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Integrity Legal

Posts Tagged ‘K-1 Visa’

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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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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18th March 2021

The overall Immigration system in both the United States and Thailand have been in a state of flux for a number of months. The transition in Administrations in the United States has had a number of effects upon the Immigration apparatus as a whole, most recently the Secretary of Homeland Security announced changes with respect to the public charge rule. To quote directly from the Department of Homeland Security website:

Today, DHS Secretary Alejandro N. Mayorkas announced that the government will no longer defend the 2019 public charge rule as doing so is neither in the public interest nor an efficient use of limited government resources.

“The 2019 public charge rule was not in keeping with our nation’s values. It penalized those who access health benefits and other government services available to them,” said Secretary of Homeland Security Alejandro N. Mayorkas. “Consistent with the President’s vision, we will continue to implement reforms that improve our legal immigration system.”

President Biden’s Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans called for an immediate review of agency actions on public charge inadmissibility and deportability. DHS’s review, in consultation with the Departments of Justice and State and the federal benefits-granting agencies, is ongoing.

Clearly, this represents a sea change with respect to immigration policy on issues associated with acting as a sponsor for an intending immigrant or in cases where adjustment of status is involved. This is likely to have a tremendous impact upon processing of cases such as the K1 Visa, the K3 Visa, the CR1 Visa, and the IR1 Visa. In K-1 visa cases, those acting as sponsors must file an I-134 affidavit of support while the I-864 applies to immigrant visas. Hopefully, the recently announced policy change will benefit those seeking these types of visas.

Meanwhile, it seems officials in Thailand are going ahead with easing of quarantine measures. The process of lifting the quarantine is slated to occur in phases, with phase 1 set to commence in April. There are to be 4 phases of the quarantine easing with phase 2 (so-called “area quarantine“) set to commence at the beginning of the summer and apparently the Kingdom will open much more in October. Much of the reopening appears contingent upon the broad adoption of so-called vaccine passports, with certificates of entry to be phased out in favor of that documentation. Notwithstanding these announcements, it now appears that quarantine will continue albeit on a truncated basis, with those who can prove prior vaccination and a clear COVID test able to enjoy 7 days of quarantine (as opposed to 14 days) beginning in April. Those unvaccinated with a clear COVID test will only be compelled to quarantine for 10 days.

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5th November 2020

For those unaware, our firm maintains a Youtube channel in order to provide daily updates regarding Thai, American, and international immigration matters as well as information of a general nature regarding Thai legal issues and legal news for expats.

In the aftermath of the 2020 election in the USA, there has been a question posed: how will the outcome impact American Immigration? As noted in a video on our aforementioned YouTube Channel, it appears that the ultimate result of the election is unlikely to have a dramatic impact upon American visa processing, at least in the near term. As noted in prior postings to this blog, the US government’s response to COVID-19 has resulted in a slowing of case processing at the United States Citizenship and Immigration Service (USCIS), the National Visa Center (NVC), and US Embassies and Consulates abroad (including the American Embassy in Bangkok). It seems unlikely that even if the government’s administration changes due to the election that we will see faster processing times for immigration cases in the near term. That stated, the situation remains fluid and unforeseen developments could see cases such as K-1 visa applications move with more speed compared to the past months.

The Thai Immigration situation remains fluid as well. Recently, the government terminated the Thai visa amnesty. Concurrently, it appears that some tourists are beginning to return to Thailand using the special tourist visa (STV) scheme. However, the tourist numbers are small compared to numbers in the years leading up to 2020. Thai Immigration and officials at the Ministry of Foreign Affairs seem increasingly keen to allow the return of expats from abroad. The O-A retirement visa category has been prioritized for issuance of certificates of entry (COE) for prospective travelers to Thailand. This is happening as foreign nationals traveling to Thailand in business visa status appear to be on the rise. Those who have a Thai spouse or other family in Thailand can also avail themselves of an O visa in order to enter the Kingdom.

