Integrity Legal

Posts Tagged ‘K-1 Visa’

19th September 2018

In what may be one of the most significant developments in immigration practice in quite some time, it recently came to this blogger’s attention via a policy memorandum from the United States Citizenship and Immigration Service (USCIS) that the USCIS is radically changing their policies with respect to Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs). For those unaware, an RFE is issued in a case where the adjudicating officer of an immigration petition is not fully satisfied that the beneficiary and/or the petitioner meet the legal requirements. An NOID is similar and may allow the petitioner to rectify a petition notwithstanding prior inadequacy.

That being stated, the procedures regarding issuance of RFEs and NOIDs have been fundamentally altered pursuant to policy memorandum PM-602-0163 dated July 13, 2018 entitled “Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM)Chapter 10.5(a), Chapter 10.5(b)” The provisions of this memo dictate new guidelines for adjudicators of immigration petitions. To quote directly from the USCIS website:

The 2013 PM addressed policies for the issuance of RFEs and NOIDs when the evidence submitted at the time of filing did not establish eligibility. In practice, the 2013 PM limited denials without RFEs or NOIDs to statutory denials by providing that RFEs should be issued unless there was “no possibility” of approval. This “no possibility” policy limited the application of an adjudicator’s discretion.

The policy implemented in this guidance restores to the adjudicator full discretion to deny applications, petitions, and requests without first issuing an RFE or a NOID, when appropriate.

Although the ramifications may not be immediately apparent, especially to those who do not deal with the immigration apparatus on a regular basis, this change in policy is rather profound. The prior doctrine which required that an adjudicator denying a petition without first issuing an RFE or NOID show that there was “no possibility” that a case could receive approval provided a great deal of limitation upon an adjudicator’s ability to unilaterally deny an immigration petition. The removal of this policy encumbrance allows future adjudicators a great deal more discretion in issuing immediate petition denials. The sources noted above go on to note that the primary reason for the change in policy stems from the desire to discourage so-called “placeholder” or “frivolous” filings (which under certain circumstances is laudable as such cases can unnecessarily clog up the immigration processing channels), but there could be significant ramifications for cases which would not necessarily fit those descriptions.

For example, in K-1 visa petitions it is now more likely that more denials will be issued in the future in such cases where it has not been incontrovertibly proven that the couple has in fact met in person within 2 years of filing for the benefit (the so-called Meeting Requirement). Furthermore, in cases involving petitioning for a fiance visa it seems logical to infer that future adjudications may result in a  denial where the petitioner has failed to demonstrate that both parties maintain the requisite intention to marry in the USA.

It is difficult to speculate at this time exactly how this change in policy will be implemented and the full consequences associated therewith. However, two things are clear: 1) visa petitions are likely to be more susceptible to denial moving forward and 2) those thinking of undertaking a do-it-yourself approach to petitioning for a fiancee or marriage visa are well advised to seriously consider the negative aspects of failing to seek professional legal assistance in immigration matters as failure to fully delineate a case clearly and concisely in the initial petition for immigration benefits could result in a denial and thereby a loss of time and resources.

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7th December 2017

Khmer language translation of the video found here: ទិដ្ឋាការ​ប្រភេទ​ K-1 ពី​ប្រទេស​កម្ពុជា៖

នៅ​ក្នុង​វីដេអូ​នេះ យើង​នឹង​ពិភាក្សា​អំពី​ទិដ្ឋាការ​ប្រភេទ​ K-1 សំរាប់​គូដណ្ដឹង ​ក្នុង​បរិបទ​នៃ​ការ​ដំណើរ​ការ​របស់ការិយាល័យ​កុងស៊ុល​នៃ​​ស្ថានទូត​សហរដ្ឋ​អាមេរិក​ប្រចាំ​នៅរាជធានី​ភ្នំពេញនៃ​ព្រះរាជាណាចក្រ​កម្ពុជា ។

សំរាប់​អ្នក​ដែល​បាន​ចូល​មក​កាន់​ទំព័រ​របស់​យើង ហើយ​បាន​ឃើញ​វីដេអូ​មួយ​ចំនួន​របស់​យើង​ហើយ អ្នក​ប្រហែល​ជា​ដឹង​ហើយ​ថា​យើង​មាន​ទីតាំង​នៅ​ក្នុង​ទីក្រុង​បាងកកនៃ​ប្រទេស​ថៃ ។ យើង​ធ្វើ​ការ​ដោះស្រាយជា​​ចម្បង​លើ​សំណុំរឿង​អន្តោប្រវេសន៍ ។ ជា​ទូទៅ​គឺ​សំរាប់​ជនជាតិ​ថៃ​អាមេរិកាំង ហើយ​យើង​ធ្វើ​ការ​រត់​ការ​សំណុំរឿង​ជាច្រើន​ពាក់ព័ន្ធ​នឹង​សំណុំរឿង​អន្តោប្រវេសន៍សំរាប់​គ្រួសារ​អាមេរិក ទិដ្ឋាការ​ប្រភេទ​គូដណ្ដឹង ទិដ្ឋាការប្រភេទ​រៀបការ ។ល។

