Integrity Legal

Archive for July, 2010

31st July 2010

In recent postings on this blog this author has discussed the Defense of Marriage Act (DOMA) and the ongoing US Court proceedings that are aimed at overturning this legislation in order to accord same-sex bi-national couples with privileges equal to their different-sex counterparts. Recently, a Court in Massachusetts found that the provisions of DOMA run contrary to the United States Constitution. As a result, this decision could greatly modify the framework by which Immigration petitions are adjudicated. Apparently, the Court wishes to delay radical modification of US Immigration law and procedure until such time as all issues can be addressed in an appellate proceeding. It would appear that many same-sex bi-national couples are waiting with baited breathe to see the practical implications of the recent Court decision overturning certain aspects of DOMA. However, there is some delay as the Immigration Equality blog explains.  To quote directly from the Immigration Equality blog as of July 27, 2010:

Many of you have had questions about the status of the DOMA case. Just like you, we are waiting for the court to issue an order which should be happening any day now. Once the order is issued, there will be an automatic 14 day stay. We are almost certain that during that 14 day period, the government will file an appeal and we are almost certain that the stay will remain in effect during the course of the appeal. But we will keep you updated as soon as we learn of any further developments.

Those reading this post are probably curious about the practical ramifications of the “stay” of this decision. The “stay” means that the current mechanism for adjudicating US Immigration petitions will remain in place, at least for now. Therefore, those Americans and Lawful Permanent Residents with a same sex loved one living abroad will still be unable to petition and apply for same sex family visa benefits pursuant to the provisions of DOMA. Many feel, and this author concurs, that the American appellate courts, including the United States Supreme Court, are likely to find DOMA unconstitutional pursuant to American legal doctrines such as “Full Faith and Credit” and “States’ Rights“. However, as the issue remains unresolved it is unwise for anyone to make any irrevocable decisions regarding US LGBT Immigration until a final judgment is handed down without reservation.

It should be noted that judicial intervention is not the only method available for those wishing to see same sex visa benefits accorded in the same manner for those in a same sex marriage or relationship as those in a different sex marriage or relationship. The Uniting American Families Act (UAFA) would provide a statutory framework whereby same sex “permanent partners” could be granted the same Immigration benefits as those in a different-sex marriage or relationship. Although UAFA-like legislation has seen unfailing support from legislators such as Jerry Nadler, many feel that the issue of LGBT Immigration rights will ultimately be adjudicated by the US Courts.

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30th July 2010

The EB-5 Visa: What Is It?

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In recent months, this author has received a number of inquires regarding the American EB-5 visa. Many seem interested in this visa category because it accords the bearer with substantial benefits in the United States and also puts EB-5 visa holders on track to obtain United States Citizenship. In order to provide the reading public with relevant information, this post will provide a brief overview of the EB-5 visa and some information regarding the application process.

A well rounded layman’s definition of the EB-5 visa can be found at wikipedia.com. To briefly quote wikipedia’s entry regarding the EB-5 visa directly:

“The EB-5 visa for Immigrant Investors is a United States visa created by the Immigration Act of 1990. This visa provides a method of obtaining a green card for foreign nationals who invest money in the United States.[1] To obtain the visa, individuals must invest at least $1 million, creating at least 10 jobs.[2]

By investing in certain qualified investments or regional centers with high unemployment rates, the required investment amount is $500,000. The Immigrant Investor Pilot Program was created by Section 610 of Public Law 102-395 on October 6, 1992. This was in accordance to a Congressional mandate aimed at stimulating economic activity and job growth, while allowing eligible aliens the opportunity to become lawful permanent residents. This “Pilot Program” required only $500,000 of investment in exchange for permanent resident status. The investment could only be received by an economic unit defined as a Regional Center.”

Although the above definition provides superficial insight into the mechanics of the EB-5 visa, the official website of the United States Citizenship and Immigration Service (USCIS) may provide deeper elucidation into the eligibility requirements for an EB-5 visa:

Eligibility Criteria

New Business Enterprise

To qualify you must:

  1. Invest or be in the process of investing at least $1,000,000.  If your investment is in a designated targeted employment area (discussed further below) then the minimum investment requirement is $500,000.
  2. Benefit the U.S. economy by providing goods or services to U.S. markets.
  3. Create full-time employment for at least 10 U.S. workers.  This includes U.S. citizens, Green Card holders (lawful permanent residents) and other individuals lawfully authorized to work in the U.S. (however it does not include you (the immigrant), or your spouse, sons or daughters).
  4. Be involved in the day-to-day management of the new business or directly manage it through formulating business policy – for example as a corporate officer or board member.

Targeted Employment Area is defined by law as “a rural area or an area that has experienced high unemployment of at least 150 percent of the national average.”  For further detail click on the Laws section of this website and access section 203(b)(5)(B) of the Immigration Nationality Act (INA).

