Integrity Legal

Posts Tagged ‘K1 Visa Thailand’

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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1st March 2020

In recent months, both Thai and American immigration systems have been in a state of flux. In some ways the systems have become more streamlined, but in other ways it is becoming more difficult to navigate these systems. The Trump administration has been implementing policies which make immigration to the United States more difficult, as a practical matter. Recently, these prerogatives are starting to have an impact on the ground in Thailand, Laos, Cambodia, and ASEAN as a whole. For example, Myanmar has been placed upon a list of countries banned from traveling to the USA. As a result, Myanmar nationals will not be able to enter the USA, nor will such nationals be granted visas to travel to the USA. If and/or when this ban will be lifted remains to be seen.

Meanwhile, there has been a great deal of discussion surrounding the administration’s implementation of new public charge rules in relations to immigrant visas for the USA. It is clear that there will be a direct impact upon those who are seeking family based immigrant and non-immigrant visas to the United States. For example, those seeking a CR-1 visa or an IR-1 visa will need to deal with the DS-5540 Public Charge Questionnaire when undertaking Consular Processing of their cases at the US Embassy or US Consulate in the jurisdiction in which the applicants reside. Concurrently, it is also clear that those who travel to the United States on a K-1 visa or a K-3 visa will need to deal with the I-944 form as part of the implementation of public charge adjudication during adjustment of status to lawful permanent residence (a.k.a. “Green Card” status”).

A question posed to this blogger recently: When seeking a K visa abroad, will I need to fill out a DS-5540? The answer to this question is not overly clear at first glance. This blogger did some research and came upon the following information in the Foreign Affairs Manual:

9 FAM 302.8-2(B)(4) (U) Applying INA 212(a)(4) to Nonimmigrants

d. (U) Alien Seeking Admission as K Nonimmigrants: K nonimmigrants and their petitioners are not permitted to complete form I-864. You may request a K applicant complete Form DS-5540 to assist in evaluating likelihood of becoming a public charge. Note that K applicants will again be assessed under the public charge ineligibility by USCIS at the time of adjustment of status where the K nonimmigrant seeking adjustment of status will be required to submit a Form I-864.

It is clear that non-immigrant visas are not the same thing as immigrant visas, but K visas are an odd hybrid creature in the immigration world and their posture in these matters can be somewhat fluid. Note that the FAM states the adjudicating officer “may request a K applicant complete Form DS-5540,” but it is not required. Meanwhile, it goes on to note that the applicant is not allowed to file an I-864 and that the issue of public charge we be adjudicated again at the adjustment of status phase of the process. Is this wording designed to allow American Embassies and Consulates leeway to not require K visa applicants to file a DS-5540? Perhaps, the practical implications of the public charge rule at the US Embassy in Thailand, Laos, and Cambodia remain to be personally witnessed by this blogger, but rest assured as soon a there is further clarification we will follow up on those developments.

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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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6th February 2018

It has recently been announced that the Trump administration is creating a new “National Vetting Center”. The following article is intended to shed light on what this institution is designed to do and how it will fit into the overall immigration process.

It should first be noted that the National Vetting Center should not be confused with the preexisting National Visa Center which acts as a sort of clearing house and central repository for documentation pertaining to visa applications through the Department of State. The National Visa Center’s function is to gather relevant documentation and forward cases to the appropriate US Embassy or US Consulate for visa interview scheduling.

The National Vetting Center would seem to have a different mandate, although not altogether different as both institutions deal with matters pertaining to US Immigration. In an effort to provide further insight it is necessary to cite a recent article from the website of USA Today:

The National Vetting Center will be run by the Department of Homeland Security with assistance from the intelligence community and the departments of State, Justice and Defense. Its mission: To “collect, store, share, disseminate, and use” a broad range of information about people who seek to enter the United States, with a goal of identifying people who may be a threat to national security or public safety. “This is yet another step towards knowing who is coming to the United States — that they are who they say they are and that they do not pose a threat to our nation,” said Homeland Security Secretary Kirstjen Nielsen in a statement.

Although disregarded by some at the time as overreacting, this blogger has noted in prior discussion of so-called extreme vetting policy that although it was initially discussed in a very narrow geographical and situational context the establishment of the National Vetting Center and the presumption that all future US Immigration processing will involve said institution shows that this policy will have broad ramifications for all visa applicants.

What does this mean for the timing of US visa applications? At this time it is too soon to say whether the addition of National Vetting Center protocols will result in slower processing times. However, it stands to reason that adding an entirely new institutional bureaucracy to the overall immigration framework will result in at least some delays in the processing of petitions and applications.

