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Posts Tagged ‘US Visa’
6th MAR 2010
Since the recent worldwide economic downturn the global tourism industry has suffered a great deal. Much can be attributed to the fact that people have less disposable income, but others are of the opinion that increased promotion may be the key to dealing with this issue. In the United States, the government and business leaders have devised a plan to promote more travel to the USA. To quote a recent posting on CNN’s website:
“President Obama signed legislation into law Thursday to create the United States’ first national travel promotion program…The act will create a nonprofit Corporation for Travel Promotion that will promote the United States as a travel destination and explain travel and security policies to international visitors…”
One aspect of the new program that is stirring up some resentment is the addition of a $10 fee that much be paid by those wishing to enter the United States on the visa waiver program (not to be confused with an I-601 waiver of inadmissibility):
“A $10 fee charged to visitors from countries included in the Visa Waiver Program will partially fund the public-private organization. These visitors will pay the fee every two years when they register online using the Department of Homeland Security’s Electronic System for Travel Authorization…”
As readers may recall, The Electronic System For Travel Authorization (ESTA) is used by those who wish to seek entry into the USA on a visa waiver. This system pre-screens foreign entrants for security purposes. As mentioned previously, tourism around the world is declining, but this program may provide stimulus to this sector of the US economy:
“Despite strong global growth in long-haul international travel between 2000 and 2008, the U.S. welcomed 633,000 fewer overseas visitors in 2008 than it did in 2000, according to figures from the U.S. Department of Commerce. Oxford Economics, an economic consulting and forecasting company, estimates a well-executed promotional program would draw 1.6 million new international visitors annually and generate $4 billion in new visitor spending.”
It remains to be seen how this program will work, but certainly encouragement of tourism is necessary. However, some have questioned how requiring a new fee for travel to the United States will encourage tourism. This is certainly a valid point as increased restrictions on travel for so-called “visa waiver countries” may be one of the reasons behind decreased tourism. There are those who have called ESTA a new type of visa and now that there is a charge for the service it is beginning to become a sort of online visa. That being said, balancing security and economic concerns is difficult.
This new law will likely have very little impact for those from Thailand as Thai nationals do not enjoy “visa waiver” privileges. For this reason Thai nationals must apply for a US tourist visa if they wish to enter the US for recreational purposes. Further, Thais wishing to travel to the US to be with a fiance or spouse must apply for either a K1 visa or a US marriage visa before they will be able to be lawfully admitted.
4th MAR 2010
Court Finds USCIS Overstepped Authority
Posted by : admin
In some cases, it may be necessary to file a lawsuit against the United States Citizenship and Immigration Service (USCIS). These instances are viewed as aberrations by most US Immigration lawyers because, for the most part, USCIS follows the statutory scheme set out by the United States Congress. In some case, a Petitioner or Beneficiary must seek to have an agency compelled to perform a function that is required pursuant to their duties in office. In cases such as this, a writ of mandamus may be the proper remedy. However, when USCIS acts outside of the rules, it may be necessary for a petitioner or beneficiary to take legal action in the form of a lawsuit in order to remedy an injustice.
Recently, the United States Ninth Circuit Court of Appeals heard a case involving the adjudication of a petitioner for an EB-1 visa. To quote a recently promulgated email from the Immigration Policy Council:
“Kazarian v. USCIS, involves a theoretical physicist whose employment-based visa was denied because he did not demonstrate ‘the research community’s reactions to his [scholarly] publications’ - an arbitrary requirement with no justification in the law.”
Many people are under the mistaken impression that agencies, such as, but not limited to, USCIS, involved in the United States visa process make make unilateral decisions regarding what will be required of the petitioner and beneficiary in a given case. This is not true as the requirements for petition approval are based upon the relevant law. No agency, be it USCIS, Immigration and Customs Enforcement (ICE), nor Customs and Border Protection (CBP) may unilaterally create requirements that do not exist under US law. This point was driven home in the case itself when the court was quoted as saying that:
“neither USCIS nor an [Administrative Appeals Office] may unilaterally impose novel substantive or evidentiary requirements beyond those set forth [in the regulations].”