There has been some conjecture that the Thai government may promulgate rules allowing property purchasers to travel to Thailand. This proposal seems to be geared toward increasing the demand for Thai condos. However, these proposals have yet to be taken up by relevant authorities and therefore it remains to be seen whether Thai property ownership will be deemed a sufficient reason for sponsoring a visa and/or certificate of entry for the Kingdom of Thailand.

The entire process for traveling to Thailand remains cumbersome compared to routine protocols. As noted above, a certificate of entry, in addition to a Thai visa, is necessary for one to travel to Thailand. Prospective entrants are also required to obtain fit to fly documentation and remain in alternative state quarantine (ASQ) for 14 days (although there is speculation this may be reduced to 10 days) before being permitted unfettered access to the Kingdom.

 

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12th September 2020

The overall immigration and visa environment in both the USA and Thailand are in an extreme state of flux. In recent months the response by the US Embassy in Bangkok to the COVID-19 pandemic has been to shutdown the Immigrant and Non-Immigrant Visa Units and preclude interviews. However, an announcement in recent weeks suggests that this shutdown is coming to an end. Quoting directly from the US Travel Docs website:

Beginning October 1, 2020, U.S. Embassy Bangkok and U.S. Consulate General Chiang Mai will resume routine nonimmigrant visa services for all visa categories.  The number of visa interviews per day will be limited to ensure social distancing. Starting from September 9, 2020, you can renew your visa by mail, provided you meet all the qualifications listed on https://www.ustraveldocs.com/th/th-niv-visarenew.asp.  Please read all the information before submitting your application by mail. Applicants for H1B, H2B, L1, and certain J categories and their dependents covered by Presidential Proclamation 10052 should request an appointment only if you have reason to believe you may qualify for one of the exceptions listed in the Proclamation here.  For more information on exceptions, click here. U.S. Embassy Bangkok has also resumed processing most immigrant visa categories and is currently addressing its backlog of cases, namely those applicants whose interview appointment was canceled because of the COVID-19 pandemic.  The Immigrant Visa unit will be in direct contact with applicants currently eligible to reschedule their interview appointment.

Although the actual easing of current restrictions remains to be seen, many waiting for a K-3, CR-1, IR-1, or K-1 visa interview are anxious to see the beginning of October and, along with it, the resumption of visa processing.

Meanwhile, the current posture of the Thai Immigration system remains relatively inert compared to normal circumstances as most all travel to Thailand is heavily restricted. That stated, there are some non-immigrant visa categories which are approved for usage to enter Thailand. Most notable among the categories are the Thai Business Visa (with work permit or work authorization [either WP3 or WP10 depending upon circumstances) and the Thai O visa for those foreign nationals who have a Thai spouse, children or parents. Presently, those with a Thai retirement visa will not be able to gain access to Thailand utilizing that travel document as their sole and exclusive means of lawful admission. Based upon some accounts, it appears likely that this restriction may remain until the beginning of 2021.

Thai officials have been attempting to balance health and safety concerns against the strong desire to readmit tourists to Thailand. A multitude of initiatives have been discussed in recent weeks including further discussion of a “travel bubble” initiative as well as discussion of the “safe and sealed” program. More recently, the “Phuket Model” is being discussed in earnest as a means of admitting foreign tourists while simultaneously taking necessary precautions to assuage those concerned about public health. It seems the roll out of the “Phuket Model” is not a foregone conclusion and it now seems likely that, once implemented, it will be a plan pertaining to all of Thailand rather than specifically targeting Phuket. However, implementation remains to be seen and therefore comment as to the details associated therewith would be an exercise in conjecture at this time. Concurrently, there also appear to be discussions regarding “Green Lanes” to allow business travelers access to Thailand.

