Posts Tagged ‘K1 Visa’

« Older Entries

The Foreign Affairs Manual, US Immigration Attorneys, and Consular Processing of US Visa Applications

Saturday, December 19th, 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

Tags: , , , , , , ,
Posted in Legal | No Comments »

Removal proceedings for non-immigrant aliens at a port of entry in the USA

Thursday, December 3rd, 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 may not be the result of any general policy change on the part of Immigration officers at the Customs and Border Protection Service or at the Department of Homeland Security. This being said, the situation does provide this writer with an opportunity to discuss expedited removal and its effect upon US family Immigration cases.

In the cases recently scrutinized by this author, the foreign national was detained while attempting to enter the USA on a US Tourist visa. In cases such as this, the foreign national was the significant other of an American Citizen. After being questioned about their travel intentions some were subjected to body searches, baggage searches, as well as lengthy detainment while Immigration officers decided what ought to be done with the prospective entrant. In many cases in the past the prospective entrant was accorded an opportunity to voluntarily withdraw their application for entrance, board a plane, and go back to their home country (the home country was usually Thailand in this author’s experience). At the present time, there seems to be a number of instances where a Customs and Border Protection official finds the entrant not only inadmissible, but uses expedite removal to send them back to their country of origin. This results in the foreign loved one being barred from reentering the USA for at least 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? Under Section 302 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which came into effect April 1,1997 and amended Section 235(b) of the INA, the Customs and Border Protection service was granted the authority to impose expedited removal upon those foreign nationals attempting to enter the USA. For the purposes of this article, the most often cited reason for expedited removal of foreign loved ones attempting to enter the US on tourist visas occurs in a case where the Customs and Border Protection official deems 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 situation may be bypassed if an alien fiancee uses a K-1 visa to ask for admission to 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.

Tags: , , , , , , ,
Posted in Legal | No Comments »

Can Anyone Guarantee that My Thai Fiancee Will Get a K1 Visa?

Friday, November 6th, 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 outlandish claims is the notion that one of these operators can guarantee that a visa will be issued. 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 qualified attorney will assert, with 100% certainty, that a visa will be issued. USCIS adjudicators evaluate the facts of every Immigration petition and make their decision based upon the unique set of circumstances present in the case before them. The Consular officers at the United States Embassies and Consulates abroad make further factual findings to determine if US visa issuance is warranted based upon the facts before them. A licensed US lawyer should act as an advocate for visa application approval. Also, an American Immigration attorney can provide advice and assistance to clients regarding the type of visa that they should apply for. A competent Immigration attorney will do everything ethical to be certain that a visa is issued.

If one looks at the fine print of most of these so-called “guarantees” one will see that many of these guarantors only guarantee “USCIS approval” which is only one component of the US visa process and not the same thing as visa issuance.

In situations where an attorney enters his or her appearance in a case, he or she must represent their clients until the conclusion of the case, or until another mutually agreed upon point in the case. Another common practice of unlicensed and unqualified visa agents is to abandon clients when a case becomes too complicated or time consuming.

There are a great number of unsanctioned US “Immigration consultants” operating internationally. Pursuant to USCIS regulations, no individual is entitled as a matter of law to take money in exchange for providing immigration assistance unless they are a licensed attorney in at least one US State or Territory. Therefore, unless one is dealing with a licensed United States attorney, one should not be paying for the services of a so-called “visa agent,” or “lawyer,” who cannot produce credentials. 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).

To learn more, please see my Thai fiance.

Tags: , , , , , , ,
Posted in Legal | No Comments »

Changes to the G-28 Notice of Appearance

Thursday, October 29th, 2009

At the time of this writing the United States Citizenship and Immigration Service is in the process of promulgating a new G-28 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). In many cases, the petitioner and beneficiary opt to deal with their immigration matter without counsel, in these situations a G-28 is not necessary. A G-28 is a method of informing the United States government that an accredited representative is entering an appearance in the case, it is generally presented by a United States attorney.

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. Further, should the US Embassy correspond with the Beneficiary, in some cases, the US attorney will be copied in on the 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.) ought to be looked upon warily.

For more information on this and other Immigration matters, please see k1 visa. Please see k1 visa process for more on getting a visa to the USA.

Tags: , , , , , , ,
Posted in Legal | No Comments »

US Adjustment of Status and the Widow’s Penalty

Sunday, October 18th, 2009

This article attempts to explain the “Widows Penalty.” Inconsistencies in the United States Immigration and Nationality Act have the effect of placing widows and widowers of United States Citizens in untenable positions should the American spouse pass away before some crucial 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. In a way, scrutiny of the couple first occurs when a United States Citizen files an I-129f application for a K1 fiance visa. 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 being lawfully admitted to the USA, the foreign fiancee will have 90 days to marry the American Citizen and adjust status to permanent residence. In many cases, the marriage is executed and the non-citizen spouse has their status adjusted. They are accorded conditional resident status. After two years in conditional permanent resident status, the foreign spouse, along with her American husband, will need to file to have the conditionality of residence lifted and thereby make her an unconditional lawful permanent resident. The “Widow’s Penalty” can come into play before either the approval of the adjustment of status or the approval of the petition to lift of conditions of residence. Should the American spouse pass away before the adjustment of status or application for lift of conditions is approved, then technically the applicant no longer meets the requirements necessary to lift conditions or adjust status. Therefore, the foreign widow could fall out of status because they are no longer married to an American. Often, American courts have tried to deal with this issue by making rulings that allow widows to remain in the US notwithstanding the death of the original petitioner. The Department of Homeland Security has also taken measures to defer inspection of foreign widows and widowers in order to provide a sort of amnesty for those placed in such a difficult position.