This case marks a positive step in the right direction away from governmental capriciousness. In an interesting comment about this case Mr. Benjamin Johnson, Executive Director of the American Immigration Council stated:
“Immigration law is complicated enough without the immigration agency imposing additional requirements and burdens of proof that aren’t in the statute or regulations and that ultimately undermine the goal of attracting the best and brightest to our shores.”
United States Immigration is a complex and often confusing area of the law. For more information on American visas, specifically those obtained in the Kingdom of Thailand, please see: US Visa Thailand.
1st MAR 2010
Those going through the US visa process may be aware of the I-864 affidavit of support. This document is used in order for the United States government to receive assurance that the prospective immigrant will not become a public charge in the United States. In family based immigrant visa cases involving visas such as the CR1 Visa or the IR1 visa the I-864 is used. The I-864 should not be confused with the I-134 affidavit of support which is often utilized by those seeking either a K1 visa or a K3 Visa. However, at the time of this writing, it is highly likely that use of the I-134 in K-3 cases will fall by the wayside as fewer K-3 visa applications will be forwarded on to US Embassies and Consulates abroad due to the administrative closure of new K-3 applications at the National Visa Center. That being said, non-immigrant dual intent travel documents such as the K1 fiance visa and the K3 marriage visa do not use the I-864, but use the I-134.
There are certain Immigrant visas which do not utilize the I-864 as the affidavit of support requirement is waived. These type of cases require the submission of the I-864w. To quote the United States Citizenship and Immigration Service (USCIS) in their own instructions for the form itself:
“The Form I-864 is legally required for many family-based immigrants and some employment-based immigrants to show that they have adequate means of financial support and that they are not likely to become a public charge. Certain classes of immigrants are exempt from the I-864 requirement and therefore must file Form I-864W instead of Form I-864 or Form I-864EZ.”
Under the Child Citizenship Act of the year 2000, there are certain children who enter the United States and become United States Citizens by operation of law upon admission at a port of entry by the Customs and Border Protection Service (CBP). These children may then apply for a certificate of citizenship which is somewhat similar to a naturalization certificate except for the fact that the child is not naturalized, but a citizen statutorily. In cases where the child would become a citizen upon entry, the obligations incurred by an I-864 would automatically extinguish upon entry since the child would be a US Citizen. Therefore, the need to adjudicate means of support are made somewhat redundant. This may be the policy reason underlying the promulgation of the I-864w.
27th FEB 2010
Grants for Programs to Educate Aspiring American Citizens
Posted by : admin
US Citizenship is an aspiration for many of those individuals who opt to immigrate to the United States of America. Naturalization is the legal process that foreign nationals undertake when they wish to become a US Citizen. For many the process is somewhat confusing. The naturalization process can also seem daunting as a foreign national must spend a significant amount of time any money in order to naturalize. Recently the United States Citizenship and Immigration Service (USCIS) stated that funds will be made available to assist in integrating foreign nationals into the American polity, the following is a press release from USCIS promulgated by the American Immigration Lawyers Association (AILA):
“U.S. Citizenship and Immigration Services (USCIS) announced today the availability of two different
grants designed to help prepare lawful permanent residents (LPRs) for citizenship and advance integration in the United States. This year’s program will make nearly $7 million available for citizenship education in communities across the country.”
This 7 million dollar grant shows a marked increase in funding for this initiative as this program was not as heavily funded in the past. It could be inferred that USCIS is resolved to promote Citizenship education for foreign nationals:
“’Each aspiring citizen represents a personal story of sacrifice and triumph,” said USCIS Director
Alejandro Mayorkas. “This funding will increase opportunities for English language instruction, promote the rights and responsibilities that define our nation, and provide much-needed support for individuals on the path to citizenship.’”
The funding provided in these grants will help facilitate multiple goals. All of these goals are within the context of Immigration to the United States and Naturalization to American Citizenship:
The first grant will strengthen locally-based citizenship preparation programs. The second grant will
increase the capacity of members or affiliates of national, regional, or statewide organizations to offer
citizenship services in underserved communities. USCIS expects to announce an estimated 50 award
recipients in September 2010.
