Integrity Legal

Posts Tagged ‘IMBRA’

29th May 2011

In a previous posting on this blog the eligibility criteria for the EB-1 visa were briefly discussed. In that same vein, this blogger felt further elaboration on other Employment Based visa categories was warranted to provide insight to readers about issues associated with other employment based preference categories. The United States Citizenship and Immigration Service‘s (USCIS) official website posted an enlightening chart to provide an overall glimpse of the eligibility criteria which this blogger felt could be of interest to readers. To quote directly from the official website of the USCIS, USCIS.gov:

Sub-Categories Description Evidence
Advanced Degree The job you apply for must require an advanced degree and you must possess such a degree or its equivalent (a baccalaureate degree plus 5 years progressive work experience in the field). Documentation, such as an official academic record showing that you have a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that you have a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that you have at least 5 years of progressive post-baccalaureate work experience in the specialty. 

Exceptional Ability You must be able to show exceptional ability in the sciences, arts, or business.  Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” You must meet at least three of the criteria below.*
National Interest Waiver Aliens seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States.  Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability (see above) and whose employment in the United States would greatly benefit the national.  Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker. You must meet at least three of the criteria below* and demonstrate that it is in the national interest that you work permanently in the United States.

Readers are encouraged to conduct their own research into these issues as the chart above is merely presented to provide something of an overview regarding eligibility. The chart above should not be viewed as an exhaustive analysis of the issues at play in a EB-2 petition.

It should be noted that second preference Employment Based petitions are carefully scrutinized as issuance of such visas is intended for those foreign professionals holding an advanced degree or an alien national of “exceptional ability”. Therefore prospective visa seekers are encouraged to note the rather high standards by which those seeking this visa category will be compared during the adjudication process.

Those seeking the visa categorized as an EB-2 are well advised to remember that adjudication of a visa petition at the Department of Homeland Security‘s USCIS may be only one phase of the overall visa process as those residing outside of the United States may be required to undergo Consular Processing at a US Embassy or US Consulate abroad.

For readers who have happened upon this blog in the past, the mention of the “national interest waiver” may bring to mind the I-601 waiver or the I-212 waiver which could be argued to be somewhat similar. Another type of waiver that could be construed as similar to the “national interest waiver” is the waiver sometimes granted by USCIS to permit the filing of multiple petitions for a K1 visa within a relatively short period of time notwithstanding the provisions of the International Marriage Broker Regulation Act (IMBRA).

Frequent readers may recall that the EB-5 visa is also classified as an Employment Based Visa although the criteria for EB-5 visa issuance is different from those of the EB-2 most notably as the EB-5 visa petitioner must demonstrate that a substantial investment has been made in the United States in order to hope to attain eligibility for EB-5 visa status.

The United States visa process can be overwhelming at times and for this reason many opt to retain the assistance of counsel. That stated, when retaining the services of anyone purporting to be qualified to provide advice and/or assistance regarding immigration matters it may be prudent to ascertain credentials as, pursuant to relevant US law, only a licensed American attorney is permitted to take in client fees while engaged in the practice of United States immigration law.

For related information please see: Legal.

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13th May 2009

There are certain questions that seem to come up repeatedly when dealing with clients and prospective clients in Thailand. I thought that todays post could review some of the more frequently asked questions regarding the US Immigration process, specifically from Thailand.

1. Do two fiances need to have met before applying for a K1 visa?

The short answer: Yes. The Long answer: a couple should have met, but this requirement can be waived. In certain instances, USCIS will waive the meeting requirement if the applicant or petitioner can show a compelling reason why they have not met their fiancee within the past 2 years. That being said, it should be borne in mind that in order to have this requirement waived, a high threshold must be overcome in that the petitioner must show a compelling reason why he or she could not have met their fiancee. This burden of proof is on the level of showing “extreme hardship,” for waiver purposes.

2. Is it okay if my Thai fiancee speaks no English and only speaks Thai?

Strictly speaking, there is no language requirement with regard to US Immigration from Thailand. That being said,  having no shared language would raise issues as to whether the couple is in a bona fide relationship, because if they cannot communicate, then it could be inferred that the relationship is not genuine.

However, in cases where it is a Thai-American wishing to file a K1 application for a Thai and the couple shares a common language (Thai), this would not be as much of a pressing issue.

3. Can I file for more than 1 K1 Fiance Visa?

Yes, but with restrictions. Under the International Marriage Broker Regulation Act (IMBRA) restrictions have been placed upon multiple filers of K1 Visas. Basically, if one wishes to file for a second K1 visa within a 2 year period after initially filing for another K1 visa, then the petitioner will need to obtain a waiver of IMBRA restrictions from USCIS.

4. How much money do I need to make in order to prove an ability to support a Thai fiance or wife?

The amount of income necessary to prove an ability to support a Thai fiancee or spouse varies depending upon the number of dependent a US Citizen petitioner has. Check the Affidavit of support financial requirements to learn more. Also, if one does not meet the income requirement, then a joint sponsor may be utilized.

