blog-hdr.gif

Integrity Legal

Archive for the ‘Adjustment of Status’ Category

22nd October 2009

There is something of an “alphabet soup,” when it comes to discussing United States Immigration. There are many agencies under the jurisdiction of the United States Department of Homeland Security (DHS), the most important from an Immigration standpoint are: the Immigration and Customs Enforcement (ICE) agency, Customs and Border Protection (CBP), and the United States Citizenship and Immigration Service. Meanwhile, the United States Department of State (DOS) has jurisdiction over the National Visa Center (NVC) as well as United States Embassies and Consulates outside of the USA. This mix of acronyms alone can cause a sane man to go crazy, add on top of this the fact that sometimes different phases of the Immigration process have the SAME acronym and one is left very befuddled.

For example, the process of converting a K1 visa to permanent residence (Green Card) is called Adjustment of Status. when a Thai fiancee travels to the United States on a K1 visa she has 90 days to execute a legal marriage and submit an application to regularize her status. As stated previously, this is commonly referred to as adjustment of status.  It is possible to adjust other non-immigrant visas, such as J1 visas, F1 visas, or B2 visas, but it can be more difficult and one should not travel to the US using one of these visas with the intent to adjust as these categories do not allow for dual intent. One should not confuse the adjustment of status process with the change of status process, which is the process of converting a visa from one non-immigrant visa category to another.

Another “AOS” commonly used in United States Immigration vernacular is the Affidavit of Support. The affidavit of support is the document showing that a United States Citizen or Lawful Permanent Resident can financially maintain a foreign fiancee or spouse in the United States. The worry of government officials is that the foreign loved one may become a “public charge,” the affidvait of support is used to illustrate that this will not be an issue. An affidavit of support is signed by a K1 visa petitioner and submitted at the visa interview at the United States Embassy. At the time of the adjustment of status a different affidavit of support is submitted. K1 visa applications also utilize a different affidavit of support compared to visa petitions for a foreign spouse (K3 visa, Cr1 visa, Ir1 visa).

more Comments: 04

10th October 2009

On this blog, we commonly make reference to Notice of Action 1 or NOA 1. In an effort to provide the most high quality repository of United States Immigration definitions for those seeking a US Visa from Thailand providing a brief overview of this official Immigration notice is required.

In many United States Immigration matters, particularly family Immigration cases from Thailand, the visa application must first receive approval from the United States Citizenship and Immigration Service (USCIS). This agency is one of many that reports to the Secretary of the United States Department of Homeland Security (DHS).

When a couple opts to apply for a United States visa, they often apply for one of the following categories: CR1 visa, IR1 visa, K3 visa, or K1 visa. The CR1, IR1, and K3 are all United States Marriage visas while the K1 visa is a fiancee visa. All of these visas require USCIS pre-approval before a visa interview can be set. Conversely the B1 visa, B2 visa, F1 visa, and J1 visa are all non-immigrant visa categories (that do not permit dual intent) and therefore do not require USCIS pre-approval. It should be noted that the non-immigrant visa categories are much more difficult to acquire for loved ones of United States citizens due to a provision in the United States Immigration and Nationality Act called 214b. This provision creates a legal presumption that must be overcome by the foreign applicant before the visa will be issued.

When a United States Citizen files for a K1, K3, CR1, or IR1 visa they first file an application at a USCIS Service Center. There are two USCIS Service Centers that accept applications for the aforementioned visa categories and the petitioner’s residence will determine where the application should be filed. The petitioner will send in the application and upon receipt, the USCIS Service Center will generate a receipt referred to as Notice of Action 1 (or NOA1). This receipt will note the names of the Petitioner and Beneficiary as well as the date of receipt and the date the notice was generated. The receipt will also show a case number.

For those who retain the services of a US visa lawyer, a copy of Notice of Action 1 will be sent to the attorney provided the attorney submitted a G28 form with the application. Before retaining an attorney it is wise to make certain that a G28 form will be submitted because it is important to facilitating efficient visa processing. Fake lawyers and so-called visa agencies cannot represent clients before USCIS so it may be wise to inquire as to the credentials of any proposed representative. Unfortunately, in the Kingdom of Thailand, there are many unauthorized services masquerading as licensed US Immigration attorneys.