When comparing this initiative to its counterpart in 2009, the difference in funding becomes glaringly obvious:
During fiscal year (FY) 2009, USCIS awarded $1.2 million in grants to 13 immigrant-serving organizations across the country. These awards are currently expanding services and outreach on U.S. citizenship, educational opportunities, and available resources to nearly 70,000 LPRs in 11 states.
That being said, USCIS’s efforts to fully integrate foreign nationals into the tapestry of Americana should be applauded as it marks a positive step. There are many who feel that naturalization makes individuals more engaged in the American way of life and provides recent immigrants with an aim and goal to pursue.
For more information about this and other US Immigration issues please see: Fiance Visa Thailand.
25th FEB 2010
K3 Visa Thailand: Does New NVC Policy Mark The End of K3 Visas?
Posted by : admin
The K3 Visa was designed as an expedited alternative to Immigrant Marriage visas such as the IR1 Visa and the CR1 Visa. At one time, it could take as long as 3 years to process a marriage visa petition, which is why Congress created the K-3 visa category. However, in recent years the need for the K-3 visa has been less acute when compared to the past as the current processing times for the aforementioned Immigrant marriage visas is about 11-12 months. When comparing this to the K3 visa processing time one can see that the K-3 visa is becoming less of a necessity.
With that in mind, the United States Department of State’s National Visa Center (NVC) recently made an important announcement with regard to K-3 visas, the following quote is from a State Department publication promulgated by the American Immigration Lawyers Association (AILA):
“Important Notice: Effective February 1st, 2010, when both the I-129F petition for a nonimmigrant K visa and the I-130 petition for an IR-1 (or CR-1) spouse of a U.S. citizen visa have been approved by USCIS and sent to the National Visa Center (NVC), the availability as well as the need for a nonimmigrant K-3 visa ends. If the NVC receives both petitions:
The nonimmigrant K visa will be administratively closed.
The application process explained below will not be applicable and cannot be used.
The NVC will contact the petitioner and you with instructions for processing your IR-1 (or CR-1) immigrant visa. For more information on the immigrant visa process review the Immigrant Visa for a Spouse webpage. If the NVC does not receive your I-130 petition and I-129F at the same time, the NVC will process your I-129F petition. Then NVC will send the petition to the embassy or consulate in the country where the marriage took place. If your marriage took place in the U.S., the NVC will send the petition to the embassy or consulate that issues visas in your country of nationality. If your marriage took place in a country that does not have an American embassy, or the embassy does not issue visas, the NVC will send your petition to the embassy or consulate that normally processes visas for citizens of that country. For example, if your marriage took place in Iran where the U.S. does not have an embassy your petition would be sent to Turkey.”
There are some who are likely asking themselves: What does this all mean? USCIS adjudicates all visa petitions and, upon approval, forwards them to the National Visa Center (NVC). NVC processes all K3 visa applications before they go to the Consulate or Embassy abroad (for those applications which are to be processed in Thailand, the NVC handles the application prior to receipt by the US Embassy Bangkok).
In essence, the NVC will no longer process K-3 visa applications if an Immigrant visa application is received by the NVC prior to, or at the same time as, a K3 application. As a practical matter, all K-3 petitions have an Immigrant visa counterpart. It is believed that, most of the time, the NVC receives these applications either in tandem or nearly simultaneously. There may be a few instances where a K-3 application will make it to NVC prior to the Immigrant visa application, but for the most part this is not the case. As a result, it is highly likely that the K-3 visa will no longer be available to those seeking marriage visa benefits because the Immigrant visa application will reach the NVC prior to, or at the same time as, the K-3 application.
23rd FEB 2010
American State Department and Cuba Discuss Possible Accord
Posted by : admin
As many readers are probably aware, the United States of America and Cuba have had long standing political tensions. Official US policy regarding Cuba has remained largely unchanged over the past 40 years, but recently officials from the American State Department have been conducting meetings with Cuban authorities in order to come to some sort of agreement regarding migration between the two countries. The quotes cited below are from a recently promulgated State Department publication:
“On Friday, February 19, 2010 the United States and Cuba met in Havana to discuss implementation of the U.S.-Cuba Migration Accords. This was the second such meeting since the decision to renew the Talks in 2009. In the course of the meeting, the U.S. team, led by Principal Deputy Assistant Secretary of State for Western Hemisphere Affairs Craig Kelly, reaffirmed the U.S. commitment to promote safe, orderly, and legal migration.”
