Integrity Legal

Archive for October, 2009

31st October 2009

As reported previously on this blog, HIV is to be taken off of the list of communicable diseases which can cause an Immigrant to be deemed inadmissible to the United States of America. At the time of this writing, anyone who has HIV (Human Immunodeficiency Virus) is not admissible to the United States. This means that those infected with the virus must obtain an I-601 waiver of inadmissibility before they will be allowed to enter the United States. Under the new rule, this will no longer be the case.

To quote a document, provided courtesy of AILA, promulgated by the Department of Health and Human Services:

As a result of this final rule, aliens will no longer be inadmissible into the United States based solely on the ground they are infected with HIV, and they will not be required to undergo HIV testing as part of the required medical examination for U.S. immigration.

As a result of this rule change, it is highly likely that Embassy mandated medical examinations will be greatly altered as it will no longer be necessary for the Embassy-approved doctors (sometimes referred to as civil surgeons) to test prospective immigrants for HIV.

This rule change reflects the new policy of the United States government regarding HIV. Basically the Center for Disease Control and the authorities at the Department of Homeland Security no longer consider HIV a “communicable” disease as defined in the relevant provisions of  Immigration and Nationality Act. To further quote the aforementioned document:

While HIV infection is a serious health condition, it is not a communicable disease that is a significant public health risk for introduction, transmission, and spread to the U.S. population through casual contact.

Please note that this rule has not taken effect and until it does HIV is still considered a communicable disease in cases involving inadmissibility.

Although many laud the promulgation of this rule, there are those, particularly in the LGBT community who feel that the current Administration is not doing enough to provide immigration benefits to same sex couples. Many view this rule change as a “half measure” designed to placate advocates for gay rights as HIV has a major impact upon the gay and lesbian community.

Although this rule change will effect those with HIV who wish to enter the USA, it does not effect same-sex bi-national couples who cannot obtain US Immigration benefits for a foreign partner based upon the current federal laws which do not recognize same-sex marriage. There are many who feel that the rescission of this rule regarding HIV infected immigrants falls short of full immigration equality for all.

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30th October 2009

The United States of America is a nation founded by Immigrants and the descendants of Immigrants. US Family Immigration is one of the most important aspects of the American Immigration system as it helps bind multinational families to the United States of America. In a recent article in the Immigration Impact blog, issues correlating to US Family Immigration were discussed at length. Below are some of the ideas conveyed regarding the system of bringing families together in the USA:

The U.S. immigration system has always promoted family unity by awarding the majority of visas to the families of current U.S. residents, which ensures that close family members are not kept apart. The principle of family unity has long been a central tenet of our immigration laws and has contributed to the economic and social prosperity of our country and immigrant populations.

Even though the USA was founded by Immigrants, today relatives of those in the United States of America must wait years, and sometimes decades, in order to be reunited with their loved ones. More from Immigration Impact:

For instance, the average current wait time for spouses and minor children of legal permanent residents (green card holders) is five years, and the wait time for adult children of U.S. citizens is six years for those still single and eight years for those who have married. Siblings of U.S. citizens must wait between ten and eleven years.

This article went on to note the benefits that Immigrants bring to the US economy. When prospective immigrant from around the world are free to bring their families to the USA they are more likely to melt into the “melting pot,” that is an inexorably part of American culture. Failing to allow family members of these immigrants to come to the US creates a situation in which large amounts of capital depart the United States as Immigrants in the USA must send money abroad to support families who cannot get into the US. There have been some attempts in the past to alleviate these problems, but as this article points out:

Despite the demographic shifts created by various immigration reforms over the years, there has been no substantial adjustment of our family immigration laws in the last 20 years. The broken system has left an estimated 4 million close family members of U.S. citizens and green card holders—potential Americans who would be a tremendous asset to this country—stuck in visa backlogs.

It should be noted that this is not the situation for fiancees and spouses of US Citizens. Luckily, spouses and fiancees of US Citizens are given priority and do not need to wade through the quota system which applies to other types of family based immigration categories. Currently, the K1 fiance visa, K3 marriage visa, and the CR1 visa are processing through the system in approximately: 7, 9, and 11 months respectively.