The Notice of Action 1 should not be confused with the initial letter sent from the US Embassy Thailand. This letter is commonly referred to a Packet 3 and is sent at a later phase of the US Immigration process.

more Comments: 04

4th October 2009

A happily uncommon issue that can arise in United States Immigration law is known as the “widows penalty.” The Widow’s penalty becomes an issue when the American Citizen Petitioner dies before the adjudication of a foreign spouse’s pending Immigration matter. For example, a widow of a United States Citizen could be penalized if her American spouse dies before the I-751 Petition to Remove the Conditions of Residence is adjudicated (also known as a “lift of conditions”). The logic underpinning the penalty is based upon the notion that the widow is no longer married to a United States Citizen and therefore cannot have conditions removed because the continuing marriage is the basis for removal of conditions. Currently, the United States courts are in the process of dealing with this issue and it would appear that there is an overwhelming feeling that the “widow’s penalty,” should be removed because it is somewhat inequitable.

In the recent case of Hanford v. Napolitano, a Texas Court held that the Widow of an American Citizen will be entitled to adjust status to permanent residence even if the American dies before adjudication provided the couple was lawfully married and there are no issues as to the bona fides of the relationship. To quote the court opinion:

“Under the plain language of the statute, Congress’s intent is clear: The Attorney General is precluded from adjusting the status of a non-immigrant except as a result of the marriage of the nonimmigrant to the very U.S. citizen who filed the petition in the first place to grant that alien’s nonimmigrant status. Situations such as Ms. Hanford’s meet the exemption. Plaintiff is entitled to adjustment of her legal status to that of permanent resident under the language of the statute because her legally filed application is a result of her marriage to the U.S. citizen who filed Form I-129F to obtain her nonimmigrant status.”

The Widow’s Penalty would seem to be falling by the wayside, but the law is not completely settled on the issue as some courts have differing rules regarding the adjudication of such cases. For those with a great deal of anxiety about their spouse’s ability to obtain an adjustment of status in the future, researching immigrant and non-immigrant visas may provide insight into the consequences of a US Citizen’s untimely death.  One major benefit of the Immigrant visa categories such as the IR1 visa and the CR1 visa is the fact that the foreign spouse enters the United States with lawful permanent residence upon entry. However, the processing time for these visas is considerably longer when compared with the K3 visa or the K1 visa.

Issues like this fully emphasize the reason why it may be imperative for an American to obtain licensed legal counsel for issues involving US visas. For more information about the importance of retaining licensed legal counsel, please see: How Can My Thai Fiancee Get US Citizenship?

more Comments: 04

4th October 2009

For those who have already executed a marriage in Thailand, the options for United States visas can become more limited. In general, the two Immigration options most applicant couples choose to pursue immediately following lawful marriage are the K3 visa and the CR1 visa. Unless there exist strategic reasons for applying for the K3 visa (speed of issuance, or choice of interview forum), the CR1 visa is often the better choice as it confers conditional lawful permanent residence upon the applicant at the moment they are admitted into the United States of America.

The CR1 visa is available to those couples who have been married for less than two years. IR1 visas are used by couples who have been married more than 2 years. In Thailand, a common misconception is that getting married is the best way to ensure a fast visa for a Thai loved one. In many cases, this is untrue because the K1 visa is sometimes a faster Immigration option. That being said, in cases where the United States Citizen is entitled to file an I-130 application abroad (known as a local filing or direct consular filing) marriage might provide a way of expediting the US visa process. If a US Citizen opts to file locally for a US visa and the couple has been married for less than 2 years, then a CR1 visa will be issued upon application approval.

Once in the United States, the foreign spouse will eventually need to apply for a lift of the conditions of his or her visa. This is accomplished by filing an I-751 Petition to Remove the Conditions of Residence. The United States Citizen spouse will need to file the petition within ninety days of the second anniversary of the foreign spouse’s entrance into the US and once the application is approved the foreign spouse’s lawful permanent residence will no longer be contingent upon their continuing marital status.