Within Thailand, issues surrounding Thai immigration are becoming increasingly urgent as the Thai visa amnesty (sometimes referred to as the automatic Thai visa extension) is coming to an end on September 26th. Thai Immigration officials have made a number of statements regarding the end of the amnesty and noted that waiting until too close to the deadline may prove problematic for prospective visa applicants. Some officials have even gone so far as to hint at possible future announcements regarding Thai immigration rules in coming days. At the same time, it appears an ad hoc system is being put in place to allow temporary extensions for those who can produce an Embassy letter requesting such accommodation. That stated, statements from both he American and British Missions to Thailand would suggest that compelling reasons must be shown in order to ultimately have one’s Thai visa status maintained on a temporary basis pursuant to this prospective scheme. Those wishing to maintain long term lawful status past the end of the amnesty are well advised to either obtain an extension of status or a conversion into longer term immigration status in Thailand BEFORE the September 26 deadline.

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2nd May 2020

The past 6 weeks have been very eventful in terms of the response to the COVID-19 (or Coronavirus) lock down in Thailand. This crisis has also had a significant impact upon the American visa process. By way of an update, the Thai government has recently announced an easing of restrictions associated with the lock down of business and social interaction in Thailand. It now appears that as of May 3rd, small eateries, parks, hair salons, stores selling certain retail as well as electronic goods, and pet shops will be allowed to reopen. Thai government officials have announced that further phased reopening measures will be implemented in coming weeks should circumstances permit. Concurrently, it was initially announced that the ban on the sale of alcohol in Thailand would be extended throughout the month of May. There was some speculation that a “grace period” would be permitted on Mat 1st and 2nd to allow the public time to “stock up” on alcohol products in anticipation of further restrictions over the forthcoming month.

Shortly after these predictions and the announcement that the ban on alcohol sales would continue, it was announced that retail alcohol sales could recommence beginning May 3rd. Further, it appears that those eateries which maintain an alcohol license and usually sell alcohol in the course of their day-to-day business will be permitted to sell alcohol on a “take-away” basis. Therefore, for the forthcoming days small restaurants and other venues will be reopened to the public and life in Thailand appears to be normalizing somewhat. Notwithstanding these measures, restrictions on pubs and entertainment establishments remain.

While all of this is unfolding in Thailand, in the USA the US immigration system appears to be preparing for further delays associated with the processing of visa cases. The following announcement from USCIS recently came to this blogger’s attention:

On March 18, U.S. Citizenship and Immigration Services temporarily suspended routine in-person services to help slow the spread of coronavirus (COVID-19). USCIS plans to begin reopening our offices on or after June 4, unless the public closures are extended further.

In prior announcements it had been noted that May 4th would be the presumptive date of reopening. It now appears that there will be at least another month delay for in-person services with USCIS. At the same time, the new Immigration Ban remains in effect although it is unlikely to have any impact upon those seeking a K-3 visa, CR-1 visa, IR-1 visa, or K-1 visa from Thailand as the ban specifically excludes spouse visas and only pertains to immigrant visas. Therefore, as a fiance visa is not, by definition, an immigrant visa, the provisions this new ban do not apply to fiances of American citizens. However, notwithstanding the fact that the immigration ban does no directly impact most family based visas from Thailand it is effectively a moot point for the immediately foreseeable future due to the fact that the Immigrant Visa Unit and the Non-Immigrant Visa Unit at the US Embassy in Bangkok are not currently holding visa interviews nor are the issuance immigrant and non-immigrant visa as they remain closed due to the coronavirus. We, in this office, are currently looking at the USCIS presumed reopening date as the best indication of when it seems prudent to presume that the Embassy will reopen for interviews. That stated, the ultimate date of reopening remains to be seen, but we will try to keep you up to date on this blog.