Troubled Business

To qualify you must:

  1. Invest in a business that has existed for at least two years.
  2. Invest in a business that has incurred a net loss, based on generally accepted accounting principles, for the 12 to 24 month period before you filed the Form I-526 Immigrant Petition by an Alien Entrepreneur.
  3. The loss for the 12 to 24 month period must be at least equal to 20 percent of the business’s net worth before the loss.
  4. Maintain the number of jobs at no less than the pre-investment level for a period of at least two years.
  5. Be involved in the day-to-day management of the troubled business or directly manage it through formulating business policy.  For example as a corporate officer or board member.
  6. The same investment requirements of the new commercial enterprise investment apply to a troubled business investment ($1,000,000 or $500,000 in a targeted employment area).

Regional Center Pilot Program

To qualify you must:

  1. Invest at least $1,000,000 or $500,000 in a regional center affiliated new commercial enterpriose or a troubled business located within the area of the USCIS designated Regional Center.  Regional Centers are defined and discussed further below.
  2. Create at least 10 new full-time jobs either directly through the capital investment.

A Regional Center is defined as any economic unit, public or private, which is involved with the promotion of economic growth, improved regional productivity, job creation, and increased domestic capital investment. The organizers of a regional center seeking the regional center designation from USCIS must submit a proposal showing:

  • How the regional center plans to focus on a geographical region within the U.S., and msut explain how the regional center will achieve the required economic growth within this regional area
  • That the regional center’s business plan can be relied upon as a viable business model grounded in reasonable and credible estimates and assumptions for market conditions, project costs, and activity timelines
  • How in verifiable detail (using economic models in some instances) jobs will be created directly or indirectly through capital investments made in accordance with the regional center’s business plan
  • The amount and source of capital committed to the project and the promotional efforts made and planned for the business project.

As can be seen from the above citation, the eligibility criteria for an EB-5 visa are rigorous, but not insurmountable for an applicant who has the assistance of a competent and experienced US Immigration attorney.  Obtainment of EB-5 visas can require a great deal of time and expense in an effort to ensure that the eligibility and application requirements are met at the time of application submission. Those interested in obtaining such a travel document are well advised to contact an American Immigration lawyer.

For further details about US Immigration in general please see: US Visa.


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29th July 2010

In other postings on this blog we have discussed the Transportation Security Administration (TSA) in the context of both American Immigration as well as national security. This author recently came across an announcement from the TSA about the methods the agency employs in seeking to prevent activity that could be harmful to the public. To quote the announcement directly:

Under the Aviation and Transportation Security Act (ATSA), the Transportation Security Administration (TSA) has “responsibility for security in all modes of transportation.”1 TSA uses an operations center incident management system called WebEOC to perform incident management, coordination, and situation awareness functions for all modes of transportation. The system will store information that it receives about the following categories of individuals: 1) individuals who violate, or are suspected of violating transportation security laws, regulations, policies or procedures; 2) individuals whose behavior or suspicious activity resulted in referrals by Ticket Document Checkers (TDC) to Behavior Detection Officer (BDO) or Law Enforcement Officer (LEO) interview (primarily at airports); or 3) individuals whose identity must be verified, or checked against federal watch lists. Individuals whose identity must be verified includes both those individuals who fail to show acceptable identification documents to compare to boarding documents and law enforcement officials seeking to fly armed. The system also collects and compiles reports from federal, state, local, tribal, or private sector security officials related to incidents that may pose a threat to transportation or national security. TSA is republishing this PIA to clarify that the TSA Operations Center will record telephonic communications. The PIA previously disclosed in section 1.4 that telephone calls were a source of information but did not explicitly state that telephone calls would be recorded. Daily reports will be provided to executives at TSA and the Department of Homeland Security (DHS) to assist in incident and operational response management.

Those interested in this issue may also be interested in the type of information that the TSA is collecting. To quote the aforementioned announcement further:

TSA will collect information about the following categories of individuals: 1) individuals who violate, or are suspected of violating transportation security regulations, policies or procedures; 2) individuals whose suspicious activity resulted in BDO or LEO interview; 3) individuals whose identity must be verified or checked against Federal watch lists. The information collected may include the full names of individuals, aliases and nicknames, date of birth, place of birth, age, sex, race, nationality, languages spoken, passport number, driver’s license number, and telephone number, home and business addresses; Social Security Numbers, height and weight, eye color, hair color, style and length, facial hair, scars, tattoos and piercings, clothing (including colors and patterns) and eyewear, description of personal carry-on and/or baggage items. The system also collects and compiles reports from Federal, state, local, tribal, or private sector security officials related to incidents that may pose a threat to transportation or national security. Additionally, the TSA Operations Center records telephonic communications between or among TSA and transportation security stakeholders or other law enforcement or security agencies regarding threats to transportation security. Callers receive notice that the call may be monitored or recorded.

Although many people hear the “your call may be monitored” message when calling a telecommunications service some do not take this message to heart. That said, those making innocuous communications are unlikely to worry about the government recording their conversations. However, there are those who feel that this is still an invasion of privacy. In the post-911 era, the precautions taken by security officials are more stringent compared to those which were enacted prior to that tragic day. This author personally feels that protection and security are important, but those in positions of responsibility should refrain from exercising their power in a rash manner. It has always been the experience of this author that all government personnel are courteous and diligent in their efforts to provide security and maintain the policies laid out by the American Congress and the Executive Branch of government.