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29th October 2009

The National Visa Center (NVC) acts as s sort of clearinghouse and intermediary for United States visa applications. Their duties as an intermediary can be shown in the way the NVC receives cases from the Department of Homeland Security’s United States Citizenship and Immigration Service and forwards them on to United States Embassies and Consulates abroad. This function has been documented in detail in previous posts on this blog. However, NVC functions very differently in cases involving Immigrant visas (CR1, IR1) then it does in cases involving the non-immigrant dual intent family visa categories, most notably the K1 visa and the K3 visa.

A K1 visa application or K3 visa application spends a relatively short period of time in the possession of the NVC. In Immigrant visa cases, this is not true. Applications for a CR1 visa or an application submitted for an IR1 visa are held at NVC for a substantially longer period of time. Unlike the K1 and K3 visa categories, packet 3 is sent out by the NVC and not the US Embassy abroad.

The United States Immigration authorities at the American States Department have made the administrative decision to handle all packet three matters at NVC rather than making the Consulates and Embassies handle this aspect of the process. In a way, the decision makes sense as the NVC is in a better position to specialize in this phase of the process. Also, NVC conducts a rather detailed security clearance to make certain that the prospective immigrant is not a threat to National security. Also, NVC will take the affidavit of support fee and process the United States Citizen or Lawful Permanent Resident’s I-864 Affidavit of Support.

It should be noted that in cases where the petitioner is resident abroad, it may be possible to submit a Direct Consular Filing (DCF) or a USCIS local filing. In cases such as this, the case file will not be sent to the NVC, but will either be processed entirely at the Embassy or Consulate; or it will be sent from the local USCIS office directly to the US Embassy. In the case of Thailand, the Bangkok office of USCIS will send all approved locally filed Immigrant visa applications directly to the US Embassy in Bangkok. As the USCIS office is directly across the street from the US Embassy, sending this file directly to the Embassy is usually a very straightforward process.

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28th October 2009

In Thailand, the method of executing a valid marriage is very different from the United States or other common law jurisdictions. A marriage registration is usually conducted at a local Amphur office (Amphoe office). In cases involving a Thai national marrying another Thai national, the process is very straightforward as the couple need only produce their identity documentation and house registration. However, in cases involving a foreigner and a Thai national, the foreigner must produce a great deal of documentation to prove that he or she is unmarried as well as legally free to marry. Depending upon the person’s home country, some or all of this documentation can be obtained either at the Embassy in Thailand or at offices in the person’s home country.

Two foreigners can also execute a lawful marriage in Thailand, but the registration of the marriage could take more time and require the filing of more documentation as neither of the prospective registrants are Thai citizens. Often, this situation has an easy solution as both parties deal with their home government which provides documentation proving that the prospective registrant is unwed and free to marry. In the case of Myanmar (Burma) this is not necessarily true.

Under the laws of the Union of Myanmar heavy restrictions are placed upon Burmese women who opt to marry non-Burmese people. One aspect of these restrictions that manifests itself often in US Immigration matters is the reluctance or refusal of the Burmese government to issue passports to female Burmese nationals seeking to marry a US Citizen either after issuance of a K1 visa or before issuance of a K3 visa or CR1 visa. The Burmese government’s intransience in these matters often results in difficult Immigration cases as the American government often requires a valid passport before a visa will be issued to a non-US citizen.

In Thai marriage registration cases, a similar problem arises as the Burmese (Myanmar) government, through the Myanmar Embassy in Bangkok, this post often refuses to issue affidavits showing the Burmese national as single and free to marry. Amphurs in Thailand require this document before they will execute a marriage between a Thai or a foreigner and a Burmese national. Therefore, failure to obtain this document results in an inability to marry in the Kingdom. Further, the execution of a marriage in Burma (Myanmar) is likely more difficult due to the statutory restrictions imposed upon Burmese women seeking to marry foreign men.

In situations such as this, it may be necessary to plan ahead and obtain passports and other documentation long before it may ever be necessary. Contacting a Bangkok lawyer or US Immigration lawyer may be beneficial as either of these professionals could advise about solutions to such problems.

One should note that Thai prenuptial agreements can be drafted for a marriage in Thailand, but the agreement must be registered simultaneously with the marriage in order for the agreement to be valid in the Kingdom.