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22nd April 2020

An Executive Order has been issued by the Trump administration regarding suspension of immigration to the United States for the forthcoming 60 days. However, the order does not appear to apply to those seeking a K-1 visa to bring a foreign fiance to the USA. Concurrently, it also does not appear to apply to American visas for the spouses and children of U.S. Citizens. To quote directly from the relevant sections of the order as posted on the White House website:

NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a) of the Immigration and Nationality Act, 8 U.S.C. 1182(f) and 1185(a), and section 301 of title 3, United States Code, hereby find that the entry into the United States of persons described in section 1 of this proclamation would, except as provided for in section 2 of this proclamation, be detrimental to the interests of the United States, and that their entry should be subject to certain restrictions, limitations, and exceptions.  I therefore hereby proclaim the following:

Section 1.  Suspension and Limitation on Entry.  The entry into the United States of aliens as immigrants is hereby suspended and limited subject to section 2 of this proclamation.

Sec2.  Scope of Suspension and Limitation on Entry.  (a)  The suspension and limitation on entry pursuant to section 1 of this proclamation shall apply only to aliens who:

(i)    are outside the United States on the effective date of this proclamation;

(ii)   do not have an immigrant visa that is valid on the effective date of this proclamation; and

(iii)  do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

(b)  The suspension and limitation on entry pursuant to section 1 of this proclamation shall not apply to:

(i)     any lawful permanent resident of the United States;

(ii)    any alien seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees;  and any spouse and unmarried children under 21 years old of any such alien who are accompanying or following to join the alien;

(iii)   any alien applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program;

(iv)    any alien who is the spouse of a United States citizen;

(v)     any alien who is under 21 years old and is the child of a United States citizen, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;

(vi)    any alien whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee;

(vii)   any member of the United States Armed Forces and any spouse and children of a member of the United States Armed Forces;

(viii)  any alien seeking to enter the United States pursuant to a Special Immigrant Visa in the SI or SQ classification, subject to such conditions as the Secretary of State may impose, and any spouse and children of any such individual; or

(ix)    any alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

Sec3.  Implementation and Enforcement.  (a)  The consular officer shall determine, in his or her discretion, whether an immigrant has established his or her eligibility for an exception in section 2(b) of this proclamation.  The Secretary of State shall implement this proclamation as it applies to visas pursuant to such procedures as the Secretary of State, in consultation with the Secretary of Homeland Security, may establish in the Secretary of State’s discretion.  The Secretary of Homeland Security shall implement this proclamation as it applies to the entry of aliens pursuant to such procedures as the Secretary of Homeland Security, in consultation with the Secretary of State, may establish in the Secretary of Homeland Security’s discretion.

(b)  An alien who circumvents the application of this proclamation through fraud, willful misrepresentation of a material fact, or illegal entry shall be a priority for removal by the Department of Homeland Security.

(c)  Nothing in this proclamation shall be construed to limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, consistent with the laws of the United States.

Sec4.  Termination.  This proclamation shall expire 60 days from its effective date and may be continued as necessary.  Whenever appropriate, but no later than 50 days from the effective date of this proclamation, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend whether I should continue or modify this proclamation.

Sec5.  Effective Date.  This proclamation is effective at 11:59 p.m. eastern daylight time on April 23, 2020.

Sec6.  Additional Measures.  Within 30 days of the effective date of this proclamation, the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, shall review nonimmigrant programs and shall recommend to me other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.

Sec7.  Severability.  It is the policy of the United States to enforce this proclamation to the maximum extent possible to advance the interests of the United States.  Accordingly:

(a)  if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this proclamation and the application of its provisions to any other persons or circumstances shall not be affected thereby; and

(b)  if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid because of the lack of certain procedural requirements, the relevant executive branch officials shall implement those procedural requirements to conform with existing law and with any applicable court orders.

Sec8.  General Provisions.  (a)  Nothing in this proclamation shall be construed to impair or otherwise affect:

(i)   the authority granted by law to an executive department or agency, or the head thereof; or,

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This proclamation shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c)  This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

IN WITNESS WHEREOF, I have hereunto set my hand this
twenty-second day of April, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty-fourth.

