides 90 days of lawful status to the bearer upon entry. If the parties do not get married in 90 days, then the K1 visa holder must leave the USA before the visa expires.

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Hiring an Attorney for a Thai Fiancee: Conducting Due Diligence

Sunday, October 4th, 2009

A major concern for anyone seeking to retain legal advice regarding an Immigration matter from Thailand: how can I tell if my Thai fiancee is receiving legal advice from a competent credible professional? The answer: ask to see some credentials. Much like a waitress asking someone for ID who appears less than 21 years of age, prospective clients should never be too shy to ask their prospective attorney for a copy of his or her bar card or other certificate in order authenticate their credentials. Also, inquire as to what law school the attorney attended, if he or she graduated, and upon graduation what state bar exam was taken and passed in order to acquire a license to practice law. If the person in question evades the inquiry or becomes hostile, then this might be a sign that the person is hiding something…or isn’t what they claim to be. If he or she provides the name of their state of licensure, then go to the internet and search for the bar association or Supreme Court of that state. Every state maintains a database listing all of the attorneys licensed in their jurisdiction. If the “attorney” is not on this list, then further inquiry may be required.

Usually at this phase, most people would wonder: “Am I going to trust my Thai fiance to an operator who fabricates information about their legal credentials?”

United States Immigration rules and regulations are a complex and constantly changing area of American law. On the surface, United States immigration may appear to be a straightforward endeavor and there are those who claim it is merely “filling in forms.” However, upon further investigation, one will quickly see that it is a narrow and deep area of legal practice, filled with pitfalls for the unwary. Failure to be one hundred percent honest in an application can lead to unintended consequences. Pose this question to yourself, “should I place my thai fiancee in the hands of a person who instructs her to lie to the U.S. Government?”

A lack of knowledge with regard to applicable immigration rules, regulations, and deadlines, can place the otherwise innocent couple into a situation where their hopes of obtaining a visa are in jeopardy. When hiring an Immigration Attorney stay away from so-called “visa companies,” and “visa specialists,” as they are unsanctioned by the Immigration authorities at USCIS. The operators to be most on the lookout for often use the even more sinister tactic of claiming to be an actual attorney when in fact they are unlicensed and often have not even graduated from an accredited law school in the US. An unethical operator such as this ought to be dismissed out of hand, because they can cause problems in a case due to lack of expertise and where something does go wrong, even where it is no fault of theirs, they still are unable to remedy the situation because USCIS will not correspond with an unlicensed agent. Generally, Embassies and Consulates will not accept 221g follow up documentation from an unlicensed attorney.

To learn more about this and other Immigration matters please see: K1 Visa Thailand.

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US Immigration Thailand: Dual Intent

Thursday, September 10th, 2009

The Dual Intent Doctrine is a legal concept that occasionally arises in United States jurisprudence, specifically Immigration and Nationality law. This idea was formulated in order to grapple with those situations where an alien present in the US on a non-immigrant visa has aspirations for eventual residence. Pursuant to the American Immigration and Nationality Act (INA) a non-immigrant can be denied access to the United States either at the Embassy level (through visa denial) or at the port of entry in the United States should the competent authorities decide that the applicant is actually intending to immigrate. For instance, many applicants for a US tourist visa are turned down based upon section 214b of the INA which creates a statutory presumption of immigrant intent, those presumed to have immigrant intent cannot be granted a non-immigrant visa. The Doctrine of Dual intent creates visas which allow the visa holder to simultaneously have both the intention to remain in the US short term and the intention to remain in the US long term. Examples of visa categories which utilize the dual intent doctrine are the L1 visas and the H1b visas. Both of these employment visas leave legal room for alien to aspire to American Permanent Residence, while also maintaining non-immigrant visa status. In the area of United States Family Immigration, the K1 fiance visa is a classic example of a visa that employs the dual intent doctrine. The bearer of an American fiance visa is permitted to request admission to the USA at a port of entry. At first, the K1 visa holder is in non-immigrant visa status and the visa has a validity of merely 90 days once used. However, the bearer of the visa is allowed to get married to their American fiance and apply for permanent residence via adjustment of status. If applying for most visas, an applicant with dual intent would be denied a visa, or be barred from entering the United States. In certain cases, American Immigration legislation has created special exceptions to general rules in order to deal with extraordinary situations.