ដោយ​សារ​យើង​មាន​ទីតាំង​ស្ថិត​នៅ​ក្នុងទី​ក្រុង​បាងកក មិន​មែន​មាន​ន័យ​ថា​យើង​ធ្វើ​ការ​ផ្ដាច់​មុខ​លើរឿង​អន្តោប្រវេសន៍​អាមេរិក​​តែនៅ​ក្នុង​ប្រទេស​នេះ នោះ​ទេ ។ វា​គួរ​អោយ​ចាប់​អារម្មណ៍​ដែរ ដែល​មេធាវីអន្តោប្រវេសន៍ជា​ច្រើនដែល​ធ្វើ​ការ​នៅ​សហរដ្ឋ​អាមេរិក​ហាក់​ដូច​ជាធ្វើ​ការ​ជាមួយ​អតិថិជន​ចំរុះ​ជាតិសាសន៍ ប៉ុន្តែ​ផ្ទុយ​ទៅ​វិញ​ យើង​នៅ​ទី​ក្រុង​បាងកក​នេះ ហាក់​ដូច​ជា​ធ្វើ​ការ​តែ​ជាមួយ​​ជនជាតិ​ថៃ​ ។ ទោះ​បី​ជា​យ៉ាង​ណា​ក៏​ដោយ ខ្ញុំ​ក៏​ធ្លាប់​បាន​ធ្វើ​ការជាមួយ​សំណុំរឿងមួយចំនួនដែរ​ដែល​​ពាក់​ព័ន្ធ​នឹង​ស្ថានទូត​សហរដ្ឋ​អាមេរិក​ប្រចាំ​នៅរាជធានី​ភ្នំពេញនៃ​ព្រះរាជាណាចក្រ​កម្ពុជាដែរ​ ដោយសារ​តែ​ប្រទេស​នេះ​នៅ​ជិត​ប្រទេស​ថៃ ។ សំរាប់​អ្នក​ដោយ​ចាប់​អារម្មណ៍​លើ​ដំណើរ​ការដោយ​មើល​ពី​ទិដ្ឋភាព​ទូទៅ ជា​ការ​ល្អ​បំផុត​គឺ​អ្នក​គួរ​មើល​ទៅ​លើ​រឿង​នេះ​ជា​២​ដំណាក់​កាល៖ ដំណាក់​កាល​មួយ​គឺ​ពាក់​ព័ន្ធ​នឹង​ក្រសួង​សន្ដិសុខ​មាតុភូមិ ។ ស្ថាប័នអន្តោប្រវេសន៍ ​ហៅ​កាត់​ថា USCIS​ ស្ថិត​នៅ​ក្រោម​ការ​គ្រប់​គ្រង​របស់​ក្រសួង​សន្ដិសុខ​មាតុភូមិ នឹង​ចាប់​ផ្ដើម​ដំបូង​ដោយ​ធ្វើ​ការ​សំរេច​យល់​ព្រម​លើ​ទំរង់បែបបទធានា I-129F ។ ពាក្យ​ធានា​នេះ គឺ​ជា​ចំនុច​ចាប់​ផ្ដើម​ដំបូង​នៃ​ដំណើរ​ការ​នេះ ។ អ្នក​ត្រូវ​ដាក់​ពាក្យ​ធានា ហើយ​អ្នក​ត្រូវ​តែ​ទទួល​បាន​ការ​សំរេច​យល់​ព្រម​ពី​ USCIS​ នៃ​ក្រសួង​សន្ដិសុខ​មាតុភូមិ មុនពេល​ដែល​អ្នក​អាច​បន្ត​ដំណើរ​ការ​ជាមួយ​នឹង​ទិដ្ឋាការ​ប្រភេទ​ K-1 រប​ស់​អ្នក​ ។ បន្ទាប់​ពី​ទទួល​បាន​ការ​​សំរេច​យល់​ព្រមលើ​ពាក្យ​ធានា​របស់​អ្នក​ហើយ យើង​នឹង​និយាយ​អំពី​តំរូវ​ការ​លំអិត​ពាក់​ព័ន្ធ​នឹង​ពាក្យ​ធានា ។ អ្វី​ដែល​ត្រូវ​កំណត់​ចំណាំ​ជាង​គេ​បំផុត​នោះ​ គឺ​ដៃ​គូ​ដែល​ដាក់​ពាក្យ​ធានាទាំង​ពីរ​នាក់​​ត្រូវ​តែ​នៅ​ទំនេរ​និង​អាច​រៀប​ការ​បានដោយ​ស្របច្បាប់​ នៅ​ពេល​ដែល​ពាក្យ​ធានា​ត្រូវ​បាន​ដាក់​ ។ លើស​ពី​នេះ​ទៅ​ទៀត ភាគីទាំង​ពីរ​ត្រូវធ្លាប់​បាន​ជួប​គ្នា​ផ្ទាល់​ក្នុង​កំឡុង​ពេល​២ឆ្នាំមុន​ពេល​ដែល​ពួក​គេ​ដាក់​ពាក្យ​ធានា​សុំ​ទិដ្ឋាការ​ប្រភេទ​ K-1 ។ រឿង​ដែល​សំខាន់​ជាង​គេ​ដែល​ត្រូវ​ចាំគឺ «អ្នក​ត្រូវ​តែ​នៅ​ទំនេរ​និង​អាច​រៀប​ការបាន​ដោយ​ស្របច្បាប់ ។ អ្នក​មិន​អាច​ស្ថិត​នៅ​ក្នុង​ស្ថានភាព​កំពុង​លែង​លះនោះ​ទេ ។ អ្នក​​ត្រូវតែ​លែង​លះ​រួច​រាល់​ហើយ ប្រសិន​បើអ្នក​មាន​ប្ដី​ឬ​ប្រពន្ធ​មុន ។ ​អ្នក​ត្រូវ​តែ​នៅ​ទំនេរ​និង​អាច​រៀប​ការ​បានដោយ​ស្របច្បាប់ ហើយ​អ្វី​ដែល​អ្នក​ត្រូវចង​ចាំ ​ដែរ​នោះ​គឺ​ថា​ តំរូវ​ការ​នេះ​អាច​នឹង​មាន​នៅ​ក្នុងយុត្តាធិការ​នៃ​ច្បាប់​សាមញ្ញ ឬ​ពេល​ខ្លះ​ក៏​មាន​នៅ​ក្នុងយុត្តាធិការ​នៃ​​ច្បាប់​រដ្ឋ​ប្បវេណី​ផង​ដែរ ។ អ្នក​មិន​អាច​ស្ថិត​នៅ​ក្នុង​ស្ថានភាព​មាន​ប្ដី​ឬ​ប្រពន្ធ​ នៅពេល​ដំណើរ​ការ​ទិដ្ឋាការ​ប្រភេទ​ K-1 នោះ​ទេ បើ​ទោះ​បី​ជា​អ្នក​ទាំង​ពីរ​ជាប្ដី​ប្រពន្ធ​ក៏​ដោយ ។ អ្នក​ត្រូវ​រង់ចាំ និង​ស្ថិត​នៅ​ក្នង​ស្ថានភាព​ជាគូដណ្ដឹង រហូត​ដល់​គូដណ្ដឹងបរទេសរបស់​អ្នក​ដែល​ក្នុង​សំណុំរឿង​នេះ ជា​ជនជាតិ​ខ្មែរ ចាកចេញ​ពី​រាជធានី​ភ្នំពេញ ទៅ​កាន់​សហរដ្ឋអាមេរិក ហើយ​បន្ទាប់​មក​អ្នក​នឹង​មាន​រយៈពេល​ ៩០​ថ្ងៃ ដើម្បី​រៀប​អាពាហ៍​ពិពាហ៍ និង​ដាក់​ពាក្យ​សុំ​ផ្លាស់​ប្ដូរ​ស្ថានភាព​អន្តោប្រវេសន៍​ ។ ការ​​ផ្លាស់​ប្ដូរ​ស្ថានភាព​អន្តោប្រវេសន៍ គឺ​ជា​ដំណើរ​ការ​មួយ​ផ្សេងទៀត ។ វា​កើតឡើង​បន្ទាប់​ពី​ការ​រៀបការ​នៅ​សហរដ្ឋ​អាមេរិក ។ មាន​វីដេអូ​មួយ​ផ្សេងទៀត​នៅ​ក្នុង​ទំព័រ​នេះ ដែល​ពិភាក្សា​ជាពិសេស​លើ​សេចក្ដី​លំអិត​នៃ​ការ​​ផ្លាស់​ប្ដូរ​ស្ថានភាព​អន្តោប្រវេសន៍ ។ យើង​អាច​និយាយ​បាន​ថា ជា​មូលដ្ឋានវា​គឺ​ជា​ដំណើរ​ការដែល​គូដណ្ដឹងបរទេស​ ដែល​បន្ទាប់​មកនឹង​ក្លាយ​ទៅ​ប្តី​ឬ​ប្រពន្ធ នឹង​ទទួល​បាន​សិទ្ធិ​ជាអ្នក​រស់​នៅ​ជា​អចិន្ត្រៃយ៍​ដោយ​ស្របច្បាប់ ឬ​ដែល​ត្រូ​វ​បាន​គេ​ស្គាល់ថា​ជា​អ្នក​កាន់​ green card នៅ​សហរដ្ឋ​អាមេរិក ។ អញ្ចឹង​ វា​គឺ​ជា​រឿង​ដែល​កើត​ឡើង​ចុង​ក្រោយ​នៃ​ដំណើរ​ការ​នេះ ។ ត្រឡប់​មក​និយាយ​ពីសំណុំបែបបទធានា​វិញ ដៃ​គូត្រូវ​តែ​បាន​ជួប​គ្នា​ផ្ទាល់​ក្នុង​កំឡុង​ពេល​២ឆ្នាំ​មុន​ការ​ដាក់​ពាក្យ ត្រូវ​តែ​នៅ​ទំនេរ និង​អាច​រៀប​ការបាន​ដោយ​ស្របច្បាប់​ ។ មាន​ពត៌មាន​លំអិត​ជា​ច្រើន​ទៀត​ដែល​ពាក់​ព័ន្ធ​នឹង​រឿង​នេះ​ ដែល​ខ្ញុំ​នឹង​មិន​ពិភាក្សា​ស៊ី​ជម្រៅ​ពេក​ទេ ។ ​សន្មត់​ថា ស្ថាប័ន USCIS DHS​ បាន​ធ្វើ​ការ​សំរេច​យល់​ព្រម​លើ​ពាក្យ​ធានា ។ សំណុំរឿង​នេះ​នឹង​ត្រូវ​បញ្ជូន​​យ៉ាង​លឿន​ទៅ​កាន់​មជ្ឍមណ្ឌល​ទិដ្ឋាការ​ជាតិ ដែល​ដើរ​តួ​ដូច​ជា​កន្លែង​លាង​សំអាតឯកសារ ឬ​ទីតាំង​សំរាប់​បញ្ជូនឯកសារ ដើម្បី​បញ្ជូន​សំណុំ​រឿង​នេះ​ទៅ​កាន់ស្ថានទូត ឬ​ស្ថាន​កុងស៊ុល​ក្រៅ​ប្រទេស​ដែល​សមស្រប ហើយ​នៅ​ក្នុង​សំណុំរឿង​នេះ​គឺកម្ពុជា ។ សំណុំរឿង​នឹង​ត្រូវ​បញ្ជូន​ទៅ​រាជធានី​ភ្នំពេញនៃ​ប្រទេស​កម្ពុជា ហើយ​នៅ​ពេល​នោះ អ្នក​ត្រូវ​ធ្វើ​ការ​រត់​ការ​តាម​ដំណើរ​ការ​ជាក់លាក់​របស់​ផ្នែក​ទិដ្ឋាការនៃការិយាល័យ​កុងស៊ុល​របស់​ស្ថាន​ទូត​នៅទីនោះ ។