Many feel that the current state of the US-Cuban relationship has lead to a situation where the security of the United States and Cuba is affected. Also, US officials are seeking to be given access to information about those who are sent back to Cuba. Therefore, an accord with Cuba seems to increasingly be considered a necessity:
“The agenda for the talks reflected longstanding U.S. priorities on Cuba migration issues, including: ensuring that the U.S. Interests Section in Havana is able to operate fully and effectively; ensuring that the U.S. Interests Section in Havana is able to monitor the welfare of repatriated migrants; and gaining Cuban government acceptance for the repatriation of all Cuban nationals who are excludable on criminal grounds…The United States views these talks as an avenue to achieve practical, positive results that contribute to the full implementation of the Accords and to the safety of citizens of both countries.”
This blog is mostly concerned with American Immigration issues for foreign nationals in Southeast Asia. That being said, we try to provide information about US Immigration generally. Although the above issues do not directly impact US Immigration from Thailand, an accord with Cuba on these Immigration issues would likely mark a watershed moment in Cuban-American relations.
At one time, it was difficult for people from Communist countries to travel to the United States. Since the end of the cold war and the “thawing” of relations between the United States and China, Cuba has remained a country with few official ties to the United States. The above accord, may mark the beginning of friendlier relations between the two countries.
20th FEB 2010
US Citizenship for Lawful Permanent Residents in the US Army
Posted by : admin
United States Citizenship is a substantial benefit for many foreign nationals and naturalization is something that many Immigrants in the United States take very seriously. This author recently came upon a publication promulgated by the US Army in which information is provided regarding US Citizenship for Lawful Permanent Residents and Conditional Lawful Permanent Residents who opt to enlist in the Army. The following is a direct quote from that publication.
“Welcome to the United States Army! You are either a Lawful Permanent Resident (LPR) or a Conditional Lawful Permanent Resident (CPR) who has enlisted in the US Army. As a non-US citizen enlisting in wartime, you are eligible to apply for naturalization under Immigration & Nationality Act Section 329 on your first day of active duty, if you so desire. The Army wants you to obtain your U.S. citizenship so that you can use your skills to achieve the Army mission. Obtaining US citizenship will allow you to move into more responsible jobs, open up new career fields, and even allow you to become an officer.”
Although the US Immigration and Nationality Act provides expedited naturalization for those in the military, the United States Citizenship and Immigration Service (USCIS) is still required to adjudicate Naturalization applications. To quote the aforementioned publication further:
“The Army does not decide, however, whether you can become a US citizen. You must file Form N-400, Application for Naturalization (citizenship) with United States Citizenship & Immigration Services (USCIS), part of the US Department of Homeland Security (DHS). USCIS must process your application and decide whether it can be approved.”
This being said, all organizations concerned will strive to see that an enlisted lawful permanent resident’s application for naturalization is processed as quickly as possible.
“United States Citizenship and Immigration Services (USCIS) works with the Army to process citizenship applications during Basic Combat Training (BCT). USCIS and the Army will try to ensure that all non-citizen Soldiers take their oath of citizenship prior to or concurrent with graduation from BCT. USCIS officers are present at each of the five BCT sites on a weekly basis to collect citizenship packets, interview and test Soldiers, and administer oaths. Soldiers should bring a completed citizenship packet to BCT and be prepared to take the citizenship test there. Please note that neither USCIS nor the Army guarantees any Soldier US Citizenship, or that the Soldier will receive citizenship prior to graduation from BCT.”
Although military service does not guarantee United States Citizenship it is admirable that the United States military as well as the USCIS go to great lengths to see that naturalization applications for enlisted personnel are processed in an efficient and timely manner.
For more on American Immigration please see: US Visa Thailand.
18th FEB 2010
US Naturalization and the Kendell Frederick Citizenship Assistance Act
Posted by : admin
Naturalization is the process of obtaining American Citizenship for a foreign national. In some cases, the US naturalization process can be very time consuming, but those who marry a United States Citizen and obtain immigrant status based upon that marriage are subjected to fewer requirements when it comes to US naturalization. This could be of interest to those who enter the United States on a K1 visa or K3 visa as either of these travel documents could put the beneficiary on track for eventual US Citizenship.
