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Archive for the ‘Adjustment of Status’ Category
23rd AUG 2010
Laypeople sometimes confuse the process of adjustment of status with the change of status process. This confusion is directly related to the subject of this post: change of status from US Tourist Visa status to US Student Visa status. Many are under the mistaken impression that it is legal to attend school in the USA on a tourist visa. This is not the case. In a recent announcement promulgated by the US Department of Homeland Security and distributed by the American Immigration Lawyers Association (AILA), the question was posed: “Is it permissible to enroll in school while in B-1/B-2 status?” The answer is quoted directly from the aforementioned announcement:
No, it is not. The regulations, at 8 CFR 214.2(b)(7), specifically prohibit study in the United States while in B-1 or B-2 status.
Before enrolling in classes, individuals who are in B-1 or B-2 status must first acquire F-1 (academic student) or M-1 (vocational student) status. Enrolling in classes while in B-1/B-2 status will result in a status violation. Individuals in B-1 or B-2 status, who have violated their nonimmigrant status by enrolling in classes, are not eligible to extend their B status or change to F-1 or M-1 status. Theseregulations provide no exceptions.
If you currently hold B-1 or B-2 nonimmigrant status and would like to enroll in classes, you may apply for a change of status to F-1 or M-1, as appropriate, if:
You have not yet enrolled in classes
Your current status has not expired
You have not engaged in unauthorized employment
To change your nonimmigrant status from B-1/B-2 to F-1 or M-1, you must file an Application to Extend/Change Nonimmigrant Status (Form I-539), and include the required fee and documents listed in the filing instructions.
Please Note:
If you enroll in classes before USCIS approves your Form I-539, you will be ineligible to change your nonimmigrant status from B to F or M. If you are applying to extend your B-1/B-2 stay and you have already enrolled in classes, USCIS cannot approve your B-1/B-2 extension because of the status violation.
For some, the change of status process can be confusing and difficult as few are familiar with DHS forms and protocols, but for those who obtain an F1 visa, the educational rewards can offset the time and resources expended obtaining the visa. Those who are not eligible to receive a change of status may find the following excerpt from the previously mentioned announcement helpful:
If you are not eligible to change your nonimmigrant status to F-1 or M-1, you may apply for an F-1 or M-1 visa at a consular post abroad…We encourage all students and prospective students to work closely with their designated school official (DSO) to coordinate the timing of applying for change of status and enrolling in classes.
Those staying in the United States on any type of visa are required by law to fully comply with the terms of their visa. Failure to do so could lead to severe civil and criminal penalties. Those wishing to travel to the United States of America are well advised to seek the type of visa that truly comports with proposed activity in the USA. As extraneous circumstances can cause unforeseen problems it may be necessary to apply for a change of status if one’s current visa does not provide proper benefits.
Adjustment of status, which can be confused with changing status, is the process of switching a foreign national from a non-immigrant visa to Lawful Permanent Residence (Green Card). Those traveling to the United States of America on a K1 visa must adjust their status within 90 days of their arrival after their marriage to the US Citizen petitioner.
For more about adjusting status please see: adjustment of status.
27th MAY 2010
USCIS Issues New Employment Authorization Document (EAD)
Posted by : admin
For those who bring a foreign fiance or fiancee to the United States of America, an often asked question is: “What if my fiancee wants to work in the USA prior to her adjustment of status?” The answer to this question is somewhat complicated. When a foreign fiancee or spouse enters the United States on a non-immigrant K1 visa or K3 Visa, the entrant is generally not authorized to take up employment in the USA until that alien either adjusts status to permanent residence (Green Card) or obtains employment authorization. Recently, the United States Citizenship and Immigration Service (USCIS) announced that, in an effort to decrease immigration fraud, new Employment Authorization Documents are to be issued. The following is a direct quote from USCIS’s official statement:
U.S. Citizenship and Immigration Services (USCIS) today announced that it has revised the Employment Authorization Document (EAD), or Form I-766, to incorporate the addition of a machine-readable zone on the back of the card.. This update to the EAD is part of USCIS’s ongoing efforts to deter immigration fraud. Starting May 11, USCIS began issuing the revised EAD cards. The machine-readable zone is compliant with International Civil Aviation Organization standards. USCIS also removed the two-dimensional bar code on the backside of the card and moved the informational box of text to just beneath the magnetic stripe on the card. The revised card retains all of its existing security features.