ទិដ្ឋាការ​ប្រភេទ​ K-1 មាន​លក្ខណៈគួរ​អោយ​ចាប់​អារម្មណ៍ ដោយ​សារ​វា​ត្រូវ​បាន​គេ​ចាត់​ទុក​ថា​ជា​ប្រភេទ​ទិដ្ឋាការ​ដែល​មាន​គោល​បំណង​ពីរ ។ បើ​យើង​និយាយ​តាម​ច្បាប់ វា​ស្ថិត​នៅ​ក្នុង​ប្រភេទ​ទិដ្ឋាការ​មិន​មែន​អន្តោ​ប្រវេសន៍ ប៉ុន្តែ​ចំពោះ​​ការ​ដំណើរ​ការ​នៅ​ក្នុង​កុងស៊ុល និង​ដំណើរ​ការនៃ​ដាក់​ពាក្យ វា​ត្រូវ​បាន​គេ​គិត​ថា​មាន​បំណងដើម្បីទទួល​បាន​​ទិដ្ឋាការ​អន្តោប្រវេសន៍ ដូចជា​​ទិដ្ឋាការប្រភេទ​ប្តី​ប្រពន្ធ​ ឬ CR-1 ឬ IR-1 ដែរ ប៉ុន្តែ​លើក​លែង​តែ​ទិដ្ឋាការប្រភេទ K-3 ។ ដូច្នេះ ជា​សរុប​រួមនៅ​ក្នុង​វីដេអូនេះ ដំណើរ​ការ​នៃ​ការ​ដាក់​ពាក្យ​សុំយក​គូដណ្ដឹងជនជាតិ​ខ្មែរ​ទៅ​កាន់​សហរដ្ឋ​អាមេរិក ចាប់​ផ្ដើម​ពី​សហរដ្ឋអាមេរិក ដំណើរ​ការ​តាម​រយៈភ្នាក់ងារ​មួយ​ចំនួន​នៅ​ទី​នោះ មុន​ពេល​បញ្ជូន​ទៅ​ដល់​ស្ថានទូតសហរដ្ឋអាមេរិកប្រចាំ​នៅ​រាជធានី​ភ្នំពេញ ។ បន្ទាប់​មក​ទៀត មាន​ឯកសារ​ជា​ច្រើន​ដែល​ពាក់​នឹង​ដំណើរ​ការ​រួម​ និង​ឯកសារ​មួយ​ចំនួន​ដែល​ត្រូវ​បកប្រែពី​ភាសាខ្មែរ ទៅ​អង់គ្លេស ។ សំរាប់​សេវាកម្ម​របស់​យើង​ខ្ញុំ​ យើង​អាច​ធ្វើ​ការ​បក​ប្រែ​ឯកសារ​ទាំង​នោះបាន​ ដែល​វា​គឺជា​ផ្នែកដ៏​សំខាន់មួយ​នៃអ្វី​​យើង​ត្រូវ​ធ្វើ​ការ​រត់​ការជាធម្មតា ។ ជា​រឿយៗ ខ្ញុំ​ត្រូវ​ទៅ​រាជធានី​ភ្នំពេញ ដើម្បី​ដោះស្រាយ​សំណុំរឿង​ជាមួយ​អតិថិជន ហើយ​ពេល​ខ្លះ​អាច​នឹង​ត្រូវ​ការ​ការ​បក​ប្រែដែរ ។ ប៉ុន្តែ​និយាយ​ជារួម​ទៅ បើ​យើង​មើល​ទៅ​លើ​លក្ខណៈទូទៅ​នៃ​ដំណើរ​ការ​នៃ​ការ​ដាក់​ពាក្យ​នេះ ហើយ​និង​អ្វី​ដែល​យើង​អាច​ជួយ​បាន​ប្រសិន​បើ​ចាំ​បាច់ គឺ​ថា​វា​ត្រូវ​ចាប់​ផ្ដើម​ចេញពី​សហរដ្ឋ​អាមេរិក ហើយ​និង​មក​ស្ថានទូត​ជា​ចុង​ក្រោយ ។ ខ្ញុំ​គិត​ថា​វា​អាច​នឹង​ទាម​ទារ​ពេល​ប្រហែល​ជា​ ៨ ឬ ៩​ខែជា​មធ្យម សំរាប់​ដំណើរ​ការ​ទាំង​អស់​ដើម្បីទទួល​បាន​ទិដ្ឋាការ​ប្រភេទ​ K-1 ។ វា​អាច​ដំណើរ​ការ​លឿន​ ឬ​យឺត​ជាង​នេះ ។ អ្វី​ដែល​ត្រូវ​ចាំ​ពាក់​ព័ន្ធ​នឹង​ពាក្យ​សុំ​ទិដ្ឋាការ​ទៅសហរដ្ឋអាមេរិក គឺ​ថា​វា​ដូច​ជា​ដុំ​ព្រិល​អញ្ចឹង ដុំ​នីមួយៗ​មាន​លក្ខណៈពិសេស​ខុសៗគ្នា ហើយ​អ្នក​អាច​នឹង​ឃើញ​ថា​សំណុំរឿង​មួយ​អាច​នឹង​ដំណើរ​ការ​យ៉ាង​លឿនដោយ​នឹក​ស្មាន​មិន​ដល់ ។ យើង​ធ្លាប់​រត់​ការ​សំណុំរឿង​មួយ​ដែល​ដំណើរ​ការ​យ៉ាង​លឿន បើ​ប្រៀបធៀប​ទៅ​នឹង​សំណុំរឿង​ផ្សេងៗ​ទៀត​ជា​មធ្យម ហើយ​ខ្ញុំ​គិត​ថា​នេះគឺ​ដោយ​សារ​តែ​វា​ទៅ​កាន់​ចំទីកន្លែង និង​ពេល​វេលាដែល​ត្រូវ​ជា​ទី​បំផុត ដែល​ធ្វើ​អោយ​វា​ដំណើរ​ការ​លឿន ខណៈពេល​ដែល​សំណុំរឿង​ខ្លះ​ដំណើរ​ការ​យឺត ។ សំណុំរឿងនីមួយៗមាន​លក្ខណៈខុសៗគ្នា​ទៅតាម​សំណុំរឿង និង​ស្ថានភាព​ផ្សេងៗគ្នា ប៉ុន្តែ​ដូច​អ្វី​ដែល​យើង​បាន​និយាយ ទិដ្ឋាការ​ប្រភេទ​ K-1 សំរាប់​ពលរដ្ឋខ្មែរ គឺ​ត្រូវ​ចាប់​ផ្ដើម​ចេញ​ពី​សហរដ្ឋ​អាមេរិក ហើយ​វា​នឹង​ត្រូវ​មក​បញ្ចប់​នៅ​ក្នុង​ប្រទេស​កម្ពុជា ។ បន្ទាប់​ពីពលរដ្ឋ​ខ្មែរនោះ​ធ្វើ​ដំណើរ​ទៅ​កាន់​សហរដ្ឋអាមេរិក​ ហើយ​រៀបការ​ជាមួយ​គូដណ្ដឹង​ដែល​មាន​សញ្ជាតិ​អាមេរិក​របស់​គេ​ហើយ ពួក​គេ​អា​ច​ដាក់​ពាក្យ​សុំ​ផ្លាស់​ប្ដូរ​ស្ថាន​ភាព​អន្តោប្រវេសន៍ និង​ទទួល​បាន​ប័ណ្ណ Green Card នៅ​ក្នុង​សហរដ្ឋអាមេរិក ។

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23rd November 2017

The following is a transcript of the video which can be found here: K-1 Visas from Vietnam

In this video we are going to be discussing K-1 Visas specifically in the context of cases that will be processed presumably through the US Consulate in Ho Chi Minh City primarily.

As can be heard from the preamble to this video, I’m an American attorney but we’re located here in Bangkok. Primarily we do the vast majority of our cases do involve Thai nationals though we do deal with cases regionally and I sort of thought about it the other day and I said that you know, I really don’t do enough videos talking about some of the other posts and other nationalities we deal with in the immigration context within the immigration practice here. So I went ahead and decided to do this video.

The way to look at the K-1 process specifically and the K-1 fiancée process is slightly different than dealing with other family based petitions. First of all, you have to be intending to marry an American citizen unlike marriage visas where you can be married to a lawful permanent resident and process a case that way for one of the preference categories. K-1 Visas are only between a foreign national and an American citizen. Both parties have to be legally free to marry, that’s rather important. This can come up and cause some confusion, and cause some problems in a lot cases because folks think “oh, we filed and now we can marry”. “No, you have to remain fiancées throughout the whole process!”  You have to be legally free to marry up until the fiancée, the Vietnamese fiancée comes to the United States at which point it is then possible to go ahead and get married in the United States and file for adjustment of status to lawful permanent residence. In another video on this channel I discuss specifically adjustment of status. Adjustment of status is the process by which an individual comes to the United States, in this case in K-1 status, gets married and goes ahead and  lawful permanent residence attached,  aka Green Card Status. Another thing to keep in mind with respect to the K-1 specifically, the couple in question needs to have met physically in person within 2 years of the filing of the petition for the visa benefits.  There are exceptions to this rule but they are very, very narrow in scope and for that reason it’s best to effectively just go ahead and say “look, I have to meet in person. That usually means they are going to have to travel at least once to, in the case of a Vietnamese fiancée, presumably Vietnam and meet physically in person, the Vietnamese fiancée before filing can be perfected or at least before an acceptable filing can be perfected.

