Integrity Legal

Posts Tagged ‘American Embassy’

17th October 2021

There are a substantial number of news stories currently noting the announced reopening of Thailand for a broad swath of tourists beginning November 1. To quote directly from the Bangkok Post:

Thailand will allow fully vaccinated visitors from low-risk countries to enter the kingdom without quarantine from Nov 1 as a key effort by the government to boost the economy. In a televised broadcast on Monday night, Prime Minister Prayut Chan-o-cha said he has instructed the Centre for Covid-19 Situation Administration (CCSA) and the Public Health Ministry to consider reopening the country to fully vaccinated tourists without quarantine on Nov 1. However, pre-conditions are that international visitors will need to show that they are Covid-free at their time of travel with an RT-PCR test undertaken before they leave their home country, and then have a test in Thailand…

Clearly the government seems intent upon reopening, but there are some who question whether Thailand will actually reopen on the date selected. Some have pointed out that the deadlines remains tentative. As of the time of this writing the regulations regarding entry to Thailand remain as they have been since April of 2021 for the unvaccinated traveling to Thailand by land, while vaccinated travelers coming by air have seen their quarantine period reduced to 7 days and the unvaccinated must now only quarantine 10 days. Meanwhile, there is also discussion about abolishing the certificate of entry in favor of a “Thailand Pass”. To quote again from the Bangkok Post:

The Ministry of Foreign Affairs and the Digital Government Development Agency are developing a new system to replace the certificate of entry (CoE) for Thais and foreigners who wish to enter the country through an airport. Tanee Sangrat, spokesman for the Foreign Affairs Ministry, said on Thursday a new web-based application called the Thailand Pass system, where people can gather information and upload documents, is being developed for the kingdom’s Nov 1 reopening. Mr Tanee said the Thailand Pass will replace the CoE system and facilitate the filing of an immigration form known as the TM6 and a health declaration form known as T8…

Although the new Thailand Pass will replace the certificate of entry, many of the attributes of this new system appear very similar to the COE system and it should be noted that for some travelers a certificate of entry may still be required. The analysis regarding who requires a certificate of entry to be admitted to Thailand and who can use the Thailand Pass will depend upon the specific facts in a given case.

As Thailand appears to be easing restrictions associated with inbound travel, backlogs in the American immigration system persist. Presently, it is taking an extremely long time, compared to times past, to secure an appointment for an American tourist visa interview. Concurrently, those seeking a K-1 visa or a K-3 visa for a Thai fiancee or spouse to travel to the USA are seeing interview appointments allocated with a decreasing frequency. Furthermore, appointments being issued through the National Visa Center for CR-1 visas and IR-1 visas for immigrant spouses are also increasingly scarce. Hopefully, these delays are temporary and we will see speedier processing of these cases sooner rather than later.

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1st September 2021

The lockdowns in Bangkok and other highly populated areas of Thailand appear to be abating as it has recently been decreed that certain retail businesses may reopen while restaurants and other eateries may again serve dine-in customers from today onward. There seems to be an implication that further easing will be forthcoming, but we have seen that attitude before only to see things suddenly reverse. Hopefully, the business community in Bangkok and Greater Thailand has finally come through the worst of these rather stringent measures and things can move on.

Meanwhile, various destinations in Thailand are attempting to “Move On“. Notably, Phuket has implemented initiatives in the “Phuket Sandbox” program to allow travelers in that location to travel to other destinations after an initial 7 days on the island in the “7+7” program. Although this is definitely good news tourism numbers remain far below normal and therefore it remains to be seen how many people will actually avail themselves of this opportunity. The sandbox initiative has not garnered the tourism interest that many had hoped, but with high season coming this could change. It is worth noting that a number of non-immigrant Thai visa holders have availed themselves of the sandbox scheme as it is viewed as less cumbersome compared to dealing with 14 days of quarantine when traveling to other parts of Thailand.