In most cases, foreign fiancees or spouses of US Citizens opt to wait for permanent residence before taking up employment. However, in some instances this is not the case as there are increasing numbers of foreign fiancees and spouses who work for multi-national companies. These international businesses sometimes wish to have their non-US Citizen employee start work in the USA as soon as they can. Therefore, there are situations in which speedy employment authorization is a necessity.
In the past, K3 Visa holders could seek employment authorization at the port of entry when they entered the USA. As the K-3 Visa is being increasingly phased out, this method of receiving employment authorization is being employed less frequently. Another issue that often arises in the context of Employment Authorization is that of advance parole. Holders of a US fiance visa cannot leave the United States prior to adjustment of status and simultaneously maintain their lawful K1 status unless they apply for, and receive, an advance parole travel document. In some cases, couples making an application for advance parole will also make an application for an EAD in order to work in the USA.
30th APR 2010
US Lawyer Thailand: Confidentiality Issues
Posted by : admin
Repeatedly, this author uses this blog as a platform to try to educate the public regarding the US visa process and the problems that can arise during that process. In many cases, people are simply unaware of the rules regarding US visa issuance and this blog attempts to provide relevant information that readers may find beneficial. That being said, another frequently discussed topic is the unauthorized practice of law by “visa companies” and “visa agents” or those claiming to be American attorneys. This is not simply a tirade against such practices, but is intended to provide information regarding the detrimental impact that these individuals can have upon the interests of their “clients”.
Under section 292.1 of the United States Code of Federal Regulations a licensed attorney is entitled to represent clients before the United States Department of Homeland Security, specifically the United States Citizenship and Immigration Service (USCIS) which is tasked with adjudicating US visa petitions. Many are unaware of the fact that those who assist individuals in preparing visa petitions are engaging in the unauthorized practice of law if they are not: licensed to practice law in at least one US jurisdiction while being eligible to practice law in all US jurisdictions or certified by the Board of Immigration Appeals (BIA).
Licensure is no small matter, especially for those individuals who are “represented” by those claiming to be attorneys who are not, in fact, licensed. For example, if an American talks to an unlicensed individual about sensitive matters, then such communications would not be confidential and also would not be protected under the attorney/client privilege. If one is communicating in confidence to a licensed attorney, then such communication is “out of bounds” for US Courts. However, the same communications with one who is unlicensed could be used as evidence in a US court proceeding. Therefore, licensure is extremely important particularly in US Immigration matters involving a legal ground of inadmissibility or an I-601 waiver as certain information could be very detrimental to clients’ interests and if imparted to a licensed American attorney would be confidential, but if imparted to an unlicensed “fly by night” operator such information could be used against the client at a later date.
For all of these reasons, when an American is outside of the USA it is always prudent to check the credentials of anyone claiming to be an attorney from the United States. An individual can provide adequate credentials if they can show their license to practice law before at least on State Supreme Court in the US, or a Federal license to practice law in the USA, or a license to practice law in one of the US territorial jurisdictions (Guam, Puerto Rico, the US Virgin Islands, etc). Anyone who refuses to provide any such credentials and yet still asserts that they are an American attorney should be avoided until proof of credentials can be provided.
For further information about US Immigration from Thailand please see: K1 Visa Thailand.