Essentially, this application to lift conditions is somewhat similar to the adjustment of status application. For those with a fiance visa it is necessary to adjust status to permanent residence before being able to remain in the US indefinitely. The lift of conditions is analogous because it is a necessity that must be dealt with before permanent residence is unconditional and failure to apply for the lift of conditions could result in the foreign spouse falling out of lawful status. It should be noted that for those who adjust status from a K1 visa, permanent residence is deemed to begin on the date noted upon the adjustment of status approval notice. Within ninety days prior to the two year anniversary of said date, the foreign spouse must apply to Remove the Conditions of Residence.

Upon approval of an application to remove conditions, the former CR1 visa holder will be converted to an IR1 visa and be issued a 10 Permanent Resident Card (Green Card).

more Comments: 04

28th September 2009

United States Immigration law offers many long term benefits for the spouses and fiancees of American Citizens. One of the many questions posed by those American’s researching US Immigration from Thailand is: how does my Thai fiancee acquire United States Citizenship?

There are many misconceptions about who can naturalize as a US citizen and under what circumstances. As a rule, naturalization to US citizenship takes approximately five years, if the applicant is already in lawful permanent resident status. However, for the husband or wife of a United States Citizen, the amount of time necessary to naturalize is greatly reduced. In order for the spouse of an American citizen to naturalize, the spouse must have been in lawful permanent residence for 3 years prior to the application for naturalization. Further, the husband or wife who meets this criterion must also have been physically present in the United States for an aggregate of 18 months prior to application. For United States Immigration and naturalization purposes, half-days in the US are counted as full days when determining physical presence in the United States of America.

For those bringing a Thai fiancee into the United States on a K1 visa, the clock does not begin ticking toward naturalization until the Thai applicant successfully is approved for adjustment of status. The date noted on the adjustment of status approval is the date from which one can begin accruing presence toward ultimate naturalization. In the case of the K3 visa, even though it is a marriage visa, time in the USA does not accrue towards Citizenship until after approval of an adjustment of status application or the applicant returns to the US Embassy for processing of the underlying IR1 or CR1 visa application.

It should be noted, much like the lift of conditionality, one can, and perhaps ought to, file for naturalization ninety days before the applicant hits the three year mark for time in the US in lawful permanent residence.

There are some exceptions to the 3 years plus 18 months aggregate presence requirement. Most notable is the fact that in certain situations, a permanent resident can acquire citizenship after only one year in lawful permanent resident status if they are accompanying a United States Citizen abroad in order to work in a job related to the United States Military, Government, or other government related endeavor.

If a couple makes plans ahead of time, it may be possible for a Thai fiancee or spouse to acquire United States Citizenship in an efficient and timely manner. That being said, for those seeking US Citizenship, the road can be difficult as naturalization requires a great deal of time and effort on the part of the foreign applicant as well as an investment of resources on the part of the US Citizen spouse.

more Comments: 04

24th September 2009

The question asked by many American Citizens in the United States or Expats in Thailand with a Thai Girlfriend: How do I obtain a Green Card for My Thai Fiancee? Before answering this question, the researcher needs to discern exactly what a Green Card is.

The Document commonly referred to as a “Green Card,” is in fact a term used to describe Lawful Permanent Residence in the USA. In family visa applications, there are essentially two ways of obtaining lawful permanent resident status: applying for an Immigrant visa and obtaining said status upon entry into the United States; or applying for a K1 visa, entering the United States, and applying for permanent residence through the process of adjustment of status. There are two types of lawful permanent residence: conditional lawful permanent residence and unconditional lawful permanent residence. Conditional permanent residence is reserved for those couples who either opt to adjust status in the United States or who have been married less than 2 years at the time they apply for a visa. Conditional permanent residence is conferred upon the entrant who travels to the United States on a CR1 visa. Unconditional permanent residence is conferred upon an entrant to the United States traveling on an IR1 visa.