It is notable that Thailand is one of the only jurisdictions in Southeast Asia which is permitting tourists to enter the country. Not to mention non-immigrant visa holders (most of whom were completely barred from reentry last summer). That stated, issues still arise for foreign nationals in Thailand as there are those who have problems either maintaining their status due to unforeseen work issues or no longer meet the requirements of their lawful status. Under such circumstances it is optimal to avoid falling into overstay and attempt to obtain a Thai visa conversion in order to remain in the Kingdom.

American immigration is not moving as quickly as was the case prior to 2020. That stated, things are moving more quickly compared to the situation in 2020. Although appointments for non-immigrant visas to the USA such as tourist visas are difficult to come by and even obtaining an appointment for a K-1 visa interview can be difficult. There are those who hope that a change in administration in the USA will result in concrete changes to the American immigration apparatus, but any improvements remain to be seen.

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10th August 2021

As the current economic situation in Thailand continues down a precarious path due to lockdowns. There are many who fear tourism may not return to Thailand in high numbers any time in the near future. In fact, quarantine rules do not look like they are going away and the Phuket sandbox has proven to be less of a draw than initially anticipated. There are some who have speculated that Thailand may have come to overly rely upon tourism as an integral component of the overall economy. Whether or not this is true is difficult to ascertain, but it should be noted that anyone predicting the events of 2020 and 2021 in, say, the year 2018 would have been called worse names than crazy so the notion that Thailand came to overly depend upon tourism is only an argument that operates logically in hindsight.

Although the Phuket sandbox has been discussed a great deal as of late, there is also a similar program which has been initiated in Samui and those wishing to avail themselves of this tourism opportunity may do so by traveling through Bangkok in “sealed terminals” in order to undergo “sandbox quarantine” for 14 days on that island. Presently, travel restrictions in Thailand have precluded wide travel latitude for those wishing to leave the Phuket sandbox, but this does not appear to currently be an issue in the Samui system. Those wishing to travel to Bangkok from abroad may do so, but they are still required to undergo quarantine in a Bangkok hotel via the Alternative State Quarantine system.

Business travelers to Thailand are not precluded from using either the Samui or Phuket sandboxes so those with a Thai business visa and/or Thai work permit may return to Thailand without undue hardship. It is worth pointing out that Thailand is one of the few jurisdictions in Southeast Asia which is trying to maintain tourist travel as well as admitting non-immigrant visa holders such as the aforementioned B visa holders as well as those holding an O visa for marriage to a Thai or for retirement. Thai Embassies and Consulates are still issuing O-A retirement visas to those retirees abroad. Thailand remains one of the few countries in Southeast Asia actively issuing visas to foreign retirees.

Those seeking visas to the USA may continue to do so under present circumstances although appointment scheduling has proven somewhat cumbersome in recent months as the American Embassy in Bangkok appears to be either understaffed or unable to process a large caseload due to restrictions associated with the response to COVID-19. However, appointments are available, albeit it in a relatively limited number.

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14th June 2021

It recently came to this blogger’s attention via the website of the US Embassy in Thailand that there is a new policy in place regarding the expired passports of US Citizens. To quote directly from the aforementioned website:

U.S. citizens may directly return to the United States with certain expired U.S. passports.

If you are overseas and your passport expired on or after January 1, 2020, you may be able to use your expired passport to return directly to the United States until December 31, 2021.

You qualify for this exception if all the following are true:

  • You are a U.S. citizen.
  • You are currently abroad seeking direct return to the United States.
  • You are flying directly to the United States, a United States territory, or have only short-term transit (“connecting flights”) through a foreign country on your direct return to the United States or to a United States Territory.
  • Your expired passport was originally valid for 10 years. Or, if you were 15 years of age or younger when the passport was issued, your expired passport was valid for 5 years.
  • Your expired passport is undamaged.
  • Your expired passport is unaltered.
  • Your expired passport is in your possession.