As has been discussed previously on this blog and through some of our firm’s videos: the Trump administration’s policies with respect to Immigration could have wide ranging and long lasting ramifications for those seeking visas in the future. Furthermore, if a deal can be reached with respect to Comprehensive Immigration Reform it looks as though the era of so-called “chain migration” (allowing extended family of Lawful Permanent Residents and American citizens to seek visa benefits)  and the visa lottery will likely come to an end.

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26th June 2015

In a historic decision the United States Supreme Court has legalized same sex marriage across the United States of America. The decision coming approximately 2 years after the important decision which provided Federal recognition to same sex marriages performed in States where  such unions were legal; the Supreme Court has ruled that same sex couples have a right to marry in any State throughout the country. As noted in a recent article in the Washington Post, Justice Kennedy pointed out the blatant inequality of the legal situation prior to this ruling:

“The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest,” he wrote. “With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”

This ruling is certainly a major victory for the LGBT community. For those who live overseas or who have a same sex partner abroad the ruling smooths out some of the rough edges of the United States Immigration process for same sex couples. In the past, a same sex couple could obtain a K1 Visa (for a fiance) in much the same way that a different sex couple could. However, if the couple intended to reside in a State that did not recognize same sex unions, then the couple might then be required to travel to a State which recognized such unions. With this recent ruling, that issue is effectively resolved. As has been previously noted on this blog, the US visa process for same sex couples has become essentially the same as the process for different sex couples. A Thai-American same sex couple may now opt to seek a fiance visa based upon an intention to marry in any US jurisdicition, or if already legally married the couple may choose to seek either and IR-1 or CR-1 immigrant visa based upon legal marriage to an American citizen.

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17th September 2013

Since the relatively recent decision from the United States Supreme Court known colloquially as the Windsor decision, there have been a few lingering questions from members of the LGBT community regarding the United States immigration options now available for same sex couples.

Due to section 3 of the Defense of Marriage Act (DOMA) in the past it was not possible for same sex married couples (even those with a valid marriage in one of those American jurisdictions permitting same sex marriage) to receive federal benefits based upon their marriages. This lack of federal recognition precluded the possibility of a United States Citizen or Lawful Permanent Resident sponsoring a foreign spouse or fiance for a US marriage visa or a US fiance visa. With the high Court’s pronouncement that same sex marriage should be accorded the same recognition as different sex marriage this all changed.

Section 3 of DOMA reads as follows:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

From the moment the Supreme Court ruled this section unConstitutional, the Federal government was instantly required to allot the same benefits to lawfully married same sex and LGBT couples as would be allotted to different sex couples in similar circumstances. What does this mean from an immigration standpoint? LGBT and same sex couples are now permitted to petition and apply for the same types of visas as their different sex counterparts. Therefore, a couple of the same sex who is already married in the U.S. or a foreign jurisdiction recognizing such unions may now apply for a U.S. marriage visa such as the CR1 visa, the IR1 visa, or the K3 visa. Furthermore, the United States Citizenship and Immigration Service (USCIS) has made it clear that they will also adjudicate K1 Visa petitions (petitions for immigration benefits for foreign fiances of U.S. Citizens) for same sex couples in the same way that such petitions are adjudicated for different sex couples.

The Catch Section 2

One issue that has been of concern for experts studying this issue is the practical impact of the Court’s seeming unwillingness to speak to the issue of the Constitutionality of Section 2 of DOMA. Section 2 of DOMA reads as follows:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

The fact that Section 2 of DOMA has not been overturned means that same sex couples may NOT receive the same STATE benefits as their different sex counterparts depending upon the local laws of the couples’ State of residence and notwithstanding the fact that the couple may have a perfectly legal marriage in one of those U.S. jurisdictions allowing such marriages. An example of how this could work in a practical sense would be a situation where the same sex couple is married legally in one state, but resides in a state which forbids same sex unions, a spouse having state retirement benefits may not be able to fully pass on their retirement benefits to their same sex spouse. How would this work in an immigration context? USCIS and the Department of State have already issued answers to a series of frequently asked questions regarding LGBT immigration. On the question of US fiance visas, the USCIS as well as the State Department have noted that so long as the couple has a bona fide intention to celebrate their marriage in one of those states which permit such unions then the immigration petition and application will be adjudicated no differently than a similarly situation petition or application for a different-sex couple.

One issue which may be concerning for same sex partners in the Kingdom of Thailand arises from the fact that, at present, same sex marriage is not legal under Thai law and therefore authorities in Thailand will not register a marriage to two people of the same sex. That stated, there is currently legislation being drafted to allow same sex marriage in Thailand. However, as of the time of this writing it is not clear whether the Thai government will ultimately pass said legislation. As there is not another jurisdiction in the region which recognizes same sex unions, it may not be feasible for same sex partners to marry prior to submitting a US marriage visa petition. This leaves many same sex Thai-American couples in a position where their only option is to apply for a K-1 fiance visa and marry in the United States.