Some things to think about as far as how it works.  Well the case starts off over at the Department of Homeland Security, specifically USCIS, United States Citizenship and Immigration Services. They go ahead and process the petition. If the petition is approved, the case moves to the National Visa Center which is under the auspices of the Department of State. The National Visa Center, they act as a sort of clearing house or sort of administrative hub for sending these cases out, making sure it gets from the approval at DHS and gets to the appropriate embassy or consulate. In the vast majority of cases involving Vietnam you’re  not going to be dealing with the post in Hanoi, in the vast majority of cases at least that we deal with, you’re dealing with the consulate in Ho Chi Minh City. It is a higher volume post, so processing can take a little bit longer. In Vietnam, as far as Consular processing goes, it can take a little bit longer when compared to other posts in the region, Bangkok included, but Bangkok is a pretty high volume post as well. Some of the other smaller posts, Cambodia, Laos definitely, even Yangon, don’t quite have the volume so things may move a little bit more quickly.  But that being said, it’s just the process you have to deal with and every case is sort of being unique and you have to deal with the circumstances as you take them.  So that being said, it will go to the Consulate in Ho Chi Minh City and at that point the case, the Vietnamese fiancée will be informed of the protocols that he or she needs to undertake to go ahead and complete the consular processing portion. In the cases where we have been retained to assist in these matters, we often assist with translations, compilation of documentation, filling out of various forms, both online and physical forms cases and in a lot of cases going ahead and submitting the request for the actual visa application interview.  And then on top of that we go ahead and assist in preparing certain questions or I really hate to say we provide the questions that they are going to ask, we don’t; we provide an overview with respect to how, what is the process looking for? What kind of due diligence is the Consular Officer likely to be interested in conducting? In most cases it’s ascertaining that the couple is a genuine couple, they are legally free to marry, they’ve remained legally free to marry, they adhere to the law, they adhere to the Immigration policy, they don’t have any legal grounds of inadmissibility and all the documentation relevant to the case that that officer feels is pertinent is present and accounted for with respect to the underlying application. That’s basically what they’re looking to do. It’s not an exercise in “stump the applicant”, it’s an exercise in due diligence. They want to make certain that the couple is bona fide.  So for that reason, that is sort of a general overview of what the interview process is like. If the officer requests further documentation, they can issue what is called a 221-G request for further documentation.

In some cases they may feel that the case is denied for various reasons. They have to give a legal reason why they are denying the case. In most cases that I have dealt when you get a denial, you are looking at a legal ground of inadmissibility, and a legal ground of inadmissibility is defined in the Immigration Nationality Act and in some cases it’s often possible to overcome that legal ground of inadmissibility through use of an I-601 waiver. There are various videos on this channel with respect to the I-601 specifically but to sort of just sum up K-1 visa processing through Vietnam, you’re looking at a matter of months; I think you are looking at probably 8 or 9 months with respect to the overall “door to door” process with respect to processing a successful K-1 visa, on average.  There are outliers on both sides. Every case is unique; it’s like a snow flake. But that being said, that’s kind of a general overview with respect to timeline, the thing to keep in mind, just sort of in sum. It’s a 3 part process. It effectively begins in the US, goes through various offices in the US, finally to wind up, generally speaking, at the US Consulate in Ho Chi Minh City where the matter will be adjudicated by the Consular Officer at the Immigrant Visa Unit. Again, K-1s are interesting because they’re a non-immigrant visa that has dual intent. You are actually a non-immigrant visa but to all intents and purposes, the consular section treats it as if it were an immigrant visa and you go ahead and undertake the interview and hopefully, presuming a successful interview, a visa will be issued shortly after the interview date.

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12th November 2017

Below is a transcript of the video which can be found at the following link: K-1 Visas From Laos

In this video today we are going to be discussing K-1 visas but with the specific context of Laos. As previously mentioned, we’re based here in Bangkok and for those who have checked out this channel before, you can probably surmise that a lot of our activity with respect to, especially Immigration practice surrounds the US Embassy here in Thailand and a lot of our clientele are Thai nationals. But that being said, we do deal with cases that come up with respect to nationalities within this region rather frequently so it’s not uncommon for us to have a case or cases that may or may not end up, or will likely end up at the US Embassy in Vientiane, Laos.

The overall process for those of you who are watching this video and have never really dealt with the K-1 before. The process has got to begin in the United States, you have got to deal with DHS, the Department of Homeland Security, US Citizenship and Immigration Services, petition needs to be filed for fiancée visa benefits and certain requirements that are inherent to the petition with some exceptions, the couple needs to have met within 2 years of initial filing for K-1 visa benefits, they have to physically have met in person at least once within 2 years of the filing. The other thing to keep in mind with respect to the K-1 visa or the petition thereof is both parties need to be legally free to marry and moreover have to remain that way throughout the process. So, this can kind of be a little bit confusing to folks; you can’t marry each other while you are going for a fiancée vise benefit because it’s specifically is a fiancée visa benefit. So you can’t get legally married to one another. Now having a party to celebrate impending nuptials or something like this, that’s a different story but something to keep clearly in mind with respect to the fiancée visa category.

The thing that’s interesting with respect to Laos is you often will see a little bit of, you’ll see the occasional Laos national living and working in Thailand who will process through the embassy down here in Bangkok because they’re living and working down here in Bangkok and where certain local jurisdictions requirements are met for consular processing here, a Lao national could theoretically process through the US Embassy in Bangkok rather than up in Laos. Depending on the circumstances of the given case, that may or may not be more or less convenient for the applicant in question but that being said, presumptively, consular processing jurisdiction is based on the nationality of the applicant so if they’re a Lao national that happens to live in Thailand, but would prefer to process up in Laos that is certainly acceptable and they can go ahead and do that.

So basically, once the case, let’s presume it gets approved, the petition gets approved by the Department of Homeland Security, the case will move over to the national visa center. The National Visa Center acts as a sort of clearing house, or routing hub if you will, for immigrant visas, or for cases going throughout the world on behalf of the Department of State. It will then go to the Embassy in Vientiane and the Consular Section, the Immigrant Visa section of the Embassy in Vientiane will go ahead and inform the applicant what needs to be undertaken in order to finish up the process to get the visa issued.  It should be noted, it’s rather an interesting aspect of the K-1 visa it that it is considered a dual intent travel document and the reason that this is interesting is because, as a dual intent travel document, it’s a non-immigrant visa category, but for practical purposes, for consular processing purposes, it is treated as if it was an immigrant visa category. So that’s something to sort of keep in mind and once the applicant obtains their K-1 visa, they can go to the United States within the window of time for the expiration of the underlying visa, and then once they arrive in the United States they can go ahead and remain in the US lawfully for 90 days but with the sole purpose of marrying their American citizen fiancée and then subsequently adjusting status to lawful permanent resident. There is another video on this channel, which specifically gets into adjustment of status. I recommend those who are interested in that topic,  to specifically go to that video to check that out but suffice it to say, once one has adjusted to lawful permanent resident, the Green Card status, that’s effectively sort of the end of the  process, in a way. Definitely, I look at is as a kind of conclusion  of what was being sought which was bringing ones Lao fiancée into the United States to live permanently with the American citizen counterpart. So to sum up, the thing to keep in mind with respect to how this process works, it starts at the Department of Homeland Security, proceeds to the National Visa center and then finally ends up at the Consular Section of the US Embassy in Vientiane, Laos.

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10th November 2017

The following is a transcript of the video found here: K-1 Fiance Visas From Cambodia:

In this video we are going to be discussing the K-1 Fiancee Visa specifically in the context of Consular processing in the Kingdom of Cambodia; specifically the US Embassy in Phnom Penh.

For those of you who have checked out this channel and seen some of the other videos, you probably know that we are based in Bangkok, Thailand, we do deal primarily with immigration matters arising with Thai-American nationality generally, we deal with a lot of US family immigration matters, fiancée visas, marriage visas etc.