You do not qualify for this exception if:

  • You wish to depart from the United States to an international destination.
  • You are currently abroad seeking to travel to a foreign country for any length of stay longer than an airport connection en route to the United States or to a United States territory.
  • Your expired passport was limited in validity.
  • Your expired passport is a special issuance passport (such as a diplomatic, official, service, or no-fee regular passport).
  • Your expired passport is damaged.
  • Your expired passport is altered.
  • Your expired passport is not in your possession…

This is a major departure from standard procedures regarding American passports. Those keenly interested in this issue are advised to click the link above to read the entire announcement. Clearly, the United States Embassy in Thailand is attempting to provide solutions to Americans abroad who have seen their passports expire as the duration of the Thai government’s response to the COVID situation drags on. Although this is something of an “ad hoc” initiative the State Department’s policy is laudable as it creates flexibility for many Americans abroad who otherwise would be unable to return home.

Meanwhile, Thai Immigration policy continues to evolve. There has been significant progress made with regard to the proposed “Phuket Sandbox” initiative which, once implemented, would allow travelers to be admitted to Phuket, Thailand without being required to quarantine in their hotel for 14 days. However, there are been a number of developments in recent weeks which appear both positive and negative. For example, the following was noted in a recent article on ThaiVisa.com:

Over 50 percent of foreigners who had confirmed they would visit Phuket as part of the ‘Phuket Sandbox’ project have now cancelled their plans, Thailand’s tourism minister has said. Pipat Ratchakitprakarn, Minister of Tourism and Sports, told Spring News that after the Center for Economic Situation Administration (CESA) increased the minimum period of stay from 7 days to 14 days, 29,700 foreigners have now cancelled plans to visit Phuket. Under the Phuket Sandbox scheme, vaccinated foreigners do not need to be quarantined in a hotel room, but they are required to remain in Phuket before travelling to other provinces in Thailand…

The fluidity of regulations pertaining to the sandbox initiative seems to be alienating a number of otherwise interested travelers. Meanwhile, ThaiVisa.com went on to note that:

The Phuket Sandbox project, the launch of which is best described as chaotic, suffered another blow last week after it was announced that bars and pubs in Phuket would remain closed when the first tourists start arriving from July 1.

It seems immigration and quarantine policy are not the only obstacles standing in the way of substantial tourist numbers returning. It should be noted that the Phuket initiative has yet to be brought online so it remains to be seen if the “sandbox” plan will actually be implemented. It seems prudent to infer based upon comments from relevant Thai government officials that the sandbox program will be implemented. However, the popularity of such a plan remains to be seen. Presently, those arriving in other parts of Thailand, including Bangkok and Chiang Mai, are required to undergo 14 days of alternative state quarantine (ASQ) before being released. This quarantine pertains not only to foreign tourists, but also to those entering Thailand on non-immigrant visas such as the business visa, retirement visa, marriage visa as well as Thai nationals and permanent residents. The end date for quarantine enforcement in Thailand remains to be seen.

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24th May 2021

The overall posture of American immigration has improved considerably since the beginning of 2021. With the transition to a new administration there have been a number of changes in how immigration cases are processed. As noted previously, the public charge rule has reverted back to pre-Trump criteria. Concurrently, it appears the current administration has rolled back a potentially disturbing policy regarding collection of biometric data from not only intending immigrants to the United States, but American petitioners and sponsors as well. Presently, there are a number of backlogs holding up cases at various points in the US immigration process. For example, processing times at USCIS are longer overall. Meanwhile issues at the National Visa Center are prolonging case processing. Finally, the US Embassy in Bangkok, Thailand has had to postpone a number of appointments citing the COVID situation. Although it seems the Embassy is prioritizing family based Immigrant Visa Unit matters over the non-immigrant visa unit as some level of priority seems to be conferred to cases such as applications for the K-1 visa (for fiances of America citizens) and the marriage visa cases (K-3, IR-1, and CR-1 visas). There does seem to be some hope on the horizon that things will start looking better as this administration does not seem as intent on being deliberately obtuse with respect to processing immigration cases.