For more information please see: US Visa Thailand.

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28th July 2010

Those who read this blog frequently would likely notice that we sometimes quote text, either directly or indirectly, from American rules, proposed rules, and notices of Federal agencies and organizations, as well as executive orders and other presidential documents. Regulations in the United States are often noted in the Federal Register. In the past, the public service of keeping the public informed about pending regulations and policies was provided in print form. As the world becomes increasingly digital, more and more informational resources are being provided on virtual platforms. It would appear that this is also true for the Federal Register as the following quote from an announcement issued by the Government Printing Office would indicate:

WASHINGTON—The U.S. Government Printing Office (GPO) and the National Archives’ Office of the Federal Register (OFR) launch the Federal Register 2.0 prototype, a user-friendly online version of the Federal Register. This daily journal of government has provided the public with access to government information and federal regulations for the past 75 years. Federal Register 2.0 features a new layout that organizes the content by topics similar to a newspaper Web site. The site displays individual sections for Money, Environment, World, Science and Technology, Business and Industry, and Health and Public Welfare. The Web site has improved search and navigation tools to guide readers to the most popular topics and relevant documents. Users can submit comments and stay connected through social media.

Although this news is quite interesting and evidences a strong commitment on the part the American government to keep the public informed about those regulatory matters which may have an impact upon the lives of US Citizens and/or lawful permanent residents, it should also be noted that the Federal Register has a distinguished history of providing information to the public in print form. To quote the aforementioned publication further:

The first copy of the Federal Register came off GPO presses on March 14, 1936. GPO partners with OFR to provide the information in the Federal Register to the American people in both print and electronic form. GPO coordinated the development aspects of the new Web site in collaboration with OFR. GPO’s Federal Digital System (FDsys), a content management system and preservation repository, feeds content into Federal Register 2.0 and acts as the holder of the official content and archived information.


“Federal Register 2.0 is a landmark achievement for the National Archives, OFR and GPO,” said Public Printer Bob Tapella. “This is an example of how the legislative branch and executive branch work together to make government information available and easily accessible for the American people. For 75 years, GPO has never missed a print deadline for the Federal Register and now we look forward to working with OFR to support Federal Register 2.0.”


“Federal Register 2.0 is an advance in the open government initiative of the Obama administration by being able to make the  Federal Register readily available and easily understood,” said Director of the Federal Register Ray Mosley. The GPO is the federal government’s primary centralized resource for gathering, cataloging, producing, providing, authenticating, and preserving published U.S. government information in all its forms. GPO is responsible for the production and distribution of information products and services for all three branches of the federal government.

In the information age, knowledge truly equates to power. Therefore, it is admirable that the government took the initiative in attempting to provide a user friendly platform for those seeking information about pending, as well as enacted, Federal rules. Although there are some who believe that the Federal Register should remain exclusively in print form, it seems prudent and far-thinking for the government to provide online services to Americans as well as other interested parties. With that in mind, there are those who feel that there could be a possible “information overload” scenario in which Americans, inundated by a constant barrage of news and media, will not be receptive to initiatives such as this. It is this author’s opinion that increasing information for public consumption will generally have a net positive impact upon the American population as a whole.

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27th July 2010

This author has recently been informed that the United States Citizenship and Immigration Service (USCIS) is poised to conduct a thorough policy review which will delve into USCIS’s customer service procedures and look for ways to improve the US immigration system. As a first step, USCIS announced that a public survey would be conducted. Below are excerpts from a USCIS press release (distributed by the American Immigration Lawyers Association [AILA]), which outlines the purpose of the policy review and provides guidance regarding further methods of information gathering in an effort to improve USCIS customer service policies:

WASHINGTON— U.S. Citizenship and Immigration Services (USCIS) has announced the results of a public survey that launched the USCIS Policy Review, an unprecedented, top-to-bottom examination of the agency’s adjudication and customer-service policies. The survey results helped USCIS select the first 10 issue areas to address in the agency-wide review.


Informed by the survey responses, the agency’s needs, and input from the workforce, the USCIS Policy Review will begin by examining policies in the following issue areas: National Customer Service Center; Nonimmigrant H-1B; Naturalization and Citizenship; Employment-based Adjustment of Status; Family-based Adjustment of Status; Employment-Based Preference Categories 1, 2 and 3; Refugee and Asylum Adjustment of Status; Form I-601; General Humanitarian; and Employment
Authorization and Travel Documents.


“As an agency, we must achieve consistency in the policies that guide us and in how we implement them for the public benefit,” said USCIS Director Alejandro Mayorkas. “To achieve that critical goal, we are partnering with the public in this major undertaking to review our adjudication and customer-service policies. We will work collaboratively toward the shared objectives of consistency, integrity, transparency and efficiency.”


In April 2010, USCIS issued a survey that asked any interested member of the public, as well as its own workforce, to help identify the issue areas that the agency should examine first. USCIS received approximately 5,600 survey responses from diverse stakeholders. Those results are now available, along with a summary developed by USCIS’s new Office of Performance and Quality.