Just because we’re located here, does not mean necessarily that this is our exclusive bailiwick with respect to US immigration.  It is sort of interesting in so far as immigration attorneys who practice in the United States tend to have a plethora of rather wide range of nationality of clientele that they deal with, whereas, it is sort of somewhat inverted by us being based in Bangkok we primarily deal with Thai nationals. But that being said, I have dealt with cases involving the US Embassy in Phnom Penh, Cambodia, quite a number of cases involving that particular post, mostly because of its nearby proximity to Thailand here.  But that being said, for those who are interested in sort of an overview of the process it’s best to sort of look at it in 2 phases: One involves the Department of Homeland Security.  The Immigration apparatus, USCIS under the auspices of DHS, Department of Homeland Security, is going to go ahead and adjudicate what is called an I-129 F petition. That petition is basically the starting point of the process if you will. You have got to file a petition and you have got to get approval from the Department of Homeland Security, USCIS, before being able to proceed further with the K-1 visa. After the initial adjudication of the petition, and let’s go into some details of some requirements associated with the petition, most notably the couple in question must both be legally free to  marry at the time that the application is filed. Moreover, both parties need to have met physically, in person within a 2-year period of their initial filing of the petition for a K-1 visa status. The big things to keep in mind is that “You have got to be legally free to marry”, you can’t be getting a divorce, you have to already be divorced if you have a prior spouse; you have got to be legally free to marry and the other thing to keep in mind is this can sort of happen in certain common law jurisdictions or sometimes even in civil law jurisdictions. You can’t get married legally while the K-1 is processing, even if it’s to each other, you have to wait and remain fiancées until the foreign fiancée in this case Khmer, presumably coming out of Phnom Penh, comes to the United States and then you have 90 days to get married and file to adjust status. Adjustment of status is a different process. It comes subsequent to marriage, in the United States. There’s another video on this channel which specifically discusses the details of adjustment of status. Suffice it to say that basically that’s the process by which the foreign fiancée, and later spouse, becomes a lawful permanent resident, aka a green card holder in the United States.  So that’s sort of the back end of the process. Going back, petition, have to have met within 2 years of filing, need to be legally free to marry, there’s other details associated with this, I am not going to get too deep into that side of things, but presuming USCIS DHS approval, the matter is going to move quickly over to the National Visa Center which acts as a sort of clearing house or routing hub to send it to the appropriate Embassy or  Consulate abroad, in the case of Cambodia Nationals, presumably that’s going to be Phnom Penh , Cambodia and at that point, you need to deal with the specific Consular processing mandates of the visa section of the Embassy over there.

It is interesting to bring up with respect to K-1 visas, they are what is considered a dual intent visa. So technically speaking, they’re non-immigrant category but for purposes of consular processing, and sort of the application process, they are treated for all intents and purposes as Immigrant visas, just like a spouse visa, CR -1 IR -1 or “shades of grey” here but the K-3 visa. So basically to sum up, with respect to this video, the process for getting a fiancée of Cambodian nationality into the United States, begins in the United States, progresses through multiple agencies over there before getting to the US Embassy in Phnom Penh and then there’s various documentation associated with the overall process and various documents which need to be translated from Khmer to English etc. Our services, we can provide those translations, part and parcel with what we deal with on a regular basis. I oftentimes have to go over to Phnom Penh to deal with clients as well and that can sometimes come up. But just generally speaking, as sort of from an overview of how the process works and what we can do to assist if necessary is basically, it starts in the US, comes over to the Embassy and finally, I think it is pretty safe to say probably 8 months, 9 months on average, all in, the processing time for getting a K-1. It can move faster, it can move slower. The thing to keep in mind with respect to all US visa applications is they’re like snowflakes, every one of them is unique, every one of them is slightly different and you are going to see one case may move inordinately quickly, we actually had one process through quite quickly as far as sort of compared to averages and I think it sort of just hit the right desk at the right minute and just sort of went through whereas some cases they just move more slowly.  It’s going to differ, case to case, circumstance to circumstance but that being said, with respect specifically to Cambodia K-1 Visas again are going to start processing in the United States, they’re going to end up in Cambodia and then once the Cambodian national comes to the United States and marries their American citizen fiancée, they can go ahead and petition to adjust status and receive a green card in the US.

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3rd January 2017

It recently came to this blogger’s attention that the officials of the Royal Thai Immigration Police have made policy changes regarding passport holders of certain countries. It appears that passport holders from 37 different countries will now be able to obtain a 30 day visa exemption stamp by crossing a land border into Thailand. The recently announced list includes the following countries:

Australia, Austria, Belgium, Bahrain, Brunei, Czech Republic, Denmark, Estonia, Finland, Greece, Hungary, Iceland, Indonesia, Ireland, Israel, Kuwait, Liechtenstein, Luxembourg, Malaysia, Monaco, Netherlands, New Zealand, Norway, Oman, Philippines, Poland, Portugal, Qatar, Singapore, Slovakia, Slovenia, Spain, South Africa, Sweden, Switzerland, and Turkey

It should be noted that most holders of passports on the above list were already eligible to receive 30 day exemption stamps when arriving at one of Thailand’s many international airports. However, 30 day exemption stamps were apparently not available when arriving at land borders. While this liberalization is likely welcome news to prospective tourists who wish to travel to countries surrounding Thailand it should be be analyzed in conjunction with recent announcements regarding so-called border runs.

As previously noted on this blog and other sites, Thai border runs are effectively a thing of the past as recent laws have been enacted which bar individuals from making border runs more than 2 times per calendar year. Although this new rule is unlikely to impact genuine tourists in Thailand, those who have used ostensibly temporary visas and visa exemption stamps to live in Thailand are likely to find maintaining their status in this way to be very difficult in the future. This news comes at the same time as a number of foreign owned or managed businesses in Thailand are reporting significant increases in immigration inspections as well as well known hostels are being raided by those seeking not only criminals, but over-stayers in particular. How this will all play out in 2017 remains to be seen, but one thing is certain: staying long term in Thailand is becoming increasingly difficult, expensive, and time consuming.

Meanwhile, as Thai Immigration cracks down, it appears that the Department of Homeland Security’s United States Citizenship and Immigration Service (USCIS) has made new regulations regarding the forms which must be submitted in connection with petitions for various immigration benefits. Forms such as the I-130 (associated with spousal immigration petitions for visas such as the CR-1 or the IR-1) have been upgraded and apparently the USCIS will no longer accept forms of an older pedigree. The same is apparently true with respect to the I-129f (the form associated with the K-1 visa used to bring fiancees of American Citizens to the USA) as that form has been updated.

Concurrently, it appears that there has been an across-the-board increase in the fees associated with the filing of certain immigration petitions. It is advised that those interested in this matter either speak with a qualified professional or conduct their own research to ascertain the current costs and fees associated with a visa to the USA.

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10th November 2016

In light of recent events in the United States election and the campaign promises made by the now President-elect, it seems appropriate to assume that Immigration matters will likely come to the forefront of American political discussion. For this reason, this blogger finds it relevant to provide an overview of the Immigration apparatus and how the components function.

In order to understand U.S. Immigration matters and the enforcement of U.S. Immigration law one must first understand the Department of Homeland Security. This Department oversees most of the Immigration matters arising in the United States (The Department of State deals with matters pertaining to US visas issued abroad, for more information on the role DOS plays in the immigration process please check out the many pages on this blog dedicated to Consular Processing information).

There are three agencies under the jurisdiction of DHS which deal with different aspects of Immigration law and policy. The first agency that many intending immigrant will no doubt have had dealings with is the United States Citizenship and Immigration Service or USCIS. This agency is tasked with adjudicating petitions for immigration benefits such as immigrant visas, work visas, and certain temporary stay visas. Furthermore, the USCIS also adjudicates I-601 waivers of inadmissibility as well as I-212 waivers for those who have previously been subjected to expedited removal. Those wishing to travel from abroad to the United States on some sort of immigrant or work authorized visa will likely have contact with USCIS.

Another component of DHS which deals with Immigration is the United States Immigration and Customs Enforcement Service or USICE. USICE is often the agency tasked with ascertaining the legal status of foreign nationals physically present in the USA and if found to be present in the USA illegally USICE agents are tasked with apprehending such individuals and placing them in deportation proceedings.

Finally, there is the United States Customs and Border Protection Service or USCBP. In the US visa process, USCBP is arguably the most overlooked yet one of the most significant agencies an intending immigrant will deal with. Unbeknownst to most, notwithstanding the issuance of a valid visa, USCBP has the authority to turn away any alien attempting to enter the USA. In actual practice, an alien with a validly issued visa is unlikely to be refused admission at a port of entry, but it can happen. In most cases such refusal is due to a belief on the part of a USCBP officer that an alien attempting to enter the USA on a non-immigrant visa in fact has immigrant intent. This happens frequently to tourist visa holders who are attempting to conduct a so-called visa run in order to remain in the USA. In those cases involving immigrant spouses of US citizens holding visas such as the K-3, the CR-1, or the IR-1 refusal to admit the alien spouse is quite rare. The same can be said for foreign fiancees of US Citizens holding a K-1 visa, but the fact that USCBP has plenary power to turn away any alien seeking admission should not be forgotten.