If seeking an immigrant visa for a Thai fiancee, then the American Citizen will need to marry the Thai national before the application’s submission. In Thailand, marriage registration can be a very straightforward process provided both parties are legally free to marry. A common question with regard to Thai marriage registration: will the US recognize my Thai marriage to my thai fiancee? In short: yes. The United States recognizes the legality and binding effect of a legally sanctified matrimonial union executed in the Kingdom of Thailand provided that it is registered at the local Amphur office.

What about bringing my Thai fiancee to the United States on a K1 visa? This is an option pursued by many Thai-American couples as it is generally the fastest method of getting a Thai fiancee into the United States. The only real downside of the K1 visa is the fact that it requires a post-marital adjustment of status.

Where the fiancee enters and adjusts or marries abroad and enters on an Immigrant visa, if she decides to travel abroad subsequent to acquiring permanent resident status, then she may be wise in obtaining a reentry permit so that a presumption of residential abandonment does not arise. Those who have acquired a US reentry permit are free to remain abroad for up to 2 years without raising the suspicion that they are not ever returing to the United States.

more Comments: 04

18th September 2009

In a recent report published by the Immigration Policy Center, the issues surrounding United States Immigration and its demographic impact were discussed. To quote an email sent out by the Center, the demographics of Immigrant’s in the United States is somewhat surprising:

“Roughly one-in-seventeen U.S. citizens are foreign-born, and tens of millions of native-born U.S. citizens have immigrant parents. This demographic reality has important political ramifications. A rising share of the U.S. electorate has a direct personal connection to the immigrant experience, and is unlikely to be favorably swayed by politicians who employ anti-immigrant rhetoric to mobilize supporters.”

The fact is: were it not for the influx of immigrants to the United States, the “birth dearth” being experienced in other western countries would be highly prevalent in the United States of America. Immigrants add a great deal to the American economy as well as the societal structure as they compensate for the aging American population. Systems such as social security and Medicare would be in far greater peril were there to be no influx of foreign immigrants traveling to America on a USA visa in order to live and work.

In the same email, there were some compelling statistics regarding immigrant populations in the United States:

“There were 38.1 million immigrants living in the United States as of 2007, of whom 42.5% were naturalized U.S. citizens.

The number of naturalized U.S. citizens increased from 8 million in 1990, to 12.5 million in 2000, to 16.2 million in 2007.

There were 45.5 million Latinos in the United States in 2007, of whom 11.2% were naturalized U.S. citizens and 60.2% were native-born U.S. citizens.

There were 13.3 million Asians living in the United States as of 2007, of whom 37.7 % were naturalized U.S. citizens and 31.8% were native-born U.S. citizens.”

Of particular interest for this author is the final statistic regarding people of Asian descent. As a law firm in Bangkok that primarily handles United States Immigration for Thai fiancees and spouses of US Citizens, this statistic truly hit home. The K1 visa, the K3 visa, and the CR1 visa applications are processed at the US Embassy in Bangkok, Thailand. We see many happy couples using the American Immigration system in order to reunite with their US Citizen loved ones. Many of these immigrants proceed to adjust their status and remain with their American loved one long term. Some proceed further and complete the naturalization process. In many cases, children are born from these happy unions. In all, America is fueled by Immigration as it is a nation of immigrants. As time passes hopefully the American government will keep this in mind when creating new legislation which impacts the Immigration process.

more Comments: 04

17th September 2009

Congress is set to end their recess soon and one of the important issues that will be on the legislative agenda is Comprehensive Immigration Reform. In the last Congressional session, this important legislation was sidelined by other important issues such as Health Care Reform and issues the impact of Americans upon the environment. To quote Immigration Impact: Comprehensive Immigration Reform (CIR), “has grown increasingly complex, partisan, and ideological, the chances of completing CIR legislation before 2009 ends further diminish. That’s not to say, however, that nothing is happening.”

One of the major obstacles in getting a Comprehensive Immigration Reform bill through Congress is the fact that it is, well…so…Comprehensive. What I mean to say is: Comprehensive Immigration Reform would require a complete overhaul of the Immigration system which impacts many political factions and such an overhaul is bound to have detractors and proponents of each facet effected.