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27th October 2009

Recently the United States Citizenship and Immigration Service (USCIS) issued an update reminding foreign nationals in the United States about advance filing for advance parole travel documents. The American Immigration Lawyers Association website summed up this update:

“USCIS reminds individuals that they must obtain Advance Parole (permission to reenter the U.S. after traveling abroad) from USCIS before traveling abroad if they have: been granted TPS; pending application for adjustment of status to lawful permanent resident; a pending application for relief under NACARA 203; a pending asylum application; or a pending application for legalization.”

Advance parole is a particularly relevant issue with regard to those who enter the United States on a K1 fiance visa. K1 entrants have 90 days to marry and file for an adjustment of status. In many cases, applicants file for an advance parole travel document at the same time that they file for the adjustment. That being said, other applicants opt not to take this course of action. In the event of an emergency it may be possible to obtain an expedited advance parole, but these are only granted at the discretion of the adjudicating officer at the local office of USCIS that has jurisdiction over the Petitioner’s (and Beneficiary’s) place of residence.

Even where it may not be immediately necessary, there may be some benefit in applying for an advance parole travel document at the time of adjustment because one never knows what might happen and a sudden family emergency in the Beneficiary’s home country could have the doubly negative effect of causing the Beneficiary to fall out of lawful status, if she leaves the US, with the result that the entire visa process must begin anew.

Even though the K3 visa is a non-immigrant dual intent visa similar to the K1 visa, it does not require advance parole for the beneficiary because it is a multiple entry 2 year visa. Therefore, the K3 visa holder does not fall out of status if they depart the US while their adjustment of status petition is pending. The CR1 and IR1 visas are immigrant visas, therefore, the adjustment process has essentially been completed when the Beneficiary enters the USA. With that in mind, if the CR1 or IR1 visa holder intends to be outside of the United States for longer than 6 months it may be advisable to obtain a US reentry permit as this would forestall a presumption that the permanent resident has abandoned his or her US residence.

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26th October 2009

For those interested in purchasing property in the Kingdom of Thailand, Condominiums can be an attractive proposition. One of the major benefits of Thai Condo ownership is the fact that a foreign national is allowed to take possession of foreign freehold title to that particular piece of Thai Real Estate. In Thailand, foreigners are greatly restricted with regard to Thai property as they cannot own land outright. There are certain situations in which a Thai company can be utilized in such a way that a foreigner enjoys the benefits of land ownership, but these type of structures can be cumbersome and recently the Thai authorities have been cracking down on such entities.

Thai Condos provide the benefit of allowing the foreign national to be registered on the Thai Chanote (Title Deed). Further, by being the owner of a Condo in Thailand, the foreigner can apply to obtain a foreign Tabien Baan (house registration booklet) which can be a major benefit as this document is very useful in conducting legal and business transactions in the Kingdom of Thailand. Further, a Thai Condo owner may be able to enjoy some immigration benefits in the form of a Thailand visa as the owner can show that they are living in the Kingdom and contributing to the economy.

One notable issue that often arises in cases involving Thai Condominiums is the requirement that all funds used to purchase the Condo must originate from overseas. This requirement can be met by those earning an income in Thailand, but a great deal of paperwork must be submitted in order to use income earned in Thailand. An even more pressing issue, however, is that of capital flight after the future sale of a Thai Condo unit. The government of Thailand along with the Thai banks have promulgated policies in order to keep foreign capital in the Kingdom when that capital has been previously used to purchase Thai real estate. For example, if a foreigner in Thailand has a Condo unit and opts to sell it. The proceeds from the sale could be practically impounded in the sense that the Thai authorities will place many restrictions on sending said funds abroad. This situation can be averted throught prior planning. If one seeks the advice of a Thailand Real Estate lawyer, they could provide advice and strategies about how one can structure a Thai Condo purchase in such a way that the proceeds from a future sale can be moved abroad at a future point in time, should a sale even occur.

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25th October 2009

Recently, Alejandro Mayorkas was appointed as the Director of the United States Citizenship and Immigration Service within the United States Department of Homeland Security. Mr Mayorkas was recently interviewed by members of the United States and foreign press corps in an effort to hear his views on United States Immigration policy and the future of US Immigration law.