Turning to Thai immigration news, the situation in Thailand has turned less positive since April and the upshot in an immigration context is the re-extension of the quarantine time in Thailand. As of the time of this writing, all travelers (including those vaccinated) arriving in Thailand are required to undergo a 14 day quarantine. On a more general note, Thailand remains under a state of pseudo-lockdown which is having a tremendously negative impact upon the SME sector. However, there is hope that things will begin to turn around as the COVID vaccination is rolled out in early June. Key officials in Thailand have also stood firm behind their commitment to reopen Phuket for the “sandbox” initiative in July. This is apparently still moving forward and, as yet, this doesn’t seem likely to be cancelled. That stated, many initiatives (such as “travel bubbles” or reduced quarantine) have been proposed and ultimately shot down or have been rolled out only to be rolled back. Therefore, it is difficult to predict exactly how things will progress moving forward in the course of the next few weeks, but hopefully these days ahead will be better than those recently transpired.

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23rd April 2021

As the government’s response to the COVID situation persists, there are a number of tangential effects reverberating in an Immigration context. For example, the oft discussed “sandbox” initiative in Thailand to allow particularly Phuket to reopen in July may be under threat. To quote a recent article from The Phuket News:

The question of re-opening Thailand to Tourism, starting with Phuket, has obviously taken a knock backwards. The Tourism and Sports Minster said, “The key determinant is insufficient vaccines, we are concerned about the re-opening timeline. We still need to discuss the vaccine administration plan. If the herd immunity goal cannot be achieved, we may have to consider opening only certain areas in Phuket,” he said.

Although July, the proposed month to begin the sandbox program, is some time off and the future is difficult to predict it seems increasingly unlikely that the program will be implemented in that time frame. That stated, a recent excerpt from the Bangkok Post could be viewed as more optimistic:

However, authorities will continue with their plan to bring in vaccinated international visitors via a pilot project called Phuket Sandbox in July. The Tourism and Sports Ministry will help distribute Covid-19 vaccines to cover 70% of Phuket’s residents to prepare for international tourists.

Meanwhile, the truncated quarantine policies, allowing for 7 days of quarantine and 10 days of quarantine for foreign vaccinated and unvaccinated travelers, respectively appears unchanged. This appears to be the case so long as said foreign nationals are not originating from “high risk” countries. In that case, the 14 day quarantine remains the standard. These protocols also include those traveling to Thailand on Thai retirement visas as well as visas for marriage and business purposes.

The economy in Thailand has been taking a hit due to the recently announced “lockdown” measures (although officials are at pains to point out that an actual “lockdown” is not in effect). All bars and entertainment establishments have been ordered closed and restaurants cannot serve alcohol for some weeks. How exactly this situation plays out remains to be seen, but Thai business leaders have voiced their concerns about the devastating economic impact of these policies.

In the realm of American immigration, the situation has had something of an impact upon those seeking visas to the USA, but cases continue to process out of the National Visa Center and the Embassy continues to conduct interviews. Whether this trend continues remains to be seen, but we will provide updates on the situation as it continues to evolve.

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14th February 2021

Since the last posting on this blog there have been a number of developments and discussions with respect to both Thai and American immigration issues. One development which has received substantial media coverage has been the Executive Orders signed by President Biden with regard to Immigration policy. Of particular note to the administration of this web log was the order titled: Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans. The content of this Executive Order seems designed to impose a new policy paradigm upon the Immigration bureaucracy (or perhaps reimpose of a previously existing paradigm). This effort to change the prevailing paradigm is evidenced in the opening lines of the order itself:

Consistent with our character as a Nation of opportunity and of welcome, it is essential to ensure that our laws and policies encourage full participation by immigrants, including refugees, in our civic life; that immigration processes and other benefits are delivered effectively and efficiently; and that the Federal Government eliminates sources of fear and other barriers that prevent immigrants from accessing government services available to them…The Federal Government should develop welcoming strategies that promote integration, inclusion, and citizenship, and it should embrace the full participation of the newest Americans in our democracy.

Clearly, the administration seeks to re-establish a sense of decorum and compassion tot eh immigration system. The order goes on the delineate as to more concrete steps toward those ends:

Sec. 3.  Restoring Trust in our Legal Immigration System.  The Secretary of State, the Attorney General, and the Secretary of Homeland Security shall review existing regulations, orders, guidance documents, policies, and any other similar agency actions (collectively, agency actions) that may be inconsistent with the policy set forth in section 1 of this order.

