Integrity Legal

Posts Tagged ‘Visa Process’

26th November 2010

Recently, this blogger was reading a report from the Department of State regarding the statistics pertaining to the United States Visa Process. To quote the report directly:

Immigrant visa issuances during fiscal year 2011 are limited by the terms of INA 201 to no more than 226,000 in the family-sponsored preferences and 140,000 in the employment-based preferences. (Visas for “Immediate Relatives” – i.e., spouses, unmarried children under the age of 21 years, and parents – of U.S. citizens are not subject to numerical limitation, however.) It should by no means be assumed that once an applicant is registered, the case is then continually included in the waiting list totals unless and until a visa is issued. The consular procedures mandate a regular culling of visa cases to remove from the count those unlikely to see further action, so that totals are not unreasonably inflated. If, for example, a consular post receives no response within one year from an applicant to whom the visa application instruction letter (i.e., the consular “Packet 3″ letter) is sent when the movement of the visa availability cutoff date indicates a visa may become available within a reasonable time frame, the case is considered “inactive” under the consular procedures and is no longer included in waiting list totals.

It has be routinely noted on this blog and elsewhere online that the American visa process is somewhat restrictive when it comes to non-immediate relative petitions as there are limited numbers of visas available to the immediate family of American lawful permanent residents and the non-immediate relatives of American Citizens. That said, this was not the portion of the above citation that this author felt was noteworthy. Instead, a central issue for this blogger is that of “culling visa cases”. For those who do not have a great deal of experience dealing with US Immigration matters it may seem rather heavy handed to simply cancel a visa file. However, it should be pointed out that a US Embassy or US Consulate abroad is responsible for reviewing, adjudicating, and processing a large number of visa applications each year. Therefore, in the name of organization and efficiency it is often necessary for cases to be removed from the processing queue lest the whole system become overloaded and inefficient.

Those wishing to obtain a visa to the USA should be cognizant of the fact that failure to follow up with the US Mission with Consular jurisdiction could result in the canceling of one’s visa application thereby resulting in an end to the entire proceeding. This is also true for those who receive a 221g denial as failure to respond within one year of the denial’s issuance could result in the culling of the case file.

Some find that the assistance of an American Immigration attorney can be highly beneficial as such an individual can provide insight into and assistance with the United States visa process. Furthermore, American attorneys working overseas can provide real time assistance with Consular processing at American Missions abroad.

For related information please see: Consular Processing.

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1st May 2010

On this blog, we try to provide up to date information regarding the processing time estimates of certain family based, and in limited instances non-family based, United States Immigration Petitions.

Below are the current processing time estimates from the USCIS Service Center in California as of February 28, 2010:

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 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 July 09, 2005
I-130 Petition for Alien Relative U.S. citizen filing for a married son or daughter over 21 May 24, 2002
I-130 Petition for Alien Relative U.S. citizen filing for a brother or sister March 02, 2001
I-130 Petition for Alien Relative Permanent resident filling for a spouse or child under 21 June 02, 2007
I-130 Petition for Alien Relative Permanent resident filling for an unmarried son or daughter over 21 March 02, 2003
I-131 Application for Travel Document All other applicants for advance parole 3 Months
I-129 Petition for A Nonimmigrant Worker E – Treaty traders and investors 2 Months
I-129 Petition for A Nonimmigrant Worker L – Intracompany transfers 1 Month

The following are processing time estimates for the USCIS Vermont Service Center as of February 28, 2010:

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 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 February 13, 2009
I-130 Petition for Alien Relative U.S. citizen filing for a married son or daughter over 21 January 23, 2009
I-130 Petition for Alien Relative U.S. citizen filing for a brother or sister January 16, 2009
I-130 Petition for Alien Relative Permanent resident filling for a spouse or child under 21 November 05, 2008
I-130 Petition for Alien Relative Permanent resident filling for an unmarried son or daughter over 21 February 27, 2009
I-131 Application for Travel Document All other applicants for advance parole 3 Months
I-129 Petition for A Nonimmigrant Worker L – Intracompany transfers 1 Month

These estimates should not be viewed as accurate for each individual case as each case is unique and some cases take more time to process through the United States Citizenship and Immigration Service (USCIS) and others may take considerably little time to process through the Service Center. In any case, the assistance of a US Visa Lawyer can be helpful to clients as an authorized representative is entitled to correspond with USCIS on behalf of clients and can thereby streamline the overall visa process.