DONALD J. TRUMP

 

Clearly, there are many who might see their cases negatively impacted by this order. To preface any further analysis, it should be noted that visa processing has been suspended at the US Embassy in Bangkok, Thailand as well as the US Embassy in Vientiane, Laos and the US Embassy in Phnom Phen, Cambodia due to the COVID-19 outbreak. So regardless of this order, it is not currently possible to obtain a visa from these posts as interviews have been suspended. Bearing the above in mind, the following analysis will demonstrate that this order will NOT have an impact on fiance visa and marriage visa cases for the fiances and/or spouses of American citizens:

The executive order states: “The entry into the United States of aliens as immigrants is hereby suspended and limited subject to section 2 of this proclamation.” The K-1 visa is designed for the fiance of an American citizen to to travel to the United States with the intention of marriage. It grants the bearer 90 days of lawful status in the USA in which to marry their American fiance and file for adjustment of status to lawful permanent residence (aka Green Card status). It is important to note: the K-1 visa is a non-immigrant visa, albeit a dual intent visa. For purposes of processing it is treated as an immigrant visa (for example K-1 cases process through the Immigrant Visa Unit of the American Embassy in Thailand), but pursuant to United States law it is in fact a non-immigrant visa. The above cited executive order only pertains to immigrant visas. Therefore, this order does not have any bearing upon the processing of a K-1 fiance visa case.

What about cases involving the spouse of an American citizen where the spouse would enter the USA and be granted an I-551 stamp thereby granting permanent residence to the foreign spouse upon entry? The above executive order speaks directly to such a situation: “The suspension and limitation on entry pursuant to section 1 of this proclamation shall not apply to:…(iv) any alien who is the spouse of a United States citizen“[Emphasis Added]. Clearly the suspension ordered in Trump’s executive order will exempt spouses of Americans. Therefore, those foreign spouses of American citizens seeking a K-3 visa, CR-1 visa, or IR-1 visa will not be adversely impacted by the provisions of this executive order.

Finally, the following should be noted: “This proclamation shall expire 60 days from its effective date…This proclamation is effective at 11:59 p.m. eastern daylight time on April 23, 2020.” Thus, unless this order is extended it will expire 60 days from now. We will keep readers updated on this blog as the situation progresses.

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19th March 2020

It now appears that all visa services provided to foreign nationals at American Embassies and Consulates abroad have been suspended. In a recent article from Reuters, the following was reported:

The United States is suspending all routine visa services as of Wednesday in most countries worldwide due to the coronavirus outbreak, a spokeswoman for the State Department said, an unprecedented move that will potentially impact hundreds of thousands of people…The State Department spokeswoman said U.S. missions abroad will continue to provide emergency visa services “as resources allow,” and that the services to U.S. citizens will remain available.

Concurrently, the following message was issued by the US Embassy in Thailand:

Information for Immigrant Visa applicants regarding novel coronavirus: As of March 19, 2020, the United States Embassy and Consulate in Thailand are cancelling Immigrant Visa appointments until further notice.  We will resume routine Immigrant Visa services as soon as possible but are unable to provide a specific date at this time.  Once we resume Immigrant Visa operations, we will contact you with a new appointment date. Applicants who had their Immigrant Visa interviews cancelled due to the cessation of operations will be given first priority for rescheduling.

Meanwhile, it now appears that all intending entrants to Thailand will be required to present a medical certificate prior to boarding a plane for Thailand. To quote directly from a recent article in the Bangkok Post:

The Civil Aviation Authority of Thailand now requires all air passengers, Thai and foreign, to show Covid-19-free health certificates and Covid-19 insurance before boarding their flights to Thailand…Airlines must require passengers to present health certificates issued no more than 72 hours before the  flight departs. The certificates must guarantee that the passengers are free of Covid-19, regardles where they board. Airlines must also require that passengers have insurance covering Covid-19 treatment in Thailand, up to at least US$100,000.

We will keep this blog updated as the situation evolves.

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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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