Meanwhile in an interesting article in The Intercept, it was noted that certain documents have come to light which apparently show that although USCBP has traditionally recognized law enforcement functions (especially with respect to Customs matters) they also work with the FBI in matters not routinely thought of when pondering USCBP’s role. To quote directly from the aforementioned article:

“It is no surprise that law enforcement closely monitors border crossings for criminals or terror suspects. The initiatives described in these documents, however, are explicitly about gathering intelligence, not enforcing the law. A person doesn’t have to be connected to an active investigation or criminal suspect in order to be flagged; the FBI might want them for their potential to provide general intelligence on a given country, region, or group. The goal, according to an FBI presentation on an initiative at Boston’s Logan Airport, is “looking for ‘good guys’ not ‘bad guys.’”

Although immigration matters are often viewed as a “boring” aspect of the United States bureaucracy it should be noted that agents of the Department of Homeland Security play a significant role in maintaining the security of the USA and assist even in the gathering of intelligence.

Although the ultimate policies of the new administration regarding immigration matters remain to be seen it seems logical to infer that should the administration wish to make the immigration process more difficult for foreign nationals, then the sophisticated mechanisms mentioned above would likely have the capacity to make certain that such a course of events actually transpires.

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27th January 2014

It recently came to this blogger’s attention that Vietnam has legalized same sex wedding ceremonies performed in that Southeast Asian nation. Prior to this announcement it was illegal for same sex couples to have a marriage ceremony performed in Vietnam and also illegal for same sex couples to cohabit without fear of government reprisal. It should be noted that these recent measures only allow same sex couples to have a marriage ceremony, notwithstanding the fact that such ceremonies will have no legal recognition in Vietnam (or elsewhere). However, many LGBT rights activists believe that this is a significant step towards eventual marriage equality in Vietnam.

Meanwhile, in the Kingdom of Thailand the struggle still continues to see the full marriage equality. Unlike Vietnam, Thailand has allowed same sex marriage ceremonies within their jurisdiction for some time. It should also be noted that Thailand is one of the most tolerant nations in Southeast Asia when it comes to LGBT issues. However, the law in Thailand still stipulates that a legally recognized marriage is a union between one man and one woman. There are many activists in the Kingdom hoping to change these rules in order to allow same sex couples the right to get married. With recent political turmoil in the Kingdom and uncertainty surrounding upcoming elections it remains to be seen whether any change to the current law will speedily occur, but some believe that the tolerant attitude in Thailand will lead to changes in the law especially in light of the fact that recent proposals in the Thai parliament would, if adopted, allow same sex couples to legalize their marriages.

The issue of same sex marriage legalization is of concern to many same-sex bi-national couples since the Supreme Court’s 2013 decision granting federal recognition of same sex unions. One result of this decision was that same sex couples and spouses are now eligible to receive United States visa benefits in the same manner as different sex couples. Therefore, visas such as the CR-1 visa and IR-1 visa are now available to same sex couples who are already married. Although this may not be a highly sought after category in Southeast Asia at this time as no jurisdiction in the region currently recognizes same sex marriage, it could be of substantial importance in coming years as laws may be amended to equalize marriage laws for the LGBT community. Meanwhile, officials at the United States Citizenship and Immigration Service (USCIS) as well as the Department of State have noted that same sex couples, where one of the partners is American, who maintain a bona fide intention to marry in the USA may be eligible for the K-1 visa (more commonly referred to as a fiance visa). This type of visa allows the foreign fiance of an American citizen to travel to the United States for 90 days for the express purpose of getting married and filing for adjustment of status to Lawful Permanent Residence.

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21st October 2013

Updated USCIS Processing Times

Posted by : admin

The administration of this blog routinely posts the updated processing time estimates for the Service Centers of the United States Citizenship and Immigration Service (USCIS). The following was quoted directly from the official website of USCIS:

Field Office Processing Dates for California Service Center as of: August 31, 2013
Form Title Classification or Basis for Filing: Processing Timeframe:
I-102 Application for Replacement/Initial Nonimmigrant Arrival/Departure Record Initial issuance or replacement of a Form I-94 2.5 Months
I-129 Petition for A Nonimmigrant Worker Blanket L 2 Months
I-129 Petition for A Nonimmigrant Worker E – Treaty traders and investors 2 Months
I-129 Petition for A Nonimmigrant Worker H-1B – Specialty occupation – Visa to be issued abroad 2 Months
I-129 Petition for A Nonimmigrant Worker H-1B – Specialty occupation – Change of status in the U.S. 2 Months
I-129 Petition for A Nonimmigrant Worker H-1B – Specialty occupation – Extension of stay in the U.S. 2 Months
I-129 Petition for A Nonimmigrant Worker H-2A – Temporary workers 1 Months
I-129 Petition for A Nonimmigrant Worker H-2B – Other temporary workers 1 Months
I-129 Petition for A Nonimmigrant Worker H-3 – Temporary trainees 2 Months
I-129 Petition for A Nonimmigrant Worker L – Intracompany transfers 1 Months
I-129 Petition for A Nonimmigrant Worker O – Extraordinary ability 2 Weeks
I-129 Petition for A Nonimmigrant Worker P – Athletes, artists, and entertainers 2 Weeks
I-129 Petition for A Nonimmigrant Worker Q – Cultural exchange visitors and exchange visitors participating in the Irish Peace process 2 Months
I-129 Petition for A Nonimmigrant Worker R – Religious occupation 5 Months
I-129 Petition for A Nonimmigrant Worker TN – North American Free Trade Agreement (NAFTA) professional 2 Months
I-129F Petition for Alien Fiance(e) K-1/K-2 – Not yet married – fiance and/or dependent child 5 Months
I-129F Petition for Alien Fiance(e) K-3/K-4 – Already married – spouse and/or dependent child 5 Months
I-130 Petition for Alien Relative Permanent resident filling for a spouse or child under 21 5 Months
I-130 Petition for Alien Relative U.S. citizen filing for an unmarried son or daughter over 21 March 11, 2010
I-130 Petition for Alien Relative Permanent resident filling for an unmarried son or daughter over 21 November 3, 2010
I-130 Petition for Alien Relative U.S. citizen filing for a married son or daughter over 21 June 21, 2010
I-130 Petition for Alien Relative U.S. citizen filing for a brother or sister February 11, 2010
I-131 Application for Travel Document All other applicants for advance parole 3 Months
I-360 Petition for Amerasian, Widow(er), or Special Immigrant All other special immigrants 5 Months
I-360 Petition for Amerasian, Widow(er), or Special Immigrant Religious workers 5 Months
I-485 Application to Register Permanent Residence or to Adjust Status Employment-based adjustment applications May 30, 2012
I-526 Immigrant Petition By Alien Entrepreneur For use by an entrepreneur who wishes to immigrate to the United States March 16, 2012
I-539 Application to Extend/Change Nonimmigrant Status Change status to the F or M academic or vocational student categories 2.5 Months
I-539 Application to Extend/Change Nonimmigrant Status Change of status to H or L dependents 2.5 Months
I-539 Application to Extend/Change Nonimmigrant Status Change Status to the J exchange visitor category 2.5 Months
I-539 Application to Extend/Change Nonimmigrant Status All other change of status applications 2.5 Months
I-539 Application to Extend/Change Nonimmigrant Status Extension of Stay for F or M academic or vocational students 2.5 Months
I-539 Application to Extend/Change Nonimmigrant Status Extension of stay for H and L dependents 2.5 Months
I-539 Application to Extend/Change Nonimmigrant Status Extension of Stay for J exchange visitors 2.5 Months
I-539 Application to Extend/Change Nonimmigrant Status All other extension applications 2.5 Months
I-601 Application for Waiver of Grounds of Inadmissibility Waiver of Grounds of Inadmissibility 4 Months
I-612 Application for Waiver of the Foreign Residence Requirement Application for a waiver of the 2-year foreign residence requirement based on exceptional hardship or persecution 4 Months
I-751 Petition to Remove the Conditions on Residence Removal of lawful permanent resident conditions (spouses of U.S. citizens and lawful permanent residents 6 Months
I-765 Application for Employment Authorization Based on a request by a qualified F-1 academic student. [(c)(3)] 3 Months
I-765 Application for Employment Authorization Based on a pending asylum application [(c)(8)] July 2, 2013
I-765 Application for Employment Authorization Based on a pending I-485 adjustment application [(c)(9)] 3 Months
I-765 Application for Employment Authorization Based on TPS for Honduras/Nicaragua [(c)(19), (a)(12)] 3 Months
I-765 Application for Employment Authorization Based on an approved, concurrently filed, I-821D, Consideration of Deferred Action for Childhood Arrivals (c)(33). 90 Days
I-765 Application for Employment Authorization All other applications for employment authorization 3 Months
I-817 Application for Family Unity Benefits Voluntary departure under the family unity program May 25, 2011
I-821 Application for Temporary Protected Status Honduras and Nicaragua extension 3 Months
I-821 Application for Temporary Protected Status Honduras and Nicaragua initial or late filing 3 Months
I-821D Consideration of Deferred Action for Childhood Arrivals Request for Deferred Action 6 Months
I-824 Application for Action on an Approved Application or Petition To request further action on an approved application or petition 3 Months
I-829 Petition by Entrepreneur to Remove Conditions Removal of lawful permanent resident conditions (immigrant investors) May 16, 2012
I-829 Petition by Entrepreneur to Remove Conditions Removal of lawful permanent resident conditions (immigrant investors) based on PL107-273 September 12, 1997
Field Office Processing Dates for Nebraska Service Center as of: August 31, 2013
Form Title Classification or Basis for Filing: Processing Timeframe:
I-102 Application for Replacement/Initial Nonimmigrant Arrival/Departure Record Initial issuance or replacement of a Form I-94 June 16, 2013
I-131 Application for Travel Document Refugee or asylee applying for a refugee travel document 3 Months
I-131 Application for Travel Document Permanent resident applying for a re-entry permit 3 Months
I-131 Application for Travel Document Haitian Refugee Immigrant Fairness Act (HRIFA) dependent applying for advance parole 3 Months
I-131 Application for Travel Document Haitian Refugee Immigrant Fairness Act (HRIFA) principal applying for advance parole 3 Months
I-131 Application for Travel Document All other applicants for advance parole 3 Months
I-140 Immigrant Petition for Alien Worker Extraordinary ability March 2, 2013
I-140 Immigrant Petition for Alien Worker Outstanding professor or researcher 4 Months
I-140 Immigrant Petition for Alien Worker Multinational executive or manager April 2, 2013
I-140 Immigrant Petition for Alien Worker Advanced degree or exceptional ability 4 Months
I-140 Immigrant Petition for Alien Worker Skilled worker or professional 4 Months
I-140 Immigrant Petition for Alien Worker Unskilled worker 4 Months
I-140 Immigrant Petition for Alien Worker Advanced degree or exceptional ability requesting a National Interest Waiver 4 Months
I-140 Immigrant Petition for Alien Worker Schedule A Nurses 4 Months
I-360 Petition for Amerasian, Widow(er), or Special Immigrant All other special immigrants 5 Months
I-485 Application to Register Permanent Residence or to Adjust Status Employment-based adjustment applications 4 Months
I-485 Application to Register Permanent Residence or to Adjust Status Under the Haitian Refugee Immigrant Fairness Act (HRIFA) 4 Months
I-485 Application to Register Permanent Residence or to Adjust Status Under the Indochinese Adjustment Act 4 Months
I-485 Application to Register Permanent Residence or to Adjust Status Under the Nicaraguan and Central American Relief Act (NACARA) 4 Months
I-485 Application to Register Permanent Residence or to Adjust Status Based on grant of asylum more than 1 year ago 4 Months
I-485 Application to Register Permanent Residence or to Adjust Status Based on refugee admission more than 1 year ago 4 Months
I-601 Application for Waiver of Grounds of Inadmissibility Waiver of Grounds of Inadmissibility April 2, 2013
I-730 Refugee/Asylee Relative Petition Petition for accompanying family members of a refugee or an asylee 5 Months
I-765 Application for Employment Authorization Based on an approved asylum application [(a)(5)] 3 Months
I-765 Application for Employment Authorization Based on a request by a qualified F-1 academic student. [(c)(3)] 3 Months
I-765 Application for Employment Authorization Based on a pending asylum application [(c)(8)] 3 Weeks
I-765 Application for Employment Authorization Based on a pending I-485 adjustment application [(c)(9)] 3 Months
I-765 Application for Employment Authorization Based on an approved, concurrently filed, I-821D, Consideration of Deferred Action for Childhood Arrivals (c)(33). 90 Days
I-765 Application for Employment Authorization All other applications for employment authorization 3 Months
I-817 Application for Family Unity Benefits Voluntary departure under the family unity program May 30, 2011
I-821D Consideration of Deferred Action for Childhood Arrivals Request for Deferred Action 6 Months
I-824 Application for Action on an Approved Application or Petition To request further action on an approved application or petition April 15, 2013
N-565 Application for Replacement Naturalization/Citizenship Document U.S. citizen applying for a replacement of naturalization or citizenship certificate 6 Months
Field Office Processing Dates for Texas Service Center as of: August 31, 2013
Form Title Classification or Basis for Filing: Processing Timeframe:
I-102 Application for Replacement/Initial Nonimmigrant Arrival/Departure Record Initial issuance or replacement of a Form I-94 2.5 Months
I-129F Petition for Alien Fiance(e) K-1/K-2 – Not yet married – fiance and/or dependent child 5 Months
I-129F Petition for Alien Fiance(e) K-3/K-4 – Already married – spouse and/or dependent child 5 Months
I-131 Application for Travel Document All other applicants for advance parole 3 Months
I-140 Immigrant Petition for Alien Worker Extraordinary ability 4 Months
I-140 Immigrant Petition for Alien Worker Outstanding professor or researcher 4 Months
I-140 Immigrant Petition for Alien Worker Multinational executive or manager 4 Months
I-140 Immigrant Petition for Alien Worker Advanced degree or exceptional ability 4 Months
I-140 Immigrant Petition for Alien Worker Skilled worker or professional 4 Months
I-140 Immigrant Petition for Alien Worker Unskilled worker 4 Months
I-140 Immigrant Petition for Alien Worker Advanced degree or exceptional ability requesting a National Interest Waiver 4 Months
I-140 Immigrant Petition for Alien Worker Schedule A Nurses 4 Months
I-360 Petition for Amerasian, Widow(er), or Special Immigrant All other special immigrants June 2, 2010
I-485 Application to Register Permanent Residence or to Adjust Status Employment-based adjustment applications 4 Months
I-485 Application to Register Permanent Residence or to Adjust Status Based on grant of asylum more than 1 year ago May 2, 2013
I-601 Application for Waiver of Grounds of Inadmissibility Waiver of Grounds of Inadmissibility 4 Months
I-730 Refugee/Asylee Relative Petition Petition for accompanying family members of a refugee or an asylee March 16, 2013
I-765 Application for Employment Authorization Based on a request by a qualified F-1 academic student. [(c)(3)] 3 Months
I-765 Application for Employment Authorization Based on a pending asylum application [(c)(8)] 3 Weeks
I-765 Application for Employment Authorization Based on a pending I-485 adjustment application [(c)(9)] 3 Months
I-765 Application for Employment Authorization Based on an approved, concurrently filed, I-821D, Consideration of Deferred Action for Childhood Arrivals (c)(33). 90 Days
I-765 Application for Employment Authorization All other applications for employment authorization 3 Months
I-817 Application for Family Unity Benefits Voluntary departure under the family unity program 6 Months
I-821D Consideration of Deferred Action for Childhood Arrivals Request for Deferred Action 6 Months
I-824 Application for Action on an Approved Application or Petition To request further action on an approved application or petition March 17, 2013
N-565 Application for Replacement Naturalization/Citizenship Document U.S. citizen applying for a replacement of naturalization or citizenship certificate 6 Months
Field Office Processing Dates for Vermont Service Center as of: August 31, 2013
Form Title Classification or Basis for Filing: Processing Timeframe:
I-102 Application for Replacement/Initial Nonimmigrant Arrival/Departure Record Initial issuance or replacement of a Form I-94 2.5 Months
I-129 Petition for A Nonimmigrant Worker Blanket L 2 Months
I-129 Petition for A Nonimmigrant Worker H-1B – Specialty occupation – Visa to be issued abroad April 17, 2013
I-129 Petition for A Nonimmigrant Worker H-1B – Specialty occupation – Change of status in the U.S. April 17, 2013
I-129 Petition for A Nonimmigrant Worker H-1B – Specialty occupation – Extension of stay in the U.S. April 10, 2013
I-129 Petition for A Nonimmigrant Worker H-2B – Other temporary workers 1 Months
I-129 Petition for A Nonimmigrant Worker H-3 – Temporary trainees 2 Months
I-129 Petition for A Nonimmigrant Worker L – Intracompany transfers July 3, 2013
I-129 Petition for A Nonimmigrant Worker O – Extraordinary ability 2 Weeks
I-129 Petition for A Nonimmigrant Worker P – Athletes, artists, and entertainers 2 Weeks
I-129 Petition for A Nonimmigrant Worker Q – Cultural exchange visitors and exchange visitors participating in the Irish Peace process 2 Months
I-129 Petition for A Nonimmigrant Worker R – Religious occupation 5 Months
I-129 Petition for A Nonimmigrant Worker TN – North American Free Trade Agreement (NAFTA) professional 2 Months
I-129F Petition for Alien Fiance(e) K-1/K-2 – Not yet married – fiance and/or dependent child 5 Months
I-130 Petition for Alien Relative Permanent resident filling for a spouse or child under 21 March 27, 2013
I-130 Petition for Alien Relative U.S. citizen filing for a spouse, parent, or child under 21 October 22, 2012
I-130 Petition for Alien Relative U.S. citizen filing for an unmarried son or daughter over 21 April 30, 2012
I-130 Petition for Alien Relative Permanent resident filling for an unmarried son or daughter over 21 April 30, 2012
I-130 Petition for Alien Relative U.S. citizen filing for a married son or daughter over 21 April 9, 2012
I-130 Petition for Alien Relative U.S. citizen filing for a brother or sister March 27, 2011
I-131 Application for Travel Document All other applicants for advance parole 3 Months
I-360 Petition for Amerasian, Widow(er), or Special Immigrant All other special immigrants February 20, 2013
I-360 Petition for Amerasian, Widow(er), or Special Immigrant Violence Against Women Act (VAWA) October 8, 2012
I-485 Application to Register Permanent Residence or to Adjust Status Employment-based adjustment applications November 19, 2012
I-539 Application to Extend/Change Nonimmigrant Status Change status to the F or M academic or vocational student categories April 17, 2013
I-539 Application to Extend/Change Nonimmigrant Status Change of status to H or L dependents April 17, 2013
I-539 Application to Extend/Change Nonimmigrant Status Change Status to the J exchange visitor category April 17, 2013
I-539 Application to Extend/Change Nonimmigrant Status All other change of status applications April 17, 2013
I-539 Application to Extend/Change Nonimmigrant Status Extension of Stay for F or M academic or vocational students April 17, 2013
I-539 Application to Extend/Change Nonimmigrant Status Extension of stay for H and L dependents April 17, 2013
I-539 Application to Extend/Change Nonimmigrant Status Extension of Stay for J exchange visitors April 17, 2013
I-539 Application to Extend/Change Nonimmigrant Status All other extension applications April 17, 2013
I-751 Petition to Remove the Conditions on Residence Removal of lawful permanent resident conditions (spouses of U.S. citizens and lawful permanent residents 6 Months
I-765 Application for Employment Authorization Based on a request by a qualified F-1 academic student. [(c)(3)] 3 Months
I-765 Application for Employment Authorization Based on a pending asylum application [(c)(8)] 3 Weeks
I-765 Application for Employment Authorization Based on a pending I-485 adjustment application [(c)(9)] 3 Months
I-765 Application for Employment Authorization Based on TPS for El Salvador [(c)(19)(a)(12)] April 24, 2013
I-765 Application for Employment Authorization Based on TPS for Honduras/Nicaragua [(c)(19), (a)(12)] April 24, 2013
I-765 Application for Employment Authorization Based on an approved, concurrently filed, I-821D, Consideration of Deferred Action for Childhood Arrivals (c)(33). 90 Days
I-765 Application for Employment Authorization All other applications for employment authorization 3 Months
I-817 Application for Family Unity Benefits Voluntary departure under the family unity program 6 Months
I-821 Application for Temporary Protected Status El Salvador extension April 24, 2013
I-821 Application for Temporary Protected Status El Salvador initial or late filing April 24, 2013
I-821 Application for Temporary Protected Status Honduras and Nicaragua extension April 24, 2013
I-821 Application for Temporary Protected Status Honduras and Nicaragua initial or late filing April 24, 2013
I-821D Consideration of Deferred Action for Childhood Arrivals Request for Deferred Action February 28, 2013
I-824 Application for Action on an Approved Application or Petition To request further action on an approved application or petition 3 Months
I-90 Application to Replace Permanent Resident Card Initial issuance or replacement 3.5 Months
I-90A Application to Replace Permanent Resident Card Initial issuance or replacement for Special Agricultral Workers (SAW) 3.5 Months
I-914 Application for T Non-immigrant Status Provide temporary immigration benefits to an alien who is a victim of trafficking in persons, and immediate family 4 Months
I-918 Petition for U Non-immigrant Status Provide temporary immigration benefits to an alien who is a victim of qualifying criminal activity, and their qualifying family June 25, 2012