(a)  In conducting this review, the Secretary of State, the Attorney General, and the Secretary of Homeland Security shall:

(i)   identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits and make recommendations on how to remove these barriers, as appropriate and consistent with applicable law; and

(ii)  identify any agency actions that fail to promote access to the legal immigration system — such as the final rule entitled, “U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements,” 85 Fed. Reg. 46788 (Aug. 3, 2020), in light of the Emergency Stopgap USCIS Stabilization Act (title I of division D of Public Law 116-159) — and recommend steps, as appropriate and consistent with applicable law, to revise or rescind those agency actions.

(b)  Within 90 days of the date of this order, the Secretary of State, the Attorney General, and the Secretary of Homeland Security shall each submit a plan to the President describing the steps their respective agencies will take to advance the policy set forth in section 1 of this order.

(c)  Within 180 days of submitting the plan described in subsection (b) of this section, the Secretary of State, the Attorney General, and the Secretary of Homeland Security shall each submit a report to the President describing the progress of their respective agencies towards implementing the plan developed pursuant to subsection (b) of this section and recognizing any areas of concern or barriers to implementing the plan.

It remains to be seen precisely how this will impact the American immigration system, and it should be noted that the apparatus is unlikely to fundamentally change over night. That stated, there is good reason to hope there may be “light at the end of the tunnel” after months of seemingly unnecessary delay and obfuscation in the visa process. There does appear to one area of particular interest to the current administration with respect to US immigration. Namely, there have been a number of issues associated with the “Public Charge rule” and prior to the issue of COVID-19 coming to the forefront of immigration analysis, public charge was shaping up to be a significant obstacle for a number of family based immigration cases (including, but not limited to: the K-1 visa, the K-3 visa, the CR-1 visa, and the IR-1 visa categories). The recently promulgated order seems to take this issue seriously:

The Secretary of State, the Attorney General, the Secretary of Homeland Security, and the heads of other relevant agencies, as appropriate, shall review all agency actions related to implementation of the public charge ground of inadmissibility in section 212(a)(4) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(a)(4), and the related ground of deportability in section 237(a)(5) of the INA, 8 U.S.C. 1227(a)(5).  They shall, in considering the effects and implications of public charge policies, consult with the heads of relevant agencies, including the Secretary of Agriculture, the Secretary of Health and Human Services, and the Secretary of Housing and Urban Development.

(a)  This review should:

(i)    consider and evaluate the current effects of these agency actions and the implications of their continued implementation in light of the policy set forth in section 1 of this order;

(ii)   identify appropriate agency actions, if any, to address concerns about the current public charge policies’ effect on the integrity of the Nation’s immigration system and public health; and

(iii)  recommend steps that relevant agencies should take to clearly communicate current public charge policies and proposed changes, if any, to reduce fear and confusion among impacted communities.

(b)  Within 60 days of the date of this order, the Secretary of State, the Attorney General, and the Secretary of Homeland Security shall each submit a report to the President describing any agency actions identified pursuant to subsection (a)(ii) of this section and any steps their agencies intend to take or have taken, consistent with subsection (a)(iii) of this section.

It seems the administration is particularly keen to address the difficulties imposed by rules changes pertaining to public charge and hopefully some revision of the rules may be forthcoming sooner rather than later.

Meanwhile, although there has not been a great deal of substantive change to current immigration policy in Thailand, there has been a great deal of discussion regarding possible policy changes to in an effort to revitalize the Thai tourism sector which, depending upon the source, seems to have seen between 1-3 million layoffs since the response to the pandemic began. Once solution discussed has been the notion of a “vaccine passport” or “immunity passport“. Essentially, this notion centers upon the idea that those who can prove they have been inoculated against COVID-19, via one of the many vaccinations currently on the market, will be allowed to travel to Thailand without the need to quarantine in one of the alternative state quarantine (ASQ) facilities. Notwithstanding the fact that there has ben a great deal of discussion on this matter, it currently appears, as with the so-called “travel bubble” scheme, that this program will not be implemented any time soon. As the tourism sector in Thailand languishes, long stay tourists may avail themselves to special tourist visas or standard TR visas to stay in Thailand. Furthermore, the Thai retirement visa remains a viable option for those wishing to travel to Thailand for retirement purposes.