Below are some of the important quotes that this author found both interesting and insightful, the full interview transcript can be read here.

This blog is mostly dedicated to United States family immigration and visas. Therefore, it was a pleasure to hear that Mr. Mayorkas considers US Family Immigration to be a major priority of his agency:

“…One of the goals of an immigration system[:] family unification. Do the laws that we have now achieve that most ably? That’s a question that is — that I think is a valid one to ask. And so we have to take a look at the goals, as a nation, of our immigration system and ask does the structure that we have in place – or do the mechanisms that we have in place accomplish those goals most ably, most completely and most efficiently? And where there are shortcomings, that is, indeed, what immigration reform is in part about.”

As we have posited previously on in this forum, the current system of adjudicating non-immigrant family visas could be considered redundant and a poor distribution of resources. In the case of the K1 visa and the K3 visa one could make a valid argument that such visas, as they involve the doctrine of dual intent, could be completely adjudicated at the Embassies and Consulates abroad while letting USCIS deal with more pressing issues at home. If K visa non-immigrant family members do decide to adjust status, then the USCIS will need to deal with the case as the adjudication will occur under their domestic authority.

Mr. Mayorkas was also quoted as saying, “The fact that I myself was once a refugee to this country informs my views of our agency’s mission and the priorities that we will carry forward, during the time that I am privileged to serve.” This author is definitely happy to see a Director who has personal knowledge of the Immigration system. Hopefully, these personal insights will result in a net benefit for everyone who has dealings with USCIS.

The Director was further quoted as saying,

“The goal of family reunification is indeed one that we hold dear to our efforts as we try to administer the immigration laws fairly and with justice always in mind. Ultimately, our adjudications are indeed on an individualized basis, and there are mechanisms that the law acknowledges to achieve family reunification in particular cases. And that is very much a part of the work that we do.”

This author is happy to hear such sentiments from the Director of USCIS and hopefully this is a sign of things to come as the Immigration system becomes a more compassionate and efficient agency of the US government.

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24th October 2009

For those traveling to Myanmar information on the Myanmar (Burmese) Embassy in Bangkok, Thailand may be helpful in making preparations for a Myanmar visa application. The government of the Union of Myanmar requires a sort of “exit visa” for those leaving the country if they have not received a Myanmar visa before entering the country. Therefore, it is highly advisable to obtain a Myanmar visa before traveling to the country as it will make the entrance and exit process a great deal more streamlined. Myanmar requires many foreign nationals to obtain a visa in any event. That being said, the Myanmar visa application process can be a rather cumbersome undertaking as the Myanmar Consular Section, although very courteous and polite, seems to have a very heavy caseload of visa applications.

Out of all the countries in the Association of Southeast Asian Nations (ASEAN), Myanmar is the only one that does not allow visa free travel for nationals of member nations. Therefore, those wishing to travel to Myanmar will likely need a visa unless they are able to enter on some sort of visa exemption.

The Myanmar Embassy is in Bangkok near Sathorn Road in the Silom area. Currently, the Consular Section is undergoing renovations so the waiting room is in a state of some disarray. Therefore, foreknowledge of the protocols may be beneficial. Currently, all applicants must submit their visa applications in person. Therefore, one cannot send a messenger in one’s stead. Applicant’s must get a number from the first window. The Consular officer will go over the visa application and if approved they will ask the applicant to remit their passport and return to pick it up. If the applicant submits the application late in the day, then it may be necessary to wait until the following day to pick up the visa and passport.  Myanmar visas are usually issued with a validity of 30 days. That being said, unlike a Thailand visa or an American visa, the Myanmar visa only allows presence in the country during that time period. Unlike Thai or US visas the entrant will not be stamped into the country in lawful status that may surpass the underlying visa’s initial validity. Something akin to a Thai visa extension must be obtained in order to remain in the Union of Myanmar longer than the initial visa’s validity period.

The Consulate will give the applicant a visa stamp in their passport as well as another slip which must be presented along with the visa at the Immigration checkpoint in Myanmar. After being stamped into Myanmar, the entrant can remain until the visa expires. Myanmar allows for tourist as well as business visas. That being said, business visas can be difficult to obtain.