For related information, please see: K1 Visa Thailand.

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29th June 2013

After the landmark decision handed down by the United States Supreme Court in which the Court held that section 3 of the Defense of Marriage Act (DOMA) violates the 5th Amendment of the United States Constitution there has been increasing speculation regarding how this will impact those seeking United States Immigration benefits such as US visas and Lawful Permanent Residence (Green Card status). It recently came to this blogger’s attention that the Secretary of the Department of Homeland Security, Janet Napolitano, recently commented on this issue, to quote her comments directly from the DHS official website:

“I applaud today’s Supreme Court decision in United States v. Windsor holding that the Defense of Marriage Act (DOMA) is unconstitutional. This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits.  I am pleased the Court agreed with the Administration’s position that DOMA’s restrictions violate the Constitution. Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”

Clearly it appears that DHS is in the process of implementing new policies which would comport with the Court’s decision. This is likely to have a tremendous impact upon same-sex bi-national couples. Before the Court handed down their decision it was not possible for most gay, lesbian, bi-sexual, or transgender (LGBT) couples to obtain immigration benefits based upon their marital relationship. Now that the Supreme Court has ruled that same sex marriages will receive the same recognition as different-sex mariages in the eyes of federal law the door is now open for LGBT couples to apply for benefits such as a “Green Card” or an immigrant visa (IR-1, CR-1). It may also be possible for same sex bi-national couples who are not yet married to apply for a K-1 fiance visa based upon the couple’s intention to travel to the United States to marry in one of those States (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington) that recognize same-sex marriage. That being stated, it is likely that it may take some time to implement proper policies to reflect the new legal reality, but the time is right for same sex bi-national couples to begin researching their options with regard to United States immigration as it appears likely that one day soon a same sex spouse of an American Citizen will receive an immigrant visa based upon the couple’s marital status.

For related information please see: US Visa Thailand or K1 Visa Thailand.

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6th April 2012

The administration of this web log routinely posts the estimated case processing times of the United States Citizenship and Immigration Service (USCIS) in order to provide pertinent information to interested parties. The following estimated processing times are quoted directly from the official website of USCIS:

Field Office Processing Dates for California Service Center as of: January 31, 2012
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 June 22, 2011
I-130 Petition for Alien Relative U.S. citizen filing for a spouse, parent, or child under 21 5 Months
I-130 Petition for Alien Relative U.S. citizen filing for an unmarried son or daughter over 21 January 13, 2010
I-130 Petition for Alien Relative Permanent resident filling for an unmarried son or daughter over 21 May 22, 2010
I-130 Petition for Alien Relative U.S. citizen filing for a married son or daughter over 21 June 15, 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 February 24, 2007
I-526 Immigrant Petition By Alien Entrepreneur For use by an entrepreneur who wishes to immigrate to the United States 8 Months
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-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)] 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)] 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 All other applications for employment authorization 3 Months
I-821 Application for Temporary Protected Status El Salvador extension 3 Months
I-821 Application for Temporary Protected Status El Salvador initial or late filing 3 Months
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-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) 6 Months
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 Texas Service Center as of: January 31, 2012
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 November 9, 2011
I-129F Petition for Alien Fiance(e) K-1/K-2 – Not yet married – fiance and/or dependent child October 2, 2010
I-129F Petition for Alien Fiance(e) K-3/K-4 – Already married – spouse and/or dependent child October 2, 2010
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 a spouse, parent, or child under 21 5 Months
I-130 Petition for Alien Relative U.S. citizen filing for an unmarried son or daughter over 21 5 Months
I-130 Petition for Alien Relative Permanent resident filling for an unmarried son or daughter over 21 5 Months
I-130 Petition for Alien Relative U.S. citizen filing for a married son or daughter over 21 5 Months
I-130 Petition for Alien Relative U.S. citizen filing for a brother or sister 5 Months
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 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-212 Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal Readmission after deportation or removal May 3, 2010
I-360 Petition for Amerasian, Widow(er), or Special Immigrant All other special immigrants April 2, 2011
I-360 Petition for Amerasian, Widow(er), or Special Immigrant Violence Against Women Act (VAWA) May 3, 2010
I-360 Petition for Amerasian, Widow(er), or Special Immigrant Religious workers April 2, 2011
I-485 Application to Register Permanent Residence or to Adjust Status Employment-based adjustment applications June 2, 2011
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 August 16, 2011
I-485 Application to Register Permanent Residence or to Adjust Status Based on refugee admission more than 1 year ago 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 June 4, 2011
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)] August 9, 2011
I-765 Application for Employment Authorization Based on a request by a qualified F-1 academic student. [(c)(3)] August 9, 2011
I-765 Application for Employment Authorization Based on a pending asylum application [(c)(8)] October 17, 2011
I-765 Application for Employment Authorization Based on a pending I-485 adjustment application [(c)(9)] August 9, 2011
I-765 Application for Employment Authorization Based on TPS for El Salvador [(c)(19)(a)(12)] 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 All other applications for employment authorization August 9, 2011
I-817 Application for Family Unity Benefits Voluntary departure under the family unity program 6 Months
I-824 Application for Action on an Approved Application or Petition To request further action on an approved application or petition May 31, 2011
N-565 Application for Replacement Naturalization/Citizenship Document U.S. citizen applying for a replacement of naturalization or citizenship certificate 6 Months
N-600 Application for Certification of Citizenship Application for recognition of U.S. citizenship 5 Months
Field Office Processing Dates for Vermont Service Center as of: January 31, 2012
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 November 20, 2011
I-129 Petition for A Nonimmigrant Worker H-1B – Specialty occupation – Change of status in the U.S. November 20, 2011
I-129 Petition for A Nonimmigrant Worker H-1B – Specialty occupation – Extension of stay in the U.S. October 16, 2011
I-129 Petition for A Nonimmigrant Worker H-1C – Nurses 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 December 18, 2011
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 November 27, 2011
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 June 17, 2011
I-130 Petition for Alien Relative Permanent resident filling for a spouse or child under 21 January 9, 2011
I-130 Petition for Alien Relative U.S. citizen filing for a spouse, parent, or child under 21 5 Months
I-130 Petition for Alien Relative U.S. citizen filing for an unmarried son or daughter over 21 5 Months
I-130 Petition for Alien Relative Permanent resident filling for an unmarried son or daughter over 21 5 Months
I-130 Petition for Alien Relative U.S. citizen filing for a married son or daughter over 21 5 Months
I-130 Petition for Alien Relative U.S. citizen filing for a brother or sister November 13, 2010
I-131 Application for Travel Document Refugee or asylee applying for a refugee travel document August 2, 2011
I-131 Application for Travel Document Permanent resident applying for a re-entry permit August 2, 2011
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-212 Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal Readmission after deportation or removal May 2, 2011
I-360 Petition for Amerasian, Widow(er), or Special Immigrant All other special immigrants April 17, 2011
I-360 Petition for Amerasian, Widow(er), or Special Immigrant Violence Against Women Act (VAWA) April 17, 2011
I-360 Petition for Amerasian, Widow(er), or Special Immigrant Religious workers June 5, 2011
I-485 Application to Register Permanent Residence or to Adjust Status Employment-based adjustment applications August 14, 2011
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-526 Immigrant Petition By Alien Entrepreneur For use by an entrepreneur who wishes to immigrate to the United States 8 Months
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-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 June 20, 2011
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)] December 25, 2011
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)] October 31, 2010
I-765 Application for Employment Authorization Based on TPS for Honduras/Nicaragua [(c)(19), (a)(12)] January 6, 2011
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 July 16, 2011
I-821 Application for Temporary Protected Status El Salvador extension October 31, 2010
I-821 Application for Temporary Protected Status El Salvador initial or late filing October 31, 2010
I-821 Application for Temporary Protected Status Honduras and Nicaragua extension October 31, 2010
I-821 Application for Temporary Protected Status Honduras and Nicaragua initial or late filing October 31, 2010
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) 6 Months
I-829 Petition by Entrepreneur to Remove Conditions Removal of lawful permanent resident conditions (immigrant investors) based on PL107-273 6 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 July 25, 2011
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 May 23, 2011
N-565 Application for Replacement Naturalization/Citizenship Document U.S. citizen applying for a replacement of naturalization or citizenship certificate 6 Months
N-600 Application for Certification of Citizenship Application for recognition of U.S. citizenship 5 Months
N-643 Application for Certification of Citizenship on Behalf of an Adopted Child Application for recognition of U.S. citizenship on behalf of an adopted child 5 Months

It should be noted that these processing time estimates may not accurately reflect the overall time it takes to process an entire case as further time may be expended processing a case through the National Visa Center (NVC). Furthermore, those awaiting a US visa (such as a K-1 visa or a CR-1 visa) outside of the United States will likely be required to undergo Consular Processing at a US Embassy or US Consulate abroad  before prospective issuance.

For related information please see: K1 visa Thailand.

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