It should be noted that these processing time estimates do not reflect the time it takes to obtain a US visa as the US visa application process can be time consuming even after an initial immigration petition receives approval since processing at the National Visa Center and/or a US Consulate or US Embassy abroad may also be required.

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13th October 2013

A frequently asked question from those wishing to sponsor a foreign fiance or spouse for a US Fiance Visa or US Marriage Visa is: do I make enough income to act as a sponsor for my loved one? The answer to this question involves the affidavit of support which is a primary component of the visa application process. When a fiance or spouse visa application is adjudicated by a Consular Officer at a US Embassy or US Consulate overseas part of the application includes either and I-134 or I-864 affidavit of support. This document allows the adjudicating Consular officer to make a determination as to whether or not the US Citizen spouse or fiance has the income necessary to support their fiance or spouse in the United States. This affidavit also acts as a sort of third party beneficiary contract between the American spouse and the United States government in order to make certain that the American spouse pays the US government for any means tested benefits that the foreign spouse may acquire while in the USA.

When determining whether or not an American spouse or fiance can support a foreign spouse or fiance the adjudicating officer will first look to the American’s adjusted annual income on his or her income tax return. In order to meet the minimum eligibility requirements the American spouse or fiance must earn 125% of the federal poverty guidelines for a family of their size. The current federal poverty guidelines for the 48 contiguous States as well as Alaska and Hawaii can be found below (as quoted from the official website of Housing and Human Services):

2013 POVERTY GUIDELINES FOR THE 48 CONTIGUOUS STATES
AND THE DISTRICT OF COLUMBIA
Persons in family/household Poverty guideline
For families/households with more than 8 persons, add $4,020 for each additional person.
1 $11,490
2 15,510
3 19,530
4 23,550
5 27,570
6 31,590
7 35,610
8 39,630

 

2013 POVERTY GUIDELINES FOR ALASKA
Persons in family/household Poverty guideline
For families/households with more than 8 persons, add $5,030 for each additional person.
1 $14,350
2 19,380
3 24,410
4 29,440
5 34,470
6 39,500
7 44,530
8 49,560

 

2013 POVERTY GUIDELINES FOR HAWAII
Persons in family/household Poverty guideline
For families/households with more than 8 persons, add $4,620 for each additional person.
1 $13,230
2 17,850
3 22,470
4 27,090
5 31,710
6 36,330
7 40,950
8 45,570

SOURCE: Federal Register, Vol. 78, No. 16, January 24, 2013, pp. 5182-5183

Those wishing to ascertain whether they are eligible to sponsor their foreign fiance or spouse should use the above figures to determine 125% of the poverty guidelines for a family of their size (including the foreign family member(s)). It should be noted that active duty members of the United States Armed Forces must only meet 100% of the federal poverty guidelines in order to be eligible to sponsor a foreign fiance or spouse. Those unable to meet the 125% income level noted above may be able to use assets to offset the difference between their level of income and the 125% requirement. For affidavit of support purposes, a prospective sponsor of a Thai fiancee or wife can make up the difference in income between what is actually earned and what is legally required by providing evidence of assets which equal 5 times the difference between what a prospective sponsor earns and the level required by law. Thus, if a prospective sponsor fall short of the 125% level by 5,000 USD, then the prospective sponsor can show proof of assets in the amount of 25,000 USD in order to overcome the disparity.

It may also be possible to use the income and assets of a joint sponsor if the person petitioning for the foreign national’s visa is unable to overcome the income and asset requirements. It should be noted that only the I-864 affidavit of support (that used in cases involving the application for a CR-1 visa or an IR-1 visa) may utilize a joint sponsor. Those seeking a K-1 visa are not eligible to use a joint sponsor, therefore, only the American Citizen fiance’s income and assets will be adjudicated during the K1 visa application process. In the past, Consular Officers at the US Embassy in Bangkok were known to accept joint sponsors in K-1 visa application adjudications. However, as of the time of this writing that practice has ceased.

Those interested in learning more on these topics are encouraged to click on the following link: Affidavit of Support.

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