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5th January 2021

As 2021 dawned the situation in Thailand, specifically the response to COVID-19, deteriorated. Presently, in place of full lockdowns, much of Thailand is operating under a system of provincial imposition of “highly controlled area” status which is restricting many operations many people once took for granted. How has this impacted the immigration system? Initially, it seemed this turn of events would not impact prospects for gaining admission to Thailand. Then, it appeared that those from the UK might be restricted from arriving in Thailand. To quote directly from the Bangkok Post:

The Ministry of Public Health will ask the Centre for Covid-19 Situation Administration (CCSA) to defer the entry of British visitors to the country after the fast-spreading B117 strain of Covid-19 was found in four British nationals entering Thailand on Dec 21.

This caused a great deal of consternation especially among those seeking Thai visas from the Embassy in the UK. However, further deliberation seems to have resulted in the decision that arrivals from the United Kingdom will not be impeded. Quoting directly from The Nation:

Thailand’s measures to control the spread of Covid-19 are strong enough to not warrant special measures against travellers from the United Kingdom, Foreign Ministry spokesperson Thanee Saengrat said.

Based upon the above information, it seems logical to presume that the overall situation regarding foreign nationals arriving in Thailand remains much as it did prior to the new year. Meanwhile, a number of travelers are finding that trying to process their Thai visa application on their own from abroad is a cumbersome endeavor. The overall process of gaining lawful admission to Thailand is greatly changed compared to times past. One major sticking point for many is the addition of the certificate of entry to the process. This document is required in addition to a Thai visa. Concurrently, documentation showing a lack of infection for COVID-19 in addition to fit to fly documentation has proven nettlesome for many. Couple this with the fact that those entering Thailand are still required to undergo Alternative State Quarantine for 14 days prior to gaining total access to the Kingdom. There was some discussion regarding the possibility of seeing the quarantine time frame reduced to 10 days or even less. However, under present circumstances this seems highly unlikely. The notion of “travel bubble” arrangements also being brought online seems unlikely at this time as well.  Although many in Thailand are hopeful that the disbursement of a vaccine may result in a return of tourists in 2021. As of the time of this writing, this remains conjecture.

Turning to American immigration, many have found themselves in a kind of processing “limbo” with respect to cases such as the K-1 fiance visa as well as the various marriage visas including the K-3 visa, CR-1 and IR-1 visa categories. Currently, a large number of cases remain at the National Visa Center and seem unlikely to be processed out for interview soon. There appeared to be hope in the last part of the final quarter of 2020 as some cases were being scheduled for interview, but that hope may be dashed as the current situation in Thailand may result in further interview cancellations. This situation is fluid and still evolving.

Many hope that a transition to a new administration will herald an end to certain arbitrary and capricious aspects of the immigration process in its current form, but it should be noted that it takes time for bureaucracies to change and therefore a Biden presidency may not immediately see major changes to visa case processing in 2021.

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8th August 2013

Many Lesbian, Gay, Bisexual, and Transgender (LGBT) couples have questions regarding United States Immigration in the aftermath of the Supreme Court’s finding in the Windsor case that Section 3 of the Defense of Marriage Act (DOMA) is unConstitutional. Both the United States Citizenship and Immigration Service (USCIS) and the Department of State have previously issued answers to frequently asked questions on this topic. In a previous posting on this blog, USCIS’s answers to these FAQs were discussed. However, it recently came to this blogger’s attention that the USCIS has issued further answers to such FAQs to further clarify their position on this issue. To quote directly from these new answers to FAQs on the official website of the USCIS:

Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa? NEW
A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be denied as a result of the same-sex nature of your marriage.

