Integrity Legal

Posts Tagged ‘US Family Visa’

30th November 2010

Those who are regular readers of this blog will no doubt be aware that the issue of 221(g) denials promulgated in relation to visa applications brought before at US Missions, Embassies, and Consulates outside of the United States can be very concerning for those seeking American Immigration benefits for a foreign loved one. In the case of the US Embassy in Vietnam, most US family visa cases are processed out the US Consulate in Ho Chi Minh City. It would seem that the American Consulate in HCMC is considered by State Department officials to be a “high volume” Post as a significant number of visa applications are adjudicated in that jurisdiction each year. Meanwhile, as is the case for any US Mission abroad, the officers at the US Consulate in HCMC take visa fraud seriously and therefore heavy scrutiny is placed upon pending visa applications in an effort to ensure that those receiving visa benefits are legally entitled to such benefits. Furthermore, Consular Officers also review US family visa applications very carefully in order to ascertain whether or not a prospective foreign beneficiary has the requisite subjective intent. Subjective intent is often of great concern in K1 visa applications as the applicant must have a genuine intention to marry their American fiance within 90 days of entering the USA.

The culmination of the US visa process is usually the visa interview which is generally conducted at the US Mission with Consular jurisdiction to adjudicate the visa application. However, in some cases, a Consular Officer may feel that further documentation is necessary in order to complete the adjudication. The American State Department refers to the 221(g), which is a reference to section 221(g) of the United States Immigration and Nationality Act, as a refusal although for purposes of the Department of Homeland Security the 221g is considered a denial. This can be an important distinction for foreign nationals holding the passport of a country which participates in the US Visa Waiver Program as the United States Customs and Border Protection Service (USCBP) considers 221g refusals to be denials which must be disclosed by travelers through the Electronic System for Travel Authorization (ESTA). It should noted that Vietnam is not currently a participant in the Visa Waiver Pilot Program.

In some cases, 221g denials are highly complex and may cause frustration to the applicant and/or their American counterpart. Some find that attorney assistance can be beneficial. An American Immigration attorney can provide insight into the overall process and also assist in making a follow-up with the US Consulate regarding a 221g denial. Furthermore, American Immigration attorneys based in South East Asia can deal with such matters before the Consulate in real time. This can be especially beneficial if the 221g evolves into a situation in which the visa application is denied due to a legal finding of inadmissibility. This can sometimes occur and in such an event the finding of inadmissibility may only be overcome through use of an I-601 waiver. In some cases, there may be no remedy if the applicant is found inadmissible for reasons that cannot be waived. Those thinking about filing for immigration benefits should always be aware that putting on the best case at the outset is the most efficient way of attempting to ensure visa issuance.

For related information please see: US Visa Vietnam or US fiance visa.

more Comments: 04

8th October 2010

Although it has been written of often on this blog, the issue of section 214 (b) of the United States Immigration and Nationality Act and its impact upon the United States tourist visa process is one of concern to some abroad as few understand why its application can be somewhat unsympathetic when applied to applicants who have a boyfriend or girlfriend of American nationality or in Lawful Permanent Resident status in the United States of America.

Those seeking a US tourist visa must subject themselves to an interview prior to visa issuance (and visa issuance assumes application approval which is not a foregone conclusion). At the visa interview the Consular Officer will adjudicate the merits of a tourist visa application. Section 214(b) of the United States Immigration and Nationality Act compels Consular Officers to deny a tourist visa application (or any non-immigrant visa application that requires 214b analysis such as a J1 visa, an F1 visa, or a B1 visa to name just a few relevant categories) if the officer finds that the applicant cannot overcome the presumption of immigrant intent contained within the provisions of section 214b. This presumption creates a sort of “strong ties” vs. “weak ties” analysis which is utilized by those adjudicating non-immigrant applications. Therefore, those with strong ties to Malaysia (or another country abroad) and weak ties to the USA will be more likely to be granted a tourist visa compared to those in circumstances which mitigate in favor of the presumption of immigrant intent.