6th APR 2010
USCIS Promulgates New Naturalization Video
Posted by : admin
The United States Citizenship and Immigration Service (USCIS) is responsible for overseeing the United States naturalization process. Each year, many Immigrants in the United States take advantage of the ability to naturalize to US Citizenship. For some, the Naturalization test is a daunting prospect. In order to help inform the public, USCIS has provided a video on their website that can be of assistance to those looking into the naturalization process. To quote the USCIS website directly:
“The USCIS Naturalization Interview and Test was developed as an informational resource for individuals interested in learning more about the naturalization process. The 16-minute video provides an overview of the naturalization process including the eligibility requirements, the application process, preliminary steps, the naturalization interview, the English tests and the U.S. history and government test (civics). The video includes two simulated interviews between applicants and USCIS Officers. Individuals applying for naturalization may use this video as a reference tool to prepare for the naturalization interview. Teachers and volunteers can use this video to complement classroom instruction.”
Although naturalization is the most common method employed by foreign nationals seeking US citizenship. Few are aware that there is another method of obtaining Citizenship for the children of United States Citizens who did not receive Citizenship at birth. The Child Citizenship Act of 2000 provides a legal means for the minor children of United States Citizens to obtain American Citizenship.
Another interesting program for those interested in becoming United States Citizens is the expedited naturalization program for those foreign nationals enlisted in the United States military. The expedited naturalization process is a major benefit to foreign nationals and their families who choose to serve in A the United States trmed Forces.
Some are unaware that those who gained United States Lawful Permanent Residence based upon marriage are entitled to faster naturalization. For those who enter the United States and take up Permanent Residence based upon employment, the naturalization process generally takes about 5 years. However, for those married to a US Citizen the process takes 3 years from the time Permanent Residence is approved. This means that the naturalization “clock” starts running for K1 visa holders after the adjustment of status is approved. A CR1 visa holder who enters the country with conditional lawful permanent residence at entry begins accruing presence that can be used toward naturalization at entry. This being said, a CR1 visa holder must still get a lift of conditions before they will be entitled to a 10 year “Green Card.”
For information about US Immigration from Thailand Please See: American Visa Thailand.
1st APR 2010
Upcoming Cases to Address the Issue of K2 visas and Adjustment
Posted by : admin
As we have previously discussed on this blog, the K1 visa (the category that is used to denote the US fiance visa) has a derivative counterpart that allows for the children of a foreign fiance or fiancee to travel to the United States with their parent. From a legal standpoint, there is nothing particularly interesting about this, but it does become interesting when holders of K2 Visas apply for adjustment of status in order to obtain United States Lawful Permanent Residence also referred to as a “Green Card.” Under the current rules, there is some question as to whether or not a K2 visa holder is allowed to adjust status after they turn 21 years of age. In a recent article posted on the Immigration Slip Opinion Blog, the author noted that issues surrounding K2 adjustment have yet to be fully addressed, but upcoming cases before the Board of Immigration Appeals (BIA) may clarify this vexing issue:
“‘Aging out’ issues: K-2 and CSPA
There are at least seven cases currently before the BIA that raise the question of whether Congress intended that a K-2 visa holder, admitted to the United States as the child of a fiancé(e) of a U.S. citizen, would become ineligible for adjustment of status upon turning 21. In briefs submitted as amici curiae, the American Immigration Council (Immigration Council) and AILA argue that such a result would produce absurd results and could not have been Congress’s intent. After all, the statute permits – and DHS practice allows – a child of a fiancée to enter the country on a K-2 visa up until his or her 21st birthday. In numerous cases, children enter with only a few days to spare before turning 21. Interpreting the statute as allowing these children to enter until age 21, but then also requiring that an adjustment be completed before they turn 21, is simply unreasonable. The only reasonable interpretation of the statute is that a K-2 child must be under 21 at admission but not at the time of adjustment. A recent favorable 10th Circuit decision doesn’t go quite this far, but should help convince the BIA that DHS is wrong. We have asked the BIA to schedule oral argument on this issue and to decide these cases together.”