Clearly American Citizens or Lawful Permanent Residents may petition for an immigrant spouse visa such as an IR1 visa, CR1 visa, or by extension a K3 visa (as the K-3 visa petition is a supplementary petition based upon the initial petition for an immigrant visa). Furthermore, when applying for the visa at a US Embassy or US Consulate abroad during the Consular Processing phase of the US immigration process the application will be viewed in the same way as an application based upon a different-sex marriage. Also, adjustment of status applications for the same sex spouse of a US Citizen or Lawful Permanent Resident will be adjudicated in the same manner as a similar application for a different-sex spouse.

A question for many same sex and LGBT couples concerns the State of the couple’s residence versus the State of marriage since there are only a few States which allow such marriages while other states either do not recognize such unions or specifically forbid such unions. USCIS issued further clarification on this issue in their recently updated FAQ section:

Q3: My spouse and I were married in a U.S. state or a foreign country that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse? NEW
A3: Yes. As a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes.  Just as USCIS applies all relevant laws to determine the validity of an opposite-sex marriage, we will apply all relevant laws to determine the validity of a same-sex marriage..

There may be some limited circumstances where the law of the couple’s residence may determine their legal standing on certain issues. However, as can be seen from the above quoted FAQ, the USCIS appears to primarily defer to the law of the State which legalized the marriage when determining whether the couple is eligible for immigration benefits.

Finally, this blogger does not recall the USCIS previously answering questions regarding immigration petitions which were filed with USCIS prior to the Supreme Court’s holding that Section 3 of DOMA violates the U.S. Constitution. The following section of USCIS’s recently expanded FAQ section would appear to respond to this inquiry:

Q5. My Form I-130, or other petition or application, was previously denied solely because of DOMA.  What should I do?
A5.  USCIS will reopen those petitions or applications that were denied solely because of DOMA section 3.  If such a case is known to us or brought to our attention, USCIS will reconsider its prior decision, as well as reopen associated applications to the extent they were also denied as a result of the denial of the Form I-130 (such as concurrently filed Forms I-485).

  • USCIS will make a concerted effort to identify denials of I-130 petitions that occurred on the basis of DOMA section 3 after February 23, 2011.  USCIS will also make a concerted effort to notify you (the petitioner), at your last known address, of the reopening and request updated information in support of your petition.
  • To alert USCIS of an I-130 petition that you believe falls within this category, USCIS recommends that you send an e-mail from an account that can receive replies to USCIS at USCIS-626@uscis.dhs.gov stating that you have a pending petition.  USCIS will reply to that message with follow-up questions as necessary to update your petition for processing.  (DHS has sought to keep track of DOMA denials that occurred after the President determined not to defend Section 3 of DOMA on February 23, 2011, although to ensure that DHS is aware of your denial, please feel free to alert USCIS if you believe your application falls within this category.)
  • For denials of I-130 petitions that occurred prior to February 23, 2011, you must notify USCIS by March 31, 2014, in order for USCIS to act on its own to reopen your I-130 petition.  Please notify USCIS by sending an e-mail to USCIS at USCIS-626@uscis.dhs.gov and noting that you believe that your petition was denied on the basis of DOMA section 3.

Once your I-130 petition is reopened, it will be considered anew—without regard to DOMA section 3—based upon the information previously submitted and any new information provided.   USCIS will also concurrently reopen associated applications as may be necessary to the extent they also were denied as a result of the denial of the I-130 petition (such as concurrently filed Form I-485 applications).

Additionally, if your work authorization was denied or revoked based upon the denial of the Form I-485, the denial or revocation will be concurrently reconsidered, and a new Employment Authorization Document issued, to the extent necessary.  If a decision cannot be rendered immediately on a reopened adjustment of status application, USCIS will either (1) immediately process any pending or denied application for employment authorization or (2) reopen and approve any previously revoked application for employment authorization.  If USCIS has already obtained the applicant’s biometric information at an Application Support Center (ASC), a new Employment Authorization Document (EAD) will be produced and delivered without any further action by the applicant.  In cases where USCIS has not yet obtained the required biometric information, the applicant will be scheduled for an ASC appointment.