It should be noted that these estimates do not include the time that it takes to get the case processed through a US Embassy or US Consulate overseas. For those processing a Thai case, it usually takes about 6-8 weeks to process through the US Embassy Thailand.

For further information please see: Fiance Visa Thailand.

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30th April 2010

Repeatedly, this author uses this blog as a platform to try to educate the public regarding the US visa process and the problems that can arise during that process. In many cases, people are simply unaware of the rules regarding US visa issuance and this blog attempts to provide relevant information that readers may find beneficial. That being said, another frequently discussed topic is the unauthorized practice of law by “visa companies” and “visa agents” or those claiming to be American attorneys. This is not simply a tirade against such practices, but is intended to provide information regarding the detrimental impact that these individuals can have upon the interests of their “clients”.

Under section 292.1 of the United States Code of Federal Regulations a licensed attorney is entitled to represent clients before the United States Department of Homeland Security, specifically the United States Citizenship and Immigration Service (USCIS) which is tasked with adjudicating US visa petitions. Many are unaware of the fact that those who assist individuals in preparing visa petitions are engaging in the unauthorized practice of law if they are not: licensed to practice law in at least one US jurisdiction while being eligible to practice law in all US jurisdictions or certified by the Board of Immigration Appeals (BIA).

Licensure is no small matter, especially for those individuals who are “represented” by those claiming to be attorneys who are not, in fact, licensed. For example, if an American talks to an unlicensed individual about sensitive matters, then such communications would not be confidential and also would not be protected under the attorney/client privilege. If one is communicating in confidence to a licensed attorney, then such communication is “out of bounds” for US Courts. However, the same communications with one who is unlicensed could be used as evidence in a US court proceeding. Therefore, licensure is extremely important particularly in US Immigration matters involving a legal ground of inadmissibility or an I-601 waiver as certain information could be very detrimental to clients’ interests and if imparted to a licensed American attorney would be confidential, but if imparted to an unlicensed “fly by night” operator such information could be used against the client at a later date.

For all of these reasons, when an American is outside of the USA it is always prudent to check the credentials of anyone claiming to be an attorney from the United States. An individual can provide adequate credentials if they can show their license to practice law before at least on State Supreme Court in the US, or a Federal license to practice law in the USA, or a license to practice law in one of the US territorial jurisdictions (Guam, Puerto Rico, the US Virgin Islands, etc). Anyone who refuses to provide any such credentials and yet still asserts that they are an American attorney should be avoided until proof of credentials can be provided.

For further information about US Immigration from Thailand please see: K1 Visa Thailand.

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8th April 2010

This author has repeatedly discussed the problems arising from the unauthorized practice of law as so called “visa agents” and “visa companies” as well as those masquerading as legitimate attorneys can cause many problems for bi-national couples. With this in mind, we will briefly discuss the proliferation of “Do It Yourself” Kits and the American Visa Process.

Throughout the internet, it is becoming increasingly easy to find those touting “Kits” to provide guidance to those who are processing their own visa petition and application. First, it should be noted that this author is not concerned by those who opt to process their own US visa petition or US visa application. In fact, the right to unilaterally petition one’s government for benefits is something that should be preserved at all costs. However, some opt to seek counsel in processing their US visa application. In these cases, the use of a “kit” could prove more detrimental than beneficial. For example: most so-called “kits” simply provide information that is already freely available. In many cases, individuals find that when their “kit” arrives it contains information that could easily have been found on either the United States Citizenship and Immigration Service (USCIS) website or the website of the Department of State. In some cases, information found in these “kits” can prove to be less than useful as some have found that information contained in a “visa kit” is out of date.

United States Immigration law encompasses rules and regulations promulgated by multiple government agencies as well as local law in foreign jurisdictions and the local Embassy or Consulate procedures in nearly every country on the planet. It is extremely difficult to imagine a “kit” that could provide guidance for all possible scenarios that could arise throughout the process of obtaining a visa for a foreign loved one.

A case in point, only recently was it announced that the K3 Visa application would be administratively closed. It is hard to imagine that one who purchased a kit right before this change was announced would have up-to-date information regarding the processing of a US marriage visa. This is just one example of how “Kits” cannot be used as effectively as competent legal advice from a professional.

Many “kit” retailers provide a 100% Guarantee or some other form of guarantee. As has been repeated many times on this blog, no ethical individual, attorney or otherwise, can guarantee the outcome of any case pending before USCIS, the National Visa Center, or a US Embassy abroad. Those thinking about purchasing a “Kit” may be wise to simply save their money.

For related information please see: K1 visa.

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12th February 2010

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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