This author has yet to be convinced of Congress’s original intent, but this issue is interesting and it will be fascinating to see how this issue plays out in the Immigration Courts. A favorable decision could lead to major benefits for children of the Thai fiancees of American Citizens.
For general information about US Immigration from Thailand please see: US Visa Thailand.
31st MAR 2010
Changes In Filing Procedure For I-131 Advance Parole Travel Documents
Posted by : admin
The issue of advance parole can be extremely important for those enter the United States on a K1 visa. A K1 visa is a US fiance visa that allows the fiance of a US Citizen to enter the United States for a period of 90 days in order to marry and apply for adjustment of status. Adjustment of Status is the process of acquiring Lawful Permanent Residence (Also Known as a “Green Card”). For those who are awaiting the approval of an adjustment application a sense of being in “limbo” can set in as the applicant does not yet have permanent residence and they cannot leave the United States without falling out of status and thereby, often inadvertently, causing the entire visa process to begin anew.
There is a way that a foreign national can keep from falling out of status and still leave the United States. If the foreign national petitions for, and obtains, advance parole, then they may leave the United States and preserve both their Fiance Visa and their adjustment application.
In the past, applications for advance parole were adjudicated by local USCIS offices. However, in a recent USCIS announcement distributed by AILA, this procedure is changing:
“WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) today announced revised filing instructions and addresses for applicants filing an Application for Travel Document (Form I-131). The change of filing location is part of an overall effort to transition the intake of some USCIS forms from USCIS local offices and Service Centers to USCIS Lockbox facilities. By Centralizing form and fee intake to a Lockbox environment, the agency can provide customers with more efficient and effective initial processing of applications and fees.”
“Beginning March 19, 2010 applicants will file their applications at the USCIS Vermont Service Center or at one of the USCIS Lockbox facilities. Detailed guidance can be found in updated Form I-131 instructions page at www.uscis.gov.”
Many people may already be asking themselves: What if I inadvertently filed my advance parole application at the wrong location because I was unaware of the change? Luckily, USCIS is dealing with this internally, at least for now:
“The USCIS Service Centers will forward incorrectly filed Form I-131 applications to the USCIS Lockbox facilities for 30 days, until Monday, April 19, 2010. After April 19, 2010, incorrectly filed applications will be returned to the applicant, with a note to send the application to the correct location.”
Since USCIS will discontinue forwarding incorrectly filed applications, those seeking advance parole should carefully study this issue before submitting an application as failure to do so could cause delays in being granted permission to leave the USA and preserve one’s status.
For further information about American Immigration from Thailand please see: US Visa Thailand.
17th MAR 2010
Can I Get A US Tourist Visa For My Thai Girlfriend?
Posted by : admin
Many people contact this author in order to ask questions about the United States Immigration process. Sometimes, a question becomes so common that I feel the need to post an article about the subject on this blog. The question that has been recently posed with great frequency is: Can I get my Thai girlfriend to the United States on a US tourist visa? Strictly speaking, yes, but this answer needs to be highly qualified. Anyone who is approved for a US tourist visa can go to the United States and request admission, but obtaining approval of a US tourist visa application can be difficult for the boyfriend or girlfriend of an American Citizen. The difficulty arises under the provisions of the United States Immigration and Nationality Act.
Pursuant to Section 214(b) of the United States Immigration and Nationality Act a Consular Officer at a United States Embassy or United States Consulate-General is required to make a presumption that a non-immigrant visa applicant is actually an intending immigrant unless they can prove otherwise. This, in turn, leads to a factual analysis by the Consular Officer. The Consular Officer must believe that the applicant has “strong ties” to their home country, or any other country outside of the USA, and “weak ties” to the United States. In many cases, the mere existence of a US Citizen boyfriend or girlfriend will mitigate against any “strong ties” abroad and lead to a visa denial under section 214(b). This reasoning on the part of US Embassy personnel should not be misconstrued as a personal denial. Instead, the officer is legally compelled to deny a tourist visa application if the applicant cannot overcome the presumption imposed by section 214(b).