  • If another type of petition or application (other than an I-130 petition or associated application) was denied based solely upon DOMA section 3, please notify USCIS by March 31, 2014, by sending an e-mail to USCIS at USCIS-626@uscis.dhs.gov as directed above.  USCIS will promptly consider whether reopening of that petition or application is appropriate under the law and the circumstances presented.

No fee will be required to request USCIS to consider reopening your petition or application pursuant to this procedure.  In the alternative to this procedure, you may file a new petition or application to the extent provided by law and according to the form instructions including payment of applicable fees as directed.

Clearly, USCIS is committed to implementing policies and regulations based upon the US Supreme Court’s recent finding. By reopening previously denied petitions and taking steps to provide same sex couples with the same standing as different-sex couples in future immigration adjudications this agency is making great strides toward equalizing the US family immigration process for families of all kinds.

To review the recently released information on this topic from the Department of State please see: Consular Processing.

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31st July 2013

The administration of this blog periodically posts the holiday closing schedules of the various US Embassies and US Consulates in the Southeast Asia region in order to provide a level of convenience to Americans traveling in the area. The following holiday closing schedule was quoted directly from the official website of the US Embassy in Rangoon, Burma (Yangon, Myanmar):

Date Day U.S.* Burmese**
January 1 Tuesday New Year’s Day
January 4 Friday Independence Day
January 21 Monday Martin Luther King’s Birthday
February 12 Tuesday Union Day
February 18 Monday President’s Day
March 27 Wednesday Armed Forces Day
April 15 Monday THINGYAN (Water Festival)
April 16 Tuesday THINGYAN (Water Festival)
April 17 Wednesday Burmese New Year
May 1 Wednesday Workers’ Day
May 27 Monday Memorial Day
July 4 Thursday Independence Day
July 19 Friday Martyrs’ Day
July 22 Monday Full Moon of Waso
September 2 Monday Labor Day
October 14 Monday Columbus Day
November 11 Monday Veteran’s Day
November 27 Wednesday National Day
November 28 Thursday Thanksgiving Day
December 25 Wednesday Christmas Day Christmas Day

Many Americans traveling abroad find that it is necessary to travel to an American Embassy or Consulate in order to request services such as Passport renewal, adding of visa pages, notarial services, or Consular Reports of Birth Abroad (CRBA). Many of these requests can be made at an American Citizen Services Section of the US Embassy or US Consulate-General.

Meanwhile, every year many foreign nationals from around the globe travel to American posts abroad to apply for visas and other travel documents granting permission to travel to the United States. Some visa seekers only wish to remain temporarily in the US on non-immigrant visas such as the B-1 visa (Business Visa), the B-2 visa (Tourist Visa), the F-1 visa (Student Visa), or the J-1 visa (Exchange worker visa). Generally, applications for the aforementioned visa categories can be made at a non-immigrant visa unit within the Consular Section of the US Embassy or US Consulate-General. Applicants are usually required to make an appointment in advance to apply for these types of visas.

Some foreign nationals wish to travel to the United States for business purposes. Depending upon the circumstances of the individual applying for admission to the USA, a business traveler may be issued a non-immigrant or an immigrant visa. The L-1 visa, the E-1 visa, the E-2 visa, the EB-5 visa, the EB-4 visa, the EB-3 visa, the EB-2 visa, the EB-1 visa, and the H-1B visa are all business visa categories commonly sought by foreign nationals. Generally, a business travel unit  within the Consular Section of a US Embassy or Consulate-General abroad is responsible for adjudicating such applications.

Some foreign nationals seek visa benefits based upon a relationship to a US Citizen or lawful permanent resident. One of the most commonly sought US family based visas is the immigrant visa based upon marriage to an American Citizen, these types of visas are generally classified as a CR-1 visa or an IR-1 visa. Fiancees of US Citizens may be eligible to apply for a K-1 visa (US fiance visa). Furthermore, those married to Americans sometimes seek a US K-3 visa. K-1 visas and K-3 visas are generally adjudicated by an Immigrant visa unit, notwithstanding the fact that they are non-immigrant visa categories as they are treated as immigrant visas since the applicants have immigrant intent.

For related information please see: US Immigration Asia.

 

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