Some have questioned the need for such a survey as there are those who feel that USCIS’s current policies do not need improvement. Clearly, this is not the official view of USCIS as can be evidenced by the following statement:

On April 15, 2010, U.S. Citizenship and Immigration Services (USCIS) launched the USCIS Policy Review, an unprecedented, top-to-bottom examination the agency’s adjudication and customer service policies with the engaged participation of the USCIS workforce and the public. USCIS issued a survey that asked any interested member of the public, as well as its own workforce, to help identify the issue areas that the agency should examine first. Nearly 5,600 stakeholders responded to the survey, representing current immigrant and non-immigrant visa holders, employers, immigration attorneys and advocates, among others, in addition to responses from approximately 2,400 members of the USCIS workforce. Those responses helped USCIS select the first 10 issue areas to address in the agency-wide review. USCIS is now convening working groups to review the first 10 issue areas.

The press release went further than merely providing information regarding this important policy review. In an effort to provide the public with relevant information, the United States Citizenship and Immigration Service (USCIS) also provided a “Q & A” component to the recent press release. The following are questions and answers arising in connection with USCIS’s policy review initiative:

Questions and Answers


Q. What is the USCIS Policy Review?


A. The USCIS Policy Review is a comprehensive review of policy, guidance, and procedures related to our adjudications and customer service. The Policy Review is divided into four stages: (1) assembling and categorizing existing policy documents; (2) deciding which issue areas to review first, with input from surveys of the workforce and external stakeholders; (3) completing a review of policies in each identified issue area; and (4) consolidating and publishing updated policy documents (as appropriate), once approved.


Q. How does the Policy Review advance major goals already established for USCIS and the Department of Homeland Security (DHS)?


A. In the 2010 Quadrennial Homeland Security Review (QHSR), DHS identified the effective administration of the immigration system as a key priority. In particular, the QHSR emphasized the importance of a system that produces fair, consistent and prompt decisions for the public it serves. The Policy Review is designed to ensure that USCIS meets that standard in its work.


Q. How does the Policy Review relate to USCIS’s responsibilities and authority under federal law?


A. By law, USCIS is charged with setting policies and priorities for the administration of immigration services. USCIS will be reviewing those policies in our current effort. If the Policy Review identifies the need for proposed regulatory changes, we will fully engage in the federal rulemaking process. The purpose of the Policy Review is not to develop proposed changes to the immigration statutes established by Congress.

Q. Will the Policy Review change USCIS policy?


A. In many cases, yes. Working groups will evaluate policy based on USCIS goals, legal requirements and stakeholder concerns. These working groups will draft updated policy documents and proceed through USCIS’s policy-approval process. If the Policy Review identifies the need for proposed regulatory changes, USCIS will fully engage in the federal rulemaking process.


Q. What happens to existing policies during the course of the Policy Review?


A. While the Policy Review is underway, all policies already in place remain in full force and will be honored. From time to time in the course of the agency’s operations, policy issues may arise that require immediate attention outside the course of the formal Policy Review. We will continue to give these issues immediate attention as the need arises.


Q: What prompted the Policy Review?


A. USCIS is committed to ensuring that our policies are consistent and up to date. To that end, the agency has launched the USCIS Policy Review to examine our policies with input from the public it serves and from its workforce.


Q. Has USCIS previously undertaken a comprehensive review of its policies?


A: No. The effort to undertake a top-to-bottom review of our adjudication and customer service policies is an unprecedented initiative for USCIS.


Q. How will USCIS seek the public’s input during the Policy Review?


A. In keeping with our commitments to customer service and transparency, USCIS will engage practitioners, advocates, businesses, applicants, and other interested stakeholders throughout the course of the Policy Review. The survey was the first opportunity for stakeholders to participate. As we review policies in specific issue areas, we will offer a number of further opportunities for the public to offer input. For example, in some issue areas, we will conduct public meetings to solicit stakeholders’ views on specific policy matters. In many cases, we will also published drafts of new or revised policy memoranda on our website for public comment, now a regular step in USCIS’s policy development process.


Q. What did the survey ask?


A. The survey asked any interested member of the public, as well as the USCIS workforce, to help identify the issue areas that the agency should examine first. The survey also included comment sections.


Q. How many people responded to the survey?


A. Nearly 5,600 external stakeholders responded to the survey, representing current immigrant and nonimmigrant visa holders, employers, immigration attorneys and advocates, among others. Nearly 2,400 members of the workforce from USCIS offices worldwide also participated in the survey.


Q. How has USCIS used the survey results?


A. The survey results helped USCIS identify which issue areas to address first in its agency-wide review. USCIS considered quantitative and qualitative feedback from the surveys along with operational and programmatic needs to develop the initial list of issue areas for review.

Q. In addition to the survey, what progress has USCIS made in the Policy Review?


A. USCIS has assembled thousands of existing policy documents and categorized them into issue areas. USICS is now convening internal working groups to begin examining and evaluating the policy documents in the first 10 issue areas.