The US naturalization process can be relatively different for those who are in the United States military. About 2 years prior to the posting of this article, Congress enacted legislation to make the US naturalization process easier for those in the military. To quote a recent publications from the Department of Homeland Security:
“In June 2008, Congress passed the Kendell Frederick Citizenship Assistance Act to streamline the process for U.S. military service members seeking to become U.S. citizens. The act directs the Secretary of Homeland Security to accept fingerprints submitted by military citizenship applicants at the time of their enlistment or from prior submissions to the Department of Homeland Security, expedite the processing of citizenship applications, and implement procedures to ensure rapid electronic transmission of biometric information and safeguarding of privacy.”
Although Congress has enacted the aforementioned legislation, it is incumbent upon the United States Citizenship and Immigration Service (USCIS) to implement the new policy. The above quoted DHS publication is an overview of the current status of the ongoing implementation of the Kendell Frederick Citizenship Assistance Act. To further quote DHS:
“USCIS has taken actions to meet the act’s requirements. Specifically, USCIS has implemented a process to use previously submitted fingerprints for military naturalizations, and it tracks and reports processing time to ensure that it completes adjudication of applications timely. USCIS has also undertaken several information technology initiatives to improve the military naturalization process. However, USCIS’ information technology systems, such as the application processing system and background check support systems, do not meet all user requirements. As a result, personnel must devote resources to work around system limitations. Further, USCIS had not yet completed a privacy assessment for its process to obtain enlistment fingerprints from partner agencies. Without such an assessment, we were unable to assess whether that process was properly safeguarded.”
A streamlined naturalization process for those serving in the US military is a “win-win” situation for both the newly naturalized Citizen as well as the USA as a whole. Although the above privacy issues must be further investigated hopefully the implementation of this act will prove to be an overall success.
15th FEB 2010
Proposed Fee Increases for Consular Services
Posted by : admin
A recently proposed rule would increase the fees charged by the US Department of State for services performed at Embassies and Consulates abroad. To quote the AILA website:
“This rule proposes adjustments in current fees for consular services. The Department of State is adjusting the fees in light of an independent cost of service study’s (“CoSS”) findings that the U.S. Government is not fully covering its costs for providing these services under the current fee structure. The primary objective of the adjustments to the Schedule of Fees is to ensure that fees for consular services reflect costs to the United States of providing the services.”
Although not exhaustive, the following quotes list the proposed fee increases for services that will likely have the biggest impact upon US Citizens resident abroad:
“Passport Book Application Services
The Department is increasing the application fee for a passport book for an adult (age 17 and older) from $55 to $70. The application fee for a passport book for a minor (age 16 and younger) will remain at $40. The CoSS estimated that the cost of processing first-time passport applications for both adults and minors is $105.80 based on a projected FY10 workload of 11.9 million. This cost includes border security costs covered by the passport book security surcharge, discussed immediately below. Because a minor passport book has a validity of just five years, in contrast with the ten-year validity period of an adult passport book, the Department has decided to leave the minor passport book application fee at $40, and allocate the remainder of the cost of processing minor passport book applications to the adult passport application fee.”
The proposed rule goes further as there will be further fee increases for new passport seekers:
“Passport Book Security Surcharge
The Department is increasing the passport book security surcharge from $20 to $40 in order to cover the costs of increased border security which includes, but is not limited to, enhanced biometric features in the document itself. The passport book security surcharge is the same for adult passport books and for minor passport books.”
The addition of visa pages to an American’s passport has always been a courtesy provided free of charge. However, the proposed rule would change this:
“Additional Passport Visa Pages
In the past, the Department provided extra pages in a customer’s passport, to which foreign countries’ visas may then be affixed, at no charge. The CoSS found that the cost of the pages themselves, of having the pages placed in the book in a secure manner by trained personnel, and of completing the required security checks results in a cost to the U.S. Government of $82.48 based on a projected FY10 workload of 218,000. Therefore, the Department will charge $82 for this service.”