Can a Permanent Resident Apply for a K1 Visa?

No, only a US Citizen is entitled to file a petition on behalf of an alien fiancee.

Can I apply for a K1 or Marriage Visa for my Partner of the Same Sex?

Under Current law, Same Sex couples are restricted from many of the family based immigration categories. However, the Uniting of American Families Act is a piece of pending legislation. The UAFA would grant, “permanent partners,”  the same immigration rights as different sex couples.

Thanks for reading,

For more information please see:

Thailand K1 visa

Thai Fiance Visa

US Visa Thailand

(Note: Nothing Contained herein should be used in lieu of individualized legal advice from a licensed attorney. No attorney-client relationship (express or implied) is created between the reader and the writer of this post).

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7th May 2009

What Happens After the K1 Visa Interview?

After the visa interview a fiancee will either receive a 221 g request for more information, an outright denial, or an approval of the visa application and a visa will be placed into her passport.  A frequently asked question: how long before she must use the visa to the USA? Generally, the answer to this question is 6 months from the issue date. Therefore, a Thai fiancee will need to present her visa at a port of entry in the USA within 6 months of visa issue or else the visa will expire and she will need to obtain a new one before presenting herself at the port of entry again. Getting past the port of entry is usually a smooth process and the worst inconvenience imposed upon the Thai fiancee will likely be the existence of a long line at the United States Customs and Immigration checkpoint.

So you have gotten your fiancee to the United States from Thailand using a K-1 Fiancee. She has gotten past the port of entry in the United States and she is currently in lawful K1 status in the USA: Now What?

A question many couples pose after completing the K-1 visa obtainment process is: does my fiancee need to leave the USA within 90 days? No, you and your fiancee must get legally married and apply for adjustment of status to permanent residence in order for your fiancee to remain in the US legally. While an adjustment of status application is pending the Thai fiancee is entitled to remain in the USA.

If the couple decides that for logistical reasons a marriage is not feasible, the the Thai fiancee will need to depart the United States before the visa’s validity expires.  An issue that arises with regard to this type of situation: under the provisions of the International Marriage Broker Regulation Act a US Citizen is only allowed to petition for one K1 visa every 2 years and if petitioning for more than one K1 within that time period, a waiver must be obtained. Generally, where there was good reason for failure to conduct a marriage and this reason is properly explained to the USCIS adjudicator, a waiver will be issued and the couple would be able to obtain a second fiance visa.

Please see US Visa Thailand for more information

(Please note: Nothing contained within this blog post should be construed as creating an attorney-client relationship between author and reader. This post is meant for informational purposes only and is not meant to act as a substitute for individual legal advice from a licensed attorney.)

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14th April 2009

A popular immigration decision made by Thai-American couples is the decision to pursue a K1 Visa from Thailand. Many couples opt for the fiance visa because it is a faster visa to obtain in comparison to the conventional Immediate Relative Visa. The adjudication processing time for the CR-1 and IR-1 Visa can be as much as 5 months longer than that of the K1 Visa. These time differentials coupled with the fact that many couples like to have the 90 day window of opportunity to decipher whether a marriage will work or not make the K1 Visa a very attractive option.

IMBRA and its limitations on the K1 Visa

A few years ago, Congress passed the International Marriage Brokers Regulation Act in order to clamp down on so-called “mail order bride,” outfits. One of the byproducts of this act is the fact that K1 Visa petitions have been limited. Before the promulgation of IMBRA it was possible for an American Citizen to essentially apply for and obtain infinite fiancee visas for as many beneficiaries as he wanted. Under the new regulations, a US Citizen is only allowed to petition for 2 K1 Visas without needing to obtain a waiver from USCIS. Even with this regulation comes a further caveat, if he should petition for 2 K1 Visas within a 24 month period, then he will also need to obtain a waiver.

The issue involving petitioning for two K1 visas usually comes up in context of the Thai-American couple who obtain a K1 visa and the Thai lady goes to the US. The couple finds that at the time a marriage is not logistically feasible. Therefore, she leaves the United States and returns to Thailand. Later, the couple decides to petition for another K1 Visa because their situation has changed and they feel that now a marriage is workable. Do they need to obtain a waiver in order to obtain a second K1 Visa? The answer: Probably.

Depending upon the time frame of the petitions it may be necessary to obtain a waiver in order to have a subsequent I-129f petition (the petition form for a K1) approved. If the previous petition was filed within 24 months of the subsequent petition then a waiver is likely a necessity. All is not lost by needing to file for a waiver. They are generally granted where the couple explains the situation and why 2 K1 visas were filed by the same couple within a 2 year period. It is very wise to retain a US attorney in Thailand in order to prepare a Thai loved one’s K1 Visa petition in general and particularly in any situation where a USCIS waiver is necessary.

For more information please see

US Visa Thailand

Fiance Visa Thailand

Note: Nothing in this post should be used in lieu of legal advice from a duly licensed attorney in your jurisdiction

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