Many people then ask the question: can this visa denial be appealed? No, although an applicant may ask for a tourist visa application to be reopened. That being said, in virtually all cases, the denial will be upheld. A Consular Officer’s factual findings are not subject to appeal based upon the doctrine of Consular Absolutism. However, a legal finding may be subject to reversal. With that in mind, one should recognize that a visa denial under section 214(b) is a factual determination and therefore not generally subject to reversal.
If a couple truly has a bona fide intention to marry in the USA and apply for adjustment of status, then a tourist visa is really not the correct travel document as it specifically precludes immigrant intent (unlike a dual intent travel document such as a K1 visa or an L1 visa). Therefore, if the couple wishes to marry and adjust status, then a Fiance Visa is a more appropriate travel document. However, the couple must have a truly bona fide intention to marry and not simply a pretextual intention in order to pursue US Immigration benefits.
For further information for about visas in general and the complex issues surrounding family based petitions please see: US Visa Thai Girlfriend.
11th MAR 2010
B2 Visa Thailand: Fraud and Misrepresentation, What is a Fiance?
Posted by : admin
There are many people of all nationalities who submit applications for a US Tourist Visa at the US Embassy Thailand. Although these applications are quite common, they are becoming increasingly subject to denial pursuant to section 214(b) of the United States Citizenship and Nationality Act. This provision basically requires that the Consular Officer make a presumption that the tourist visa applicant is an undisclosed immigrant unless the applicant can provide strong evidence to the contrary. This creates the “strong ties” vs. “weak ties” analysis which requires that the applicant show “strong ties” to a country outside of the United States and “weak ties” to the USA. This can be a very problematic provision especially for those Americans who wish to bring a Thai significant other back to the US.
The existence of an American Citizen boyfriend can be very detrimental for a Thai’s B2 visa application (or any non-immigrant visa application for that matter ex: F-1 visa, J-1 visa, B-1 visa, etc). The detriment arises from the fact that the applicant has a primary relationship with an American and therefore could be construed to have a “strong tie” to the USA. Some couples try to get around this problem by “not mentioning” the existence of a relationship with an American. This is not a good idea, in this author’s opinion, because any dishonesty, even dishonesty by omission, is unethical and could be viewed by the Embassy and/or Consulate as an attempt to defraud the US government. For an American Citizen, a finding of fraud and misrepresentation could lead to penalties, but such a finding could have a highly negative impact upon the applicant’s chances of ever obtaining a US visa in the future as fraud and misrepresentation is considered a legal grounds of inadmissibility to the USA that would likely only be remedied upon the approval of an I601 waiver.
However, the DS-156 form that is used to apply for a US tourist visa does not ask “do you have an American boyfriend/girlfriend?” Instead the forms asks:
“Are Any of The Following Persons in The U.S., or Do They Have U.S. Legal Permanent Residence or U.S. Citizenship? Mark YES or NO and indicate that person’s status in the U.S. (i.e., U.S. legal permanent resident, U.S. citizen, visiting, studying, working, etc.)”
The form then allows the applicant to note family relationships, including “fiance/fiancee.” The reason this is being discussed is due to the fact that the rest of the form’s questions can be relatively easily answered. For example, one can say with near certainty if they have a US Citizen husband, but “fiance” is another, more opaque, concept. Defining “fiance” is difficult as relationships, prior to marriage, are fairly fluid from a legal standpoint. In this author’s opinion, if the applicant has a romantic relationship with an American Citizen, then this fact should be disclosed to the Consular Officers either in writing or at the visa interview, but if there is any inkling that marriage and adjustment of status may be a possibility, then it may be better to forgo an attempt at a tourist visa, as this is not really the proper travel document, and submit a petition for a K1 visa.
For further information, please see: US Visa Thailand.