This issue has not been fully dealt with as there are many conflicting interpretations of the current law. The current members of the US judiciary seem to be in favor of eliminating this inequitable provision of US Immigration law as it leads to unfair outcomes for widows and widowers of American Citizens and Permanent Residents.

Tags: , , , , , , , ,
Posted in Legal | No Comments »

K1 Visa Information

Saturday, October 10th, 2009

This article is designed to inform readers about the issues surrounding issuance of a K1 visa for a Thai fiancee. Throughout the internet, there are many articles and websites which purport to have expertise in matters related to United States Immigration from Thailand. This article was written as a resource and guide.

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.

Once the visa is issued, some American Citizen fiances become concerned about the information and dates noted on the visa itself. A major source of anxiety for some is the note on the visa which says, “K1 Petition Expires Month Day, Year.” 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 date of the visa’s expiry can be confusing for some. The K1 Visa is usually valid for 6 months after it has been approved. That being said, upon arriving in the United States and being admitted at the port of entry the K1 visa holder is only entitled to 90 days presence in the United States (it should be noted that if the visa holder does, in fact, marry the American and apply for adjustment of status, then she would be entitled to remain indefinitely provided the adjustment of status is approved and any conditions are lifted). Some people, after being issued the K1 fiance visa, are puzzled by these different dates. Two critical factors to remember: the K1 may be utilized for 6 months after it is issued, but it only provides 90 days of lawful status 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.

Tags: , , , , , , ,
Posted in Legal | No Comments »

My Thai Fiancee Needs Assistance With A US Immigration Matter: Who Is Qualified To Assist?

Monday, October 5th, 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. Further, ask the attorney what law school they graduated from and in which state he or she is licensed and in good standing to practice law. Should the individual attempt to dodge the question or if he becomes angry, then one could take this as a sign that the individual is not being completely candid about 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?”

Ignorance of relevant immigration rules and deadlines can lead an unwitting couple into a situation where they are unable to achieve their immigration goals in the time frame they desire. 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. Those to be most wary of: unqualified individuals who claim to be licensed lawyers when in reality they are not licensed in good standing in any American jurisdiction, and furthermore have probably not graduated from an accredited law school. This type of unscrupulous individual should be avoided at all costs, if for no other reason than the fact that if problems arise with the application only a licensed attorney can explain the situation to the authorities at USCIS. Generally, Embassies and Consulates will not accept 221g follow up documentation from an unlicensed attorney.

For more information please see: k1 visa.

Tags: , , , , , , ,
Posted in Legal | 13 Comments »

Simultaneous Intent and US Visas

Tuesday, September 8th, 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 example, many applicants are denied a US tourist visa due to a failure to show sufficiently “strong ties” to their home country (ties compelling enough to leave the United States). 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. A few types of visas which leave room for dual intent are the L1A visa, the L1B visa, and the H1B visa. 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 holder of a US fiancee visa is entitled to seek entry at a port in the United States. 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.

Tags: , , , , , , ,
Posted in Legal | No Comments »

American and Thai Visas

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. At the same time, Thailand accords foreigners with easier access to the country than the USA. At the time of this writing, the Kingdom of Thailand extends visa-free entry privileges to citizens of many countries. Those entering the Kingdom without a visa are granted entry 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 who wish to remain within the borders of the Kingdom of Thailand for a longer duration can apply to obtain a Thai visa at a consular post outside of the Kingdom of Thailand. Common Thailand visa Categories are: Business, Tourist, Education, and “Other” which is used as something of a catch-all category. To compare the Thai Immigration system to that of the United States is to compare two very dissimilar methods of Immigration control. Where the Thai model is relatively permissive, the United States has been in the process of tightening Immigration regulations. 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. There is not a fiance visa category for non-Thai citizens. 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. However, a visa based upon an intention to marry a Thai citizen will not likely be approved. Conversely, many foreign fiancées of US Citizens travel to the United States of America each year. Many people submit a K1 visa application to be ultimately adjudicated at the US Embassy in Thailand. 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. Lawful United States Permanent Residence is easily obtained when compared to the process for acquiring Thai Permanent Residence.

Tags: , , , , , , , , ,
Posted in Legal | No Comments »

US K3 Marriage Visa

Thursday, August 20th, 2009

A common question for those seeking an expedited Marriage visa for their loved one is: why does the K-3 visa use the same application as the k1 fiance visa?

The K-3 visa was originally created as an expedited visa for foreign spouses of Americans. In the recent past, the I-130 petition for a CR1 or IR1 visa could take longer than three years to process through the system. This resulted in a major logjam of unadjudicated cases and could be a factor explaining INS’s eventual reorganization.

When filing for a marriage visa, the first phase is filing an I-130 petition. If the couple opts to apply for an expedited visa, then they can file the I-129f with a service center that has proper jurisdiction. This phase can only occur after the initial petition has been received by the proper Immigration 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. Currently, the V visa category has fallen into increasing disuse due to the fact that it was only available to those who filed a petition before a certain date.

This still begs the question: why use the K-1 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.

For those uninitiated in dealing with the United States Citizenship and Immigration Service, filing the proper paperwork is critical to obtaining an approval from the officers working for the Service. At the same time, this analysis can change depending upon the situation. As a result, the legal threshold may change if a person is seeking a K-1 visa rather than a K-3 Visa.

One should always remember that providing false documentation in a visa application is never a positive way of obtaining Immigration benefits. This strategy could lead to a finding of legal inadmissibility and result is a greater investment of time and resources in order to make sure that a foreign loved one can travel to the USA.

(Please note that nothing contained herein should be utilized as a substitute for legal advice. One should always contact an attorney for personalized legal consultation. No attorney-client relationship exists between author and reader.)

Tags: , , , , , , , , ,
Posted in Legal | No Comments »

« Older Entries