Q. What is the expected length and scope of the Policy Review?


A. The Policy Review is a multi-year effort designed to work thoughtfully through thousands of policy documents, many of which overlap or complement each other, in collaboration with the USCIS workforce and external stakeholders. New policy documents, once drafted, will be submitted through the USCIS clearance process, with many posted on the USCIS website for public comment.

At the time of this writing, there have been relatively few changes in the law regarding US Family Visas. Although administrative and regulatory changes have had a significant impact upon processing of the US Marriage Visa and the US fiance visa. That said, the recent fee increase for Consular Processing of the K1 visa (fiance visa) and the administrative closure of K3 Visa applications by the National Visa Center were promulgated by the Department of State (DOS) as there has been little recent change in the fee structure and administration of USCIS’s adjudication of family based visa petitions.

This author is of the opinion that this unprecedented policy review should be welcomed as it may herald further improvements to the American Immigration system and provide immigrants and Americans with better overall service. One must applaud USCIS for taking the initiative and promoting positive change.

For related information from the perspective of Southeast Asia please see: K1 Visa Thailand.

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26th July 2010

This blog usually focuses upon the international facets of US Immigration law. However, sometimes, there is news regarding internal immigration policy that impacts the entire field of  American Immigration law. The United States Immigration and Customs Enforcement Service (also known by the acronym USICE or more commonly referred to as ICE) is tasked with apprehending and detaining aliens who are unlawfully present in the United States of America. From an American attorney‘s perspective, an important part of the practice of law is knowledge of one’s client’s whereabouts. In a recent press release, ICE announced that a new locator system has be designed to provide interested parties with the current location of a detained alien. To quote the press release directly:

ICE announces launch of Online Detainee Locator System

WASHINGTON – U.S. Immigration and Customs Enforcement (ICE) announced today the launch of ICE’s Online Detainee Locator System (ODLS), a public, Internet-based tool designed to assist family members, attorneys and other interested parties in locating detained aliens in ICE custody. The creation and implementation of the ODLS is a concrete example of ICE’s commitment to detention reform.

The ODLS is located on ICE’s public website, http://www.ice.gov, and provides users with information on the location of the detention facility where a particular individual is being held, a phone number to the facility and contact information for the ICE Enforcement and Removal Operations office in the region where the facility is located. A brochure explaining how to use the ODLS is also available on the website in the following languages: English, Spanish, French, Mandarin, Vietnamese, Portuguese, Russian, Arabic and Somali.


“The ODLS is an easy, accessible tool that allows family members and counsel to locate an individual in ICE custody in a matter of minutes,” said Phyllis Coven, acting director of ICE’s Office of Detention Policy and Planning. “ICE is making great strides in our effort to translate the principles of reform into innovative, practical and timely solutions.” ODLS users will be able to locate detained aliens by two different search methods. First, users can search by entering an individual’s alien registration number, also known as their “A” number, and their country of birth.

Users can also search by entering an individual’s first name, last name, country of birth and date of birth. Since the ODLS will be available for use on ICE’s public website, the agency is committed to ensuring detainee privacy while making ODLS a useful tool for family members, attorneys and other related parties.

With relatively recent advances in technology it is amazing to see how much more streamlined the American Immigration system can be. Hopefully, this new program will provide future immigration attorneys with more tools to better serve their clients.

For related information please see: US Visa Thailand.

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23rd July 2010

This blog routinely posts information regarding LGBT Immigration and announcements regarding the campaign for equal immigration rights for same-sex bi-national couples. In a recent blog posting on the Stonewall Democrats blog, it was announced that members of the United States House of Representatives are continuing to call for equal immigration rights for same-sex as well as different-sex couples. To quote directly from the blog:

Supporters of immigration and LGBT rights are renewing their calls on Congress to pass comprehensive immigration reform legislation this year that includes protections for bi-national same-sex couples.
At a press conference Thursday on Capitol Hill, several U.S. House members emphasized the importance of passing legislation to make the nation’s immigration laws more fair and enable LGBT Americans to sponsor their foreign partners for residency in the United States.
The strengthened call for passing comprehensive immigration reform comes as limited time remains in the legislative calendar for this Congress, raising questions about whether lawmakers will be able to address major legislation such as immigration reform this year.
Same-sex partners currently have no recourse under any portion of family law in the U.S. immigration code. The policy threatens to keep an estimated 36,000 bi-national same-sex couples from remaining together in the United States.
Among those who spoke in favor of passing immigration reform inclusive of this language is Rep. Jerrold Nadler (D-N.Y.), who sponsors the Uniting American Families Act, a standalone bill that would address the situation for LGBT families.
Nadler said passing immigration reform that includes protections for the LGBT community is “absolutely essential.”
“In particular, binational LGBT couples must be granted the right to sponsor their permanent partners for immigration, just as other committed and straight married couples can,” he said.
Rep. Mike Honda (D-Calif.), the sponsor of another UAFA-inclusive bill known as the Reuniting Familes Act, also addressed the importance of passing such legislation.
Honda said “ending discrimination” against bi-national same-sex couples is “in line with American values and is good for our economy.”
“We know that American workers who have family by their side are happier, healthier and more able to succeed with this essential social safety net,” he said.
Rep. Luis Gutierrez (D-Ill.), a pro-immigrant lawmaker, said passing inclusive legislation is politically viable.
“On a more political note, I am confident that we can pass immigration reform that includes the provisions of UAFA this year,” Gutierrez said, according to his prepared remarks. “Including UAFA makes the tent that much bigger and makes the coalition that much stronger.”
Late last year, Gutierrez introduced immigration legislation that was seen as a more liberal alternative to the working bill expected for introduction in Congress. Although his legislation at the time didn’t include UAFA-like language, he recently revealed his support for including bi-national LGBT families as part of immigration reform.
Other lawmakers who appeared at Thursday’s event to show their support for such legislation were Rep. Jared Polis (D-Colo.), a gay lawmaker and proponent of immigration reform, as well as Rep. Mike Quigley (D-Ill.).
Erwin de Leon, a gay D.C. resident and Blade contributor, also called for UAFA-inclusive legislation at the press conference.
He said passage of such a bill would help him obtain a green card to remain in the United States with his spouse, whom he married earlier this year in D.C.
“Thanks to vagaries of the U.S. immigration system, I still do not have my green card, even though I consider the United States my home, have lived here legally for several years and in my heart know that I am as American as my native-born cousins,” he said.
Along with lawmakers, a coalition of 37 organizations — including LGBT, immigration and faith-based groups — joined in the the chorus of voices calling on Congress to act on immigration reform.
Immigration Equality, one of the organizations working to pass UAFA, is a leading voice among these groups. Other LGBT groups in this coalition include the Family Equality Council, the National Gay & Lesbian Task Force and the Human Rights Campaign.
Rachel Tiven, Immigration Equality’s executive director, said current law is taking LGBT families “and sending them into exile.”
“Together we will fight for immigration reform that protects all families,” she said. “We will organize, we will protest, we will demand that the Uniting American Families Act and the Reuniting Families Act be part of a just, humane and comprehensive immigration reform bill.”
Still, challenges remain in passing UAFA-inclusive legislation. Patrick Egan, a gay political science professor at New York University, said the chances of Congress passing reform inclusive of LGBT families are “pretty low.”
“It’s going to be very difficult to get the 60 votes together in the Senate to move the bill forward and they’re going to be reluctant to put anything in there that jeopardizes its passage,” Egan said. “And this, unfortunately, is one of those issues that can cause you to shed a few votes on the Republican side. And I would be very surprised if that would be in any bill that gets passed by the Senate and the House.”
Sean Theriault, a gay government professor at the University of Texas, Austin, said “there is no chance” that an immigration bill immigration reform will pass this year whether or not it includes UAFA-like language.
“The reason that Democratic leaders and the White House have begun talking about immigration is because it divides Republicans from Hispanics,” he said. “On that score alone, the bill very well may contain [this] language. It is easy to be in favor of wholesale reform when the chances of it passing our zilch.”
Still, Theriault said if Democrats had to start making concessions to pass immigration reform, he couldn’t imagine “they would sacrifice the entire bill for inclusive language.”
Capitol Hill observers expect the U.S. Senate to debate and vote on comprehensive immigration reform legislation before a bill is taken up in the U.S. House. Sen. Chuck Schumer (D-N.Y.), chair of the Senate Judiciary immigration subcommittee, is expected to introduce the legislation in the Senate.
While the Senate bill has yet to be introduced, framework for the legislation made public earlier this year shows support for passing a bill inclusive of LGBT families.
In a brief interview with the Blade on Capitol Hill late last month, Schumer noted the UAFA language was in the framework for immigration reform legislation. Asked whether the provision would be in the bill upon introduction, Schumer replied, “I believe so.”
“I believe in it and I want to see it stay in,” Schumer said.
Asked when he would introduce the legislation, Schumer replied, “We have the proposal and we’re still trying to get some Republican support.”
Schumer said he’s talking to several Republican senators who would be original co-sponsors for the legislation, but declined to identify any lawmakers.
Although no U.S. senator attended Thursday’s press conference, Tiven said advocates wanted to emphasize the support of U.S. House members for UAFA-inclusive legislation.
“We wanted to show what the House is doing to match the Senate’s leadership on inclusive comprehensive immigration reform,” she said.
Julie Kruse, policy director for Immigration Equality, said her organization is planning additional events throughout the country to draw attention to passing UAFA-inclusive comprehensive immigration legislation.
She said cities in Florida, California, Texas, New York and Minnesota are potential places where these events would take place.