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23rd October 2009

Recently the United States Citizenship and Immigration Service (USCIS) announced that a revised form has been issued for those who wish to file for an I-601 Waiver. An I-601 waiver is a waiver of legal grounds of inadmissibility under the United States Immigration and Nationality Act. An alien is found inadmissible if they meet the elements of inadmissibility under the act. Common grounds of inadmissibility among applicants in Thailand are overstay, prostitution, Crimes involving moral turpitude, and health related grounds. If a finding that one of these grounds exists is made by the Consular or Immigration officers, then the applicant must seek an I-601 waiver before they will be entitled to enter the United State lawfully.

In recent days, USCIS has been revising some of the forms that they will accept in connection with certain immigration matters. For example, USCIS recently announced that they will only be accepting an updated version of the G28 Notice of Attorney Appearance. Those who have already filed applications for Immigration benefits before this update comes into effect will not need to submit any new forms as the service will continue to recognize the old forms in an effort to seamlessly transition from the old forms to the new. These efforts seem to be an attempt to streamline the, somewhat complicated, administrative aspects of the US Immigration application process. To quote directly from the USCIS press release:

USCIS has revised Form I-601, Application for Waiver of Grounds of Inadmissibility (Revision Date 04/06/09 N, OMB Expiration Date 04/30/11) to make it easier for applicants to complete. Applicants may now select from a list of grounds of inadmissibility on the form itself and mark all which apply to them in order to request a waiver. In addition to the list, the form includes a section where applicants can describe, in their own words, why they believe they are inadmissible. In the previous edition of Form I-601, information about grounds of inadmissibility could only be found of the form’s instructions.

We applaud the efforts on the part of the Service to make this process less complicated and more straightforward. For those interested in submitting a successful I-601 waiver application, it should be remembered that in most cases involving an I-601 waiver, the applicant(s) must show that to deny the waiver would result in an “extreme hardship” to a United States Citizen or Lawful Permanent Resident. This can be a difficult legal obstacle to overcome which is why it may be wise to retain an immigration lawyer to assist with the preparation and submission of such a petition.

Unlike the United States Embassy in Bangkok, which only has jurisdiction ovr the Kingdom of Thailand. The local USCIS office in Bangkok has administrative jurisdiction over most of Asia. Therefore, I-601 waiver applications filed in connection with a K1 visa, K3 visa, or CR1 visa sought from Asia could be submitted at USCIS Bangkok.

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22nd October 2009

There is something of an “alphabet soup,” when it comes to discussing United States Immigration. There are many agencies under the jurisdiction of the United States Department of Homeland Security (DHS), the most important from an Immigration standpoint are: the Immigration and Customs Enforcement (ICE) agency, Customs and Border Protection (CBP), and the United States Citizenship and Immigration Service. Meanwhile, the United States Department of State (DOS) has jurisdiction over the National Visa Center (NVC) as well as United States Embassies and Consulates outside of the USA. This mix of acronyms alone can cause a sane man to go crazy, add on top of this the fact that sometimes different phases of the Immigration process have the SAME acronym and one is left very befuddled.

For example, the process of converting a K1 visa to permanent residence (Green Card) is called Adjustment of Status. when a Thai fiancee travels to the United States on a K1 visa she has 90 days to execute a legal marriage and submit an application to regularize her status. As stated previously, this is commonly referred to as adjustment of status.  It is possible to adjust other non-immigrant visas, such as J1 visas, F1 visas, or B2 visas, but it can be more difficult and one should not travel to the US using one of these visas with the intent to adjust as these categories do not allow for dual intent. One should not confuse the adjustment of status process with the change of status process, which is the process of converting a visa from one non-immigrant visa category to another.

Another “AOS” commonly used in United States Immigration vernacular is the Affidavit of Support. The affidavit of support is the document showing that a United States Citizen or Lawful Permanent Resident can financially maintain a foreign fiancee or spouse in the United States. The worry of government officials is that the foreign loved one may become a “public charge,” the affidvait of support is used to illustrate that this will not be an issue. An affidavit of support is signed by a K1 visa petitioner and submitted at the visa interview at the United States Embassy. At the time of the adjustment of status a different affidavit of support is submitted. K1 visa applications also utilize a different affidavit of support compared to visa petitions for a foreign spouse (K3 visa, Cr1 visa, Ir1 visa).

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