In the past, there were some who attempted to utilize the B2 visa (the categorical classification of the US Visitor Visa) as a means of circumventing the comparatively long processing time for visas such as the K1 visa or the CR1 visa. It should be noted that applying for a non-immigrant visa while maintaining immigrant intent could be construed as visa fraud particularly where the applicant is seeking a Visitor Visa which specifically is meant for those wishing to travel to the USA for a relatively short holiday.

Those wishing to bring a Malaysian loved one to the United States for the purpose of marriage are well advised to seek either a US fiance visa (K1 visa) or a US Marriage Visa (if the couple is already married the duration of the marriage may dictate if the Malaysian spouse is eligible for a CR1 Visa or an IR1 visa). A marriage or intended marriage should never be entered into as a pretext. Therefore, so-called marriages of convenience should not be the basis of a visa petition. Those seeking US family visa benefits are well advised to only seek visa benefits based upon a genuine bona fide relationship.

For related information please see: US Visa Lao Girlfriend of K1 Visa Malaysia.

more Comments: 04

15th July 2010

This blog routinely discusses issues and news relevant to US Immigration. In a recent announcement from the Office of Public Engagement, within the United States Citizenship and Immigration Service (USCIS), it was noted that a new Director has been named to oversee the activities of the California Service Center. The following is a copy of the announcement directly quoted from the American Immigration Lawyers Association (AILA) website:

Dear Stakeholders,

USCIS Director Alejandro Mayorkas has appointed Rosemary Langley Melville, currently the Acting Regional Director in the Southeast Region, as the new California Service Center (CSC) Director. Ms. Melville will assume her new responsibilities in late August.

Effective Monday, July 12th Barbara Velarde, Deputy Associate Director for Service Center Operations, assumed the role of Acting Director of the CSC with Phoenix District Director John Kramar as the Acting Deputy Director. We look forward to working together as we continue to address areas of common interest.

The California Service Center plays an integral part in US Family Visa cases as it processes a large number of visa petitions each year. For those living in certain Western US States the California Service Center is most often the processing point for K1 visa applications as well as the I-129f petitions submitted in connection with the K3 Visa category.

Those seeking traditional US Marriage Visa benefits may also have their petition processed by the California Service Center. When an I-130 petition (used by those seeking the CR1 and/or IR1 visa) is submitted to USCIS, the Lockbox Facility will usually forward the petition to either the California Service Center or its counterpart, the USCIS Service Center in Vermont. USCIS adjudicates the merits of the petition and assuming there is an approval in the case the file will be forwarded to the Department of State’s National Visa Center where it will either be quickly forwarded to the proper US Consulate or US Embassy (as is the case in the K1 visa process or the K3 visa process) or the NVC will hold the petition and begin the process of accumulating relevant documentation. After necessary documents are compiled the whole file will be forwarded to the Consular Post with appropriate jurisdiction.

If a visa application is denied by the US Consulate then the file will be sent back to USCIS for revocation. Under certain circumstances, a petitioner may challenge a USCIS revocation.

For further information regarding recent developments pertaining to Consular Processing and USCIS revocation please see: US visa denial.

more Comments: 04

7th April 2010

As this author has discussed in previous blog posts, one major reason for US visa denial is based upon a finding that a legal grounds of inadmissibility exists in a given case. One legal grounds of inadmissibility is based upon a finding by the Consular Officer that the applicant committed a Crime Involving Moral Turpitude (CIMT). That being said, at times it can be difficult to determine whether or not an individual’s prior actions would be considered a crime involving moral turpitude. The Foreign Affairs Manual (FAM) provides some insight into what types of crimes are considered to be crimes involving moral turpitude, the following are excerpts from the FAM:

“9 FAM 40.21(a) N2.3-1 Crimes Committed Against
Property
(CT:VISA-1318; 09-24-2009)
a. Most crimes committed against property that involve moral turpitude
include the element of fraud. The act of fraud involves moral turpitude
whether it is aimed against individuals or government. Fraud generally
involves:
(1) Making false representation;
(2) Knowledge of such false representation by the perpetrator;
(3) Reliance on the false representation by the person defrauded;
(4) An intent to defraud; and
(5) The actual act of committing fraud”

Property Crimes are not the only activities that can be construed as crimes involving moral turpitude as criminal actions which violate or undermine governmental authority are also considered to be CIMT:

“9 FAM 40.21(a) N2.3-2 Crimes Committed Against
Governmental Authority
(CT:VISA-1318; 09-24-2009)
a. Crimes committed against governmental authority which fall within the
definition of moral turpitude include:
(1) Bribery;
(2) Counterfeiting;
(3) Fraud against revenue or other government functions;
(4) Mail fraud;
(5) Perjury;
(6) Harboring a fugitive from justice (with guilty knowledge); and
(7) Tax evasion (willful).”