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Thai Visa

Thursday, September 3rd, 2009

Coming to Thailand in order to stay long term and bringing a loved one from Thailand to the United States can be difficult efforts. When one analyzes the Consular and Immigration systems of the United States and Thailand one can quickly ascertain that the Thai system is less complicated. Simultaneously, the Thai government grants more convenient access than does that of the United States. At the time of this writing, the Kingdom of Thailand extends visa-free entry privileges to citizens of many countries. For those who enter Thailand without a proper visa, they may gain presence based upon a visa exemption. Most non-immigrants must depart the Kingdom within thirty days. That being said, if a person enters the Kingdom of Thailand on a visa exemption at a land border, then the entrant will, more likely than not, only be accorded a fifteen day exemption. Those opting to stay in Thailand for a longer period than their visa exemption’s validity can apply for a long term Thai visa in another country. The most widely utilized Thai Visa categories are: (B) Business, Tourist, Education (ED), and the catch-all Other (o) category. To compare the Thai Immigration system to that of the United States is to compare two very dissimilar methods of Immigration control. In the case of the Thai system, the rules are somewhat lax, however under the US system the rules have become increasingly stringent. At one time, it was possible to obtain a United States tourist visa without being subjected to a visa interview. Since September 11th, the United States Embassy in Bangkok has required interviews for those applying for American tourist visas. In Thailand, there is no such thing as a fiance(e) visa. Multi-national Thai couples who would like to remain in Thailand can apply for an “O” visa, but only if one of them is a Citizen or resident of Thailand. That being said, a visa application which is based upon an intent to marry a Thai is unlikely to receive approval. On the other hand, many foreign fiances of American Citizens come to America in order to get married. Each year in Thailand, many applications for the K1 visa (fiancee) are processed through the US Embassy. Thai-American couples that successfully get a K1 visa usually get married in the United States and apply for an adjustment of the Thai national’s status. Unlike Thailand, US permanent residence is somewhat easy to obtain for those married to a US Citizen.

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K-3 Visa Thailand: Why Do We Use the K-1 Application Form?

Tuesday, August 18th, 2009

An frequent query regarding the Supplemental Marriage Visa Petition is: why is the marriage visa application using the same form as the K1 visa for a fiance?

The K-3 visa was originally created as an expedited visa for foreign spouses of Americans. Back when the United States Citizenship and Immigration Service was referred to as the Immigration and Naturalization Service (INS), the classic I-130 application for an IR-1 or CR-1 Immigrant Spouse visa took as long as three years to adjudicate. This lead to an egregious backlog of pending cases and probably was one of the reasons why INS (USCIS) was reorganized.

When petitioning for any American marriage visa, the initial task involves submitting an I-130 petition. Should the couple decide to apply for a faster visa, then they have the right to file an I-129f petition with a USCIS Service Center. This part of the process can only happen after the first application has been received by the correct USCIS office.

In certain ways, the K3 marriage visa is the same as the V visa, as they are both intended for family members to travel to the USA while awaiting adjudication of an Immigrant visa. At present, use of the V visa is in decline because it can only be utilized by those who filed for an immigrant visa before a statutorily prescribed date.

This still does not answer the question, why use the fiance visa application form? Put simply, it was probably simpler and less expensive to use the K1 visa application form rather than create a completely new document to be used exclusively for the K3 marriage visa.

In cases involving those who are unaccustomed to dealing with USCIS, filing proper documentation is the key to favorable results. At the same time, this analysis can change depending upon the situation. Therefore, the burden of proof may be different if one is seeking a fiance visa versus a marriage visa.

One should always remember that providing false documentation in a visa application is never a positive way of obtaining Immigration benefits. This approach sometimes results in a finding of legal admissibility with the upshot being a further investment of money and time to eventually ensure the significant other gets a US visa.

(Please note that nothing contained herein should be utilized as a substitute for legal advice. People seeking legal information should consult an attorney for personal legal advice. No Lawyer-Client obligations are to be inferred to have been created between the author and any reader of this posting.)

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