Supporters of immigration and LGBT rights are renewing their calls on Congress to pass comprehensive immigration reform legislation this year that includes protections for bi-national same-sex couples.  At a press conference Thursday on Capitol Hill, several U.S. House members emphasized the importance of passing legislation to make the nation’s immigration laws more fair and enable LGBT Americans to sponsor their foreign partners for residency in the United States.  The strengthened call for passing comprehensive immigration reform comes as limited time remains in the legislative calendar for this Congress, raising questions about whether lawmakers will be able to address major legislation such as immigration reform this year.  Same-sex partners currently have no recourse under any portion of family law in the U.S. immigration code. The policy threatens to keep an estimated 36,000 bi-national same-sex couples from remaining together in the United States.  Among those who spoke in favor of passing immigration reform inclusive of this language is Rep. Jerrold Nadler (D-N.Y.), who sponsors the Uniting American Families Act, a standalone bill that would address the situation for LGBT families.  Nadler said passing immigration reform that includes protections for the LGBT community is “absolutely essential.”  “In particular, binational LGBT couples must be granted the right to sponsor their permanent partners for immigration, just as other committed and straight married couples can,” he said. Rep. Mike Honda (D-Calif.), the sponsor of another UAFA-inclusive bill known as the Reuniting Familes Act, also addressed the importance of passing such legislation.  Honda said “ending discrimination” against bi-national same-sex couples is “in line with American values and is good for our economy.”

Frequent readers of the blog will recall the the Uniting American Families Act (UAFA) is considered to be a key piece of legislation for those Americans seeking immigration benefits for their same sex foreign partner.

It should be noted that many States in the USA have either promulgated legislation legalizing same sex marriage or creating civil unions for same sex partners. However, notwithstanding the fact that same sex marriages may be solemnized and recognized by a State, the Federal government, based upon legislation such as the Defense of Marriage Act (DOMA), refuses to recognize these marriages for purposes of awarding immigration benefits. Therefore, as of the time of this writing, there is no “Same Sex Visa” accorded to LGBT bi-national couples. However, there are currently cases pending in the US Courts which may overturn this practice as many feel that this type of discrimination violates States’ Rights as well as the Equal Protection Clause of the US Constitution. However, the ultimate adjudication of these issues may have to be addressed by the United States Supreme Court if legislation is not promulgated which would grant equal immigration benefits to the same sex partner of a US Citizen or Lawful Permanent Resident.

For further details about US visas for different-sex couples please see: K1 visa.

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22nd July 2010

This author recently discovered that the United States Embassy in China has announced that those seeking non-immigrant visas to the United States of America may seek such travel documents at any US Consulate in China. To quote directly from the website of the American Embassy in China:

Residents of China may apply for a non-immigrant visa at any U.S. Consular Section in China, regardless of the province or city of residence.  We have Consular Sections at the U.S. Embassy in Beijing and the U.S. Consulates General in Chengdu, Guangzhou, Shanghai, and Shenyang.

Although the basic application process is the same, specific times and application procedures at each visa issuing office can vary.  Before applying for a visa, applicants should check each post’s web site for procedures specific to that post.

The U.S. Embassy and Consulates in China provide the following estimates of the next available non-immigrant visa interview appointment date for your reference.  Please be aware appointments are scheduled continuously, and the next available appointment date can change dramatically on short notice.

All appointments must be booked through the Visa Information Call Center at 4008-872-333, which has the most current information about appointment wait times.  Specific appointment procedures can be found here: http://beijing.usembassy-china.org.cn/niv_appointment.html.

The information below is a rough guide only.  Please note this information was last updated on 21 Jul, 2010.

Business/ tourist visa appointments (B1, B2, and B1/B2 visa classes)

As of the date above, this post is booking… … appointments for the following date:
U.S. Embassy Beijing 3-Aug
U.S. Consulate General Chengdu 19-Aug
U.S. Consulate General Guangzhou 17-Aug
U.S. Consulate General Shanghai 23-Aug
U.S. Consulate General Shenyang 31-Aug


Student (F, M, J visa classes)

As of the date above, this post is booking… … appointments for the following date:
U.S. Embassy Beijing 28-Jul
U.S. Consulate General Chengdu 6-Aug
U.S. Consulate General Guangzhou 27-Jul
U.S. Consulate General Shanghai 19-Aug
U.S. Consulate General Shenyang 4-Aug

Appointment wait times for particular groups such as petition-based employment applicants, group leisure tours, Amcham applicants, and public affairs passport holders may be different.  Please contact the Visa Information Call Center at 4008-872-333 for more information.

If you require an earlier visa appointment for immediate travel for urgent medical treatment, to meet the start date on your I-20 or DS-2019 form, or for another emergency reason, please see our information about expedited appointments http://beijing.usembassy-china.org.cn/niv_expedite.html.

The information on how to apply can be found below:

The U.S. Consulate in Chengdu:
http://chengdu.usembassy-china.org.cn/appointment.html

The U.S. Consulate in Guangzhou:
http://guangzhou.usembassy-china.org.cn/niv-how-to-apply.html

The U.S. Consulate in Shanghai:
http://shanghai.usembassy-china.org.cn/how_to_apply.html

The U.S. Consulate in Shenyang:
http://shenyang.usembassy-china.org.cn/consular5.html

The U.S. Consulate in Hongkong:
http://hongkong.usconsulate.gov/niv_apply.html

It is interesting to note this recent policy shift as most US Diplomatic and Consular missions in other countries require the applicant to apply for their non-immigrant visa at the Consulate with jurisdiction over the place of residence of the applicant. However, these jurisdictional rules may be altered by officials of the Department of State depending upon the prevailing circumstances in the host country. That said, China is a unique country insofar as it has a large landmass as well as a massive population. As a result, special considerations probably ought to be taken into account when discussing those issues associated with optimally serving those Chinese nationals wishing to travel to the USA.