The FAM also goes on to note the various activities that may not be considered CIMT. However, it is incumbent upon the adjudicating officer to examine the facts of a given case and make a decision as to whether the underlying actions that gave rise to a criminal conviction in fact constitutes a Crime Involving Moral Turpitude for purposes of visa issuance. If the officer decides that a CIMT was committed, then the visa application will likely be denied. Under the doctrine of Consular NonReviewability (also known as Consular Absolutism) this decision is not subject to appeal. However, the applicant make be able to overcome the visa denial by applying for, and obtaining, an I-601 waiver.

Of interest to some may be the recent Circuit Court decision which held:

“An order of removal from the United States was entered against Petitioner Armando Alvarez-Reynaga based on his felony conviction for receipt of a stolen vehicle in violation of section 496d(a) of the California Penal Code. His petition for review presents the questions of whether a conviction under that statute qualifies categorically as a conviction for an aggravated felony, and whether it qualifies categorically as a crime involving moral turpitude. We conclude that it qualifies as the first, but not the second. We deny the petition for review.”

As the law continues to evolve, so to does the definition of CIMT and the activities that are considered to be covered by the CIMT provisions of the Immigration and Nationality Act.

For more information about US Visas from the Kingdom of Thailand please see: US Visa Thailand.

(Readers should be advised that the above does not constitute a full analysis of CIMT issues. Each application has its own unique set of facts and those facts must be analyzed on an individual basis in order to form a professional opinion.)

more Comments: 04

30th October 2009

The United States of America is a nation founded by Immigrants and the descendants of Immigrants. US Family Immigration is one of the most important aspects of the American Immigration system as it helps bind multinational families to the United States of America. In a recent article in the Immigration Impact blog, issues correlating to US Family Immigration were discussed at length. Below are some of the ideas conveyed regarding the system of bringing families together in the USA:

The U.S. immigration system has always promoted family unity by awarding the majority of visas to the families of current U.S. residents, which ensures that close family members are not kept apart. The principle of family unity has long been a central tenet of our immigration laws and has contributed to the economic and social prosperity of our country and immigrant populations.

Even though the USA was founded by Immigrants, today relatives of those in the United States of America must wait years, and sometimes decades, in order to be reunited with their loved ones. More from Immigration Impact:

For instance, the average current wait time for spouses and minor children of legal permanent residents (green card holders) is five years, and the wait time for adult children of U.S. citizens is six years for those still single and eight years for those who have married. Siblings of U.S. citizens must wait between ten and eleven years.

This article went on to note the benefits that Immigrants bring to the US economy. When prospective immigrant from around the world are free to bring their families to the USA they are more likely to melt into the “melting pot,” that is an inexorably part of American culture. Failing to allow family members of these immigrants to come to the US creates a situation in which large amounts of capital depart the United States as Immigrants in the USA must send money abroad to support families who cannot get into the US. There have been some attempts in the past to alleviate these problems, but as this article points out:

Despite the demographic shifts created by various immigration reforms over the years, there has been no substantial adjustment of our family immigration laws in the last 20 years. The broken system has left an estimated 4 million close family members of U.S. citizens and green card holders—potential Americans who would be a tremendous asset to this country—stuck in visa backlogs.

It should be noted that this is not the situation for fiancees and spouses of US Citizens. Luckily, spouses and fiancees of US Citizens are given priority and do not need to wade through the quota system which applies to other types of family based immigration categories. Currently, the K1 fiance visa, K3 marriage visa, and the CR1 visa are processing through the system in approximately: 7, 9, and 11 months respectively.

more Comments: 04

The hiring of a lawyer is an important decision that should not be based solely on advertisement. Before you decide, ask us to send you free written information about our qualifications and experience. The information presented on this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.