Posts Tagged ‘US 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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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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Types of US and Thai Visas

Friday, August 14th, 2009

Even though this query sounds as if it has an easy answer, in reality visas are a complicated area for laypeople. Some folks do not realize that until after WWI passports were a rarity, and visas were not often utilized.

The types of visa discussed in this article are not used to purchase consumer goods. Conversely, these are the items necessary to enter many foreign nations. A widely held belief involves the concept that the holder of a visa has an unalienable “right” to enter the foreign nation. In general, a visa does not confer an unalienable right to enter a country.” Instead, a visa is simply an acknowledgment by a diplomatic or consular officer that the person holding the visa should be accorded the right to seek entry.

In Thailand, there are many different visa categories under Thai Immigration law. Thailand seems to have a Permanent Resident system comparable to that of the USA. However, looks can be deceiving as Thai Permanent Residence is extremely difficult to obtain and there is a quota set for people of differing nationalities. In the late 1970’s the Thai government authorities at Royal Thai Immigration promulgated non-immigrant visa categories. At present the most common categories are the B visa (Thailand Business Visa), the Thailand O Visa, and the Thailand Retirement Visa.

A large number of Thai nationals request entry to the USA on a yearly basis. One of the most desired visas by Thai nationals is the K1 fiancee visa. The K1 visa was created for Thai fiancee’s of American Citizens who wish to travel to the USA and marry their loved one.

In some cases, where a couple is already married, it may be necessary to file for a classic United States Immigrant Visa. The CR-1 or IR-1 Visa (Immigrant) give the bearer the right to reside permanently in the USA. In most cases, the Immigrant Visa will take 12 months to process. However, for those couples who are already married and wish to expedite the process the K3 marriage visa is an option. The K3, like the K1, is a non-immigrant visa category. This means that the K3 visa holder will need to adjust their status in the USA. In the past, K3’s were considered important because CR1 and IR1 Immigrant visas took a long time to process. The K3 is slowly being rendered obsolete due to increased efficiency on the part of USCIS.

Countries other than the Kingdom of Thailand and the United States issue visas.

For more information please see Thailand Visa

This isn’t a sufficient alternative to individualized legal counsel. No Attorney/client relationship should be inferred from reading this article.)

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F1 Visas for Foreign Fiancees: A Bad Option

Friday, July 31st, 2009

Lots of people come to the Kingdom of Thailand and find true love. The women of Siam are among the most intriguing and captivating in the world. Therefore, many United States Citizens seek to have their Thai fiancee join them in the USA.

In an overzealous attempt to speed up the US Immigration process some Americans use dishonest Immigration tactics, but in the end, these methods often result in more delay and frustration than they sought to avoid. Some people attempt to avoid filing for a US fiancee visa for a Thai loved one. The reason people wish to circumvent this visa route is based in part on the fact that the K-1 visa processing time is somewhat longer than that of some of the other non-immigrant visa categories. For example, the use of American tourist visas to bring Thai loved ones to the USA is well documented. This Immigration scenario usually ends badly because the Thai fiance is often denied the visa at the United States Embassy in Bangkok, Thailand or worse refused entry to at the Immigration checkpoint in the United States. Other issues could come up when the Thai national tries to adjust their status from Tourist visa holder to lawful permanent resident in the United States subsequent to marriage.

Since September 11th 2001, the United States Embassy in Bangkok has been more vigilant in verifying the bona fides of US Tourist Visa applications, the result of this vigilance is a comparatively higher denial rate. The result of more tourist visa denials is a situation in which US men seek to bring their Thai loved one to the United States on a Student visa. This method is ill-advised because, as with use of the US Tourist visa for undisclosed immigration purposes, utilizing an F-1 student visa when the Thai lady really intends to marry her American citizen fiance could lead to negative consequences. Providing false information to United States Immigration Officials is not only a legal ground of inadmissibility that could cause the Thai fiance to be barred from traveling to the USA, it could also lead to criminal charges leveled against both the Thai immigrant and the American Citizen fiance. Therefore, it is highly recommended that those wishing to travel to the USA for the purpose of marriage utilize the K-1 visa since it is the proper Immigration category for this purpose.

This article is not meant to be used as substantive legal advice. An Attorney-Client Relationship is NOT Created by reading this posting. For more information please see Visa Lawyer Thailand.

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United States Immigration: The K-1 Meeting Requirement

Friday, July 3rd, 2009

K-1 visas are a relatively quick and effective method of bringing a foreign fiancee to the United States of America for the limited purpose of marriage and adjustment of status to permanent residence. For those seeking to bring a loved one to America there are many questions and much confusion that surrounds the sometimes complex process. This being said, the K-1 visa obtainment is not an impossible goal, but there are requirements for getting the visa. Some of the requirements are somewhat flexible, but certain regulations are very rigid. One of the more stringent rules requires that a US Citizen and foreign fiancee must personally meet before the American Department of Homeland Security and USCIS will approve a K1 visa application.

When they enacted the legislation promulgating the K-1 visa, the legislators made it very clear that the visa petitioner and beneficiary ought to have met at least once before a fiancée visa should be issued. Inherent in a K-1 visa application there is a requirement that the relationship between the parties must be genuine. One element that goes far in showing the genuine nature of a relationship is fulfilled when both parties meet. Although we live in the 21st century where it is possible to for a truly loving couple to use various forms of communication to form lasting bonds, US Immigration continues to require that fiances meet in the flesh.

As with most rules, there is an exception and in the case of the K-1 visa, there are exceptional circumstances in which a fiancée visa may be granted even where the parties have not met within the two years preceding the visa application. That being said, USCIS is somewhat loath to approve K1 visa applications where the parties involved have not met in person.

According to the cusoms of certain religious sects it is taboo for the parties to a marriage to meet before the day they are to be wed. As a result, USCIS has carved out a sort of niche exception to the K1 meeting requirement where the fiances’ religious practices forbid meeting. Also, an “extreme hardship” waiver can be acquired that puts aside the meeting requirement for a Fiancee visa. To obtain a waiver of the requirement that parties meet, the American citizen must prove that doing so would cause an extreme hardship. In many cases, an example of this type of hardship exists where the US Citizen has some sort of debilitating illness. This showing of extreme hardship is akin to an I-601 waiver of inadmissibility which requires a showing of extreme hardship in order for a finding of a legal ground of inadmissibility to be waived.

(This piece is meant for educational purposes only. No Lawyer-Client obligations are to be inferred to have been created between the author and any reader of this posting.)

The author, Ben Hart, is an American Immigration Attorney with Integrity Legal (a firm with offices in the USA and Thailand). In order to learn more about Integrity Legal contact info@Integrity-Legal.com or Call Toll Free 1-877-231-7533.

 

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