1st MAR 2010
Those going through the US visa process may be aware of the I-864 affidavit of support. This document is used in order for the United States government to receive assurance that the prospective immigrant will not become a public charge in the United States. In family based immigrant visa cases involving visas such as the CR1 Visa or the IR1 visa the I-864 is used. The I-864 should not be confused with the I-134 affidavit of support which is often utilized by those seeking either a K1 visa or a K3 Visa. However, at the time of this writing, it is highly likely that use of the I-134 in K-3 cases will fall by the wayside as fewer K-3 visa applications will be forwarded on to US Embassies and Consulates abroad due to the administrative closure of new K-3 applications at the National Visa Center. That being said, non-immigrant dual intent travel documents such as the K1 fiance visa and the K3 marriage visa do not use the I-864, but use the I-134.
There are certain Immigrant visas which do not utilize the I-864 as the affidavit of support requirement is waived. These type of cases require the submission of the I-864w. To quote the United States Citizenship and Immigration Service (USCIS) in their own instructions for the form itself:
“The Form I-864 is legally required for many family-based immigrants and some employment-based immigrants to show that they have adequate means of financial support and that they are not likely to become a public charge. Certain classes of immigrants are exempt from the I-864 requirement and therefore must file Form I-864W instead of Form I-864 or Form I-864EZ.”
Under the Child Citizenship Act of the year 2000, there are certain children who enter the United States and become United States Citizens by operation of law upon admission at a port of entry by the Customs and Border Protection Service (CBP). These children may then apply for a certificate of citizenship which is somewhat similar to a naturalization certificate except for the fact that the child is not naturalized, but a citizen statutorily. In cases where the child would become a citizen upon entry, the obligations incurred by an I-864 would automatically extinguish upon entry since the child would be a US Citizen. Therefore, the need to adjudicate means of support are made somewhat redundant. This may be the policy reason underlying the promulgation of the I-864w.
9th FEB 2010
US Visa Thailand: Appointment and Scheduling Information
Posted by : admin
The method of making an appointment at the US Embassy in Bangkok depends upon the reason for the appointment. For example, the appointment process for obtaining a Consular Report of Birth Abroad is different than the process for obtaining an appointment for a non-immigrant visa interview.
Many expatriates in Thailand seek such services as: Consular Reports of Birth Abroad (a document akin to a birth certificate) , notarization, visa page replacement, and new passport issuance. Virtually all of the issues surrounding these services can be dealt with at the American Citizen Services Section of the United States Embassy in Bangkok. For those interested in making an appointment with the American Citizen Services Section of the US Embassy in Bangkok, it may be wise to click on this link.
For those who need a non-immigrant visa to the United States a visa interview appointment will likely be required. For those unfamiliar with the US visa process, a non-immigrant visa is granted to an individual who does not have the intention of remaining in the USA. Popular non-immigrant visa categories are the J1 visa, the F1 visa, the B1 visa, and the B2 visa (also known as a Tourist visa). The aforementioned visa categories are not the only non-immigrant visas, but they are currently the most popular among those interviewing at the US Embassy in Bangkok. For those interested in more information about non-immigrant visas please click here.
Another common reason for needing an appointment at the US Embassy in Bangkok is the need to finish the American Immigration process. For those who wish to immigrate to the United States, in order for a US visa to be issued, the applicant must undergo a visa interview. In Thailand, the popular immigrant visas are category CR-1 and IR-1 for Thai spouses. Although not immigrant visas in the strict sense of the word, the K1 visa and the K3 visa are treated as immigrant visas because they are dual intent travel documents. A dual intent visa (travel document) is designed for a foreign national to enter the United States in non-immigrant status with the option of adjusting status to that of an Immigrant at a later date. For many, the Immigrant visa process is time consuming and the final phase of the process can cause anxiety in many applicants. However, for the applicant who tells the truth and is forthright in their application, there is usually no reason to be anxious as the visa interview is nothing more than an exercise of due diligence on the part of the Consular officers. For more on immigrant visas please click here.
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