As the economic and diplomatic relationships between the USA and China become increasingly close, Immigration matters will become more important for those conducting Sino-American business or for those from China who simply wish to visit the United States for recreational purposes.

It should be noted that the above announcement would seem to only apply to those seeking non-immigrant visas such as the B2 visa or the F1 visa. Therefore, the above information does not appear, at the time of this writing, to be applicable to those seeking an Immigrant visa such as a CR1 Visa or an IR1 Visa. Furthermore, it would also seem as though those seeking visa benefits under the K visa category (K1 visa, K2 visa, K3 Visa, K4 visa, etc.) will not be able to “forum shop” for the Post of their choice for the ultimate visa interview.

For more information about US Immigration from China please see: US Visa China.

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21st July 2010

In a recent press release from the United States Citizenship and Immigration Service (USCIS) it was announced that a fee waiver form has been proposed in an effort to streamline the process whereby indigent aliens in the USA apply for relief from Immigration fees. To quote the announcement, as promulgated by USCIS and distributed by the American Immigration Lawyers Association (AILA):

U.S. Citizenship and Immigration Services (USCIS) has proposed for the first time a standardized fee waiver form in an effort to provide relief for financially disadvantaged individuals seeking immigration benefits…

Apparently, the current version of the fee waiver form is the product of time, research, and study as USCIS has attempted to provide relief to those who cannot pay the government processing fees while still maintaining the integrity of the overall system. To quote the aforementioned announcement further:

The proposed fee waiver form is the product of extensive collaboration with the public. In meetings with stakeholders, USCIS heard concerns that the absence of a standardized fee waiver form led to confusion about the criteria that had to be met as well as the adjudication standards. USCIS worked with stakeholders in developing the fee waiver form that is now posted for comment. “Our goal is to bring clarity and consistency to our processes,” said USCIS Director Alejandro Mayorkas. “We are doing so now in the critical area of providing the financially disadvantaged with access to immigration benefits.”

Mayorkas further stated that the method by which the proposed fee waiver form was devised – through extensive collaboration with the public – will be a hallmark of his approach to improving agency processes. Currently, applicants requesting a fee waiver must do so by submitting an affidavit or unsworn declaration requesting a fee waiver and stating the reasons why he/she is unable to pay the filing fee. The new proposed fee waiver form is designed to verify that an applicant for an immigration benefit is unable to pay the fee for the benefit sought. The proposed form provides clear criteria and an efficient way to collect and process the information.

It is admirable to see USCIS taking an active interest in providing relief to those customers who are truly in need. That said, it remains to be seen how this proposal will be received particularly in light of the fact that USCIS has recently announced shortfalls in its budget. Some feel that providing this type of relief runs counter to the notion of USCIS as a self-funded agency. In any case, this author hopes to see this proposal passed if it increases the probability of providing much needed assistance to those wishing to travel to, or remain in, the United States of America for bona fide reasons.

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20th July 2010

A Thai prenuptial agreement (also referred to as a Thai prenup) can provide a great deal of protection for individuals should a marital union be dissolved. A premarital agreement can also be very beneficial because it can provide certainty and transparency for the parties to a marriage. That said, a prenuptial agreement (Thai or otherwise) should be drafted in such a way that it provides protection for one’s property or real estate holdings as well as corporate assets and financial instruments. In Thailand, ensuring that a prenuptial agreement comports with all applicable formalities can be difficult which is why it is always prudent to consult with a Thai lawyer regarding such matters. For those foreign nationals with assets outside of the Kingdom of Thailand it may also be wise to consult with an attorney in the jurisdiction where one resides or maintains property in order to take all reasonable measures to ensure the integrity of one’s estate.

In Thailand, a prenuptial agreement must be registered at the time of the marriage in order for it to be enforceable by Thai courts. In a way, it may be better to think of prenuptial agreements as simply “nuptial  agreements” as the agreement does not exist until the simultaneous registration of that document and the marriage. Many Americans in Thailand opt to register a prenuptial agreement prior to the marriage that will act as a basis for a US Marriage Visa.

Corporate Assets

For those with corporate assets in the form of stocks, bonds, mutual funds, or options it is always prudent to seek information regarding a prenuptial agreement as such an agreement could protect one’s corporate assets in the event of a marital dissolution. In Thailand, those who have an ownership interest in a Thai company are wise to research prenuptial agreements prior to marriage in order try to maintain one’s holding in the event of a divorce.

Thai Property

Although foreign nationals cannot own land in Thailand, there are other property interests that one may have pursuant to Thai law, these include, but are not limited to: Thai Condo ownership, Thai usufructs, Thai 30 year leases, etc. Those with Thai real estate should consider a Thai prenup prior to marriage registration.

Marriage is a major event in one’s life. It can also have a significant impact upon the legal posture of one’s assets and interests. Therefore, those with an eye towards marriage should consult with a family lawyer within one’s local jurisdiction prior to marriage registration in order to help ensure that one’s assets are properly protected.

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