For those American Citizens who have a child overseas a Consular Report of Birth Abroad (CRBA) is necessary in order to ultimately obtain a US passport for the child. That being said, the fee for a CRBA would be increased under the newly proposed rule:
“Application for Consular Report of Birth Abroad of a Citizen of the United States
The CoSS found that the cost of accepting and processing an application for a Consular Report of Birth Abroad of a Citizen of the United States is $197.28 based on an FY10 workload projection of 80,000 applications. The Department has decided to raise the fee from $65 to $100, still significantly less than cost, based on its view that too high a fee might deter U.S. citizen parents from properly documenting the citizenship of their children at birth, a development the Department feels would be detrimental to national interests.”
The Immigrant visa fees associated with the processing of Immigrant family based visa applications (such as IR-1 visas and CR-1 visas) are to be decreased pursuant to the proposed rule:
“Immigrant Visa Application Processing Fee
The Department is changing the fee for processing an immigrant visa from $355 for all immigrant visas, to a four-tiered fee based on CoSS estimates for each discrete category of immigrant visa, as applications for certain applications cost more to process than others. Accordingly, the application fee for a family-based (immediate relative and preference) visa (processed on the basis of an I-130, I-600 or I-800 petition) will be $330.”
This being said, employment based application fees are to rise dramatically. Immigrant visa fees should not be confused with non-immigrant dual intent visa fees (such as those payable for the obtainment of a K1 visa or a K3 Visa) which are expected to rise in the future. Finally, an often overlooked service of the American Citizen Services section of a US Embassy or a US Consulate involves document notarization and legalization:
“Providing Documentary Services
The CoSS found the cost to the U.S. Government of providing documentary services overseas is $76.36 per service based on a projected FY 2010 workload of 380,000 services. These are primarily notarial services, certification of true copies, provision of documents, and authentications. However, the Department is raising these fees only from $30 to $50, lower than cost, in order to minimize the impact on the public.”
The above changes in the fee structure for Consular services will hopefully result in increased funds which will provide Americans with better services when they need important documentation.
12th FEB 2010
Recently Promulgated USCIS Memos Receiving Criticism
Posted by : admin
For those who have gone through the United States Immigration process or those who are thinking of doing so, the acronym USCIS will become familiar if it is not already. USCIS stands for the United States Citizenship and Immigration Service. This organization adjudicates many Immigrant visa petitions before they are sent to the the Department of State. In many ways USCIS carries out their duties in an effective and efficient manner. However, there are some situations in which some individuals feel that USCIS oversteps their authority.
In a recent blog posting, the past president of the American Immigration Lawyers Association wrote about the issues surrounding USCIS and dereliction of what some perceive as the proper interpretation of Federal law:
“[T]wice in the last two months the USCIS has issued “memos” that so dramatically change the framework under which these key programs operate, that it has clearly violated the APA [Administrative Procedure Act].”
The posting went into further detail below:
“USCIS has taken ignoring Federal Law to a new level with its recent actions. Of course we all know that the USCIS has been illegally changing the rules as they apply to individual cases for the last several years by engaging in “rulemaking by RFE;” making ridiculous requests for evidence, not based on any legal requirement, but rather, based upon someone’s bizarre notion of what they think the law should be, not what it really is. Now, however, with the two newest “Neufeld Memos” the USCIS has simply gone too far…The Neufeld memo on the EB-5 program, essentially makes that job creation program unworkable, and the Neufeld Memo on the H-1B program, literally changes decades of established policy on the most important visa allowing U.S. companies to hire foreign nationals.”
With regard to the employment visa issues noted above, the details of the memos in question have yet to be resolved. However, based upon anecdotal evidence from some practitioners, there does appear to be something of a rise in the number of Requests for Evidence (RFE) being promulgated by USCIS. This author can neither confirm nor deny that RFEs are on the rise, but it leads to the issue of RFE avoidance. Particularly in family visa cases, such as petitions for a K1 visa or a K3 Visa, a couple must be separated during the US visa process. Therefore, if an RFE is avoided it could mean that the couple will be reunited more quickly. As a result, proper petition preparation is necessary in order to have a better chance of forestalling an RFE.
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