For example, in the realm of United States Family immigration, there are some who believe that the minimum 6 to 7 month wait to bring a foreign fiancee or spouse to the United States is far too much time to wait. One proposed solution to this problem is: allowing non-immigrant dual intent family visa to be filed directly at the Embassy or Consulate overseas. The K1 visa and the K3 visa are dual intent non-immigrant visas which means that the visa holder can intend to both go to the US temporarily and simultaneously have the intent to remain long term.  Those entering the United States on one of these visas will eventually need to adjust status to permanent residence. At that time, the officers at the United States Citizenship and Immigration Service will adjudicate whether or not the applicant should be accorded lawful permanent resident status. The current Immigration situation begs the question: how does pre-authorizing K1 and K3 non-immigrants add value to the US Immigration Process? The system, at the very least, seems redundant.

A likely result of Comprehensive Immigration Reform will be a large backlog of cases involving undocumented aliens in the United States of America. The current resources used to pre-authorize K1 and K3 visas could be rediverted to adjudicating cases of undocumented aliens while those seeking K1 and K3 visas could begin filing directly with the United States Consular posts abroad. The argument that preapproval is necessary for Immigrant visas (such as the IR1 and CR1 visa) rings a bit more true since those entering the United States on this visa receive permanent residence upon entry.

more Comments: 04

14th September 2009

In a previous blog posting we discussed the K2 child visa which is a derivative visa of the K1 fiance visa. The K2 visa is intended for the unmarried minor children of K1 visa applicants. Both visas have an initial validity of 90 days, but if the K1 visa holder adjusts status, then the K2 visa holder can “piggyback” their application for adjustment onto that of their parent and obtain permanent residence as both a derivative and a step-child.

K3 visas operate in a similar manner as the K1 visa. K3 visas are non-immigrant visas that allow for dual intent. This means that the entrant can have non-immigrant as well immigrant intent at the time of entry in the United States of America. For those with children, the K4 visa is one way of bringing a K3 visa holder’s unmarried minor children to the United States. Like the K2 visa, the K4 visa mirrors the benefits of its parent category. Therefore, if a K3 visa is issued with a validity of 2 years (which has become the common practice), then the K4 will likely be issued with the same validity period. The K4 visa is also a multiple entry visa just like the K3.

The K3 visa category was created at a time when it was taking nearly three years to process regular I-130 visa applications for foreign spouses. It was created with the idea of providing an expedited non-immigrant visa alternative so that bi-national families could be reunited quickly. As the processing time for the I-130 has decreased, so too has the need for the K3.

For those who travel to the United States on a K3 or K4 visa, eventually the issue of adjustment of status will arise. As the K3 and K4 are non-immigrant visas, the holders must apply for a “green card” before being allowed to remain in the USA. K4 beneficiaries can “piggyback” their application for adjustment on their K3 parent’s application.

As stated previously, for most people the K3 visa, and therefore its K4 counterpart, is generally not the most optimum visa because it takes longer to process when compared to the K1 and it does not confer Permanent Residence as the CR1 or IR1 visa does. However, the K3 has its strategic benefits because it can allow the couple the opportunity to have more control over their case’s adjudication, because the statute specifies that the interview forum is based upon the location of the underlying marriage.

more Comments: 04

13th September 2009

An extremely common topic on this blogs involves the US K1 visa. The K1 visa is designed for fiances of American Citizens. This visa allows the foreign fiancee to travel to the United States of America for the express purpose of getting married and adjusting status to lawful  permanent resident. It is a “dual intent” visa meaning that it is non-immigrant, and therefore temporary, but converting to an Immigrant visa is statutorily allowed and in a way somewhat encouraged as K1 visa holders who leave the United States cannot reenter on the same K1 without first obtaining permission to do so, this permission is known as advance parole.

With this in mind, there is another visa related to the K1 fiance visa. This visa is referred to as the K2 visa. A K2 visa is designed for the children of the holder of a K1 visa. It is a “derivative visa,” in that the benefits conferred in the K2 visa are entirely dependent upon the K1 visa holder’s status. For example, if a Thai fiancee has a child and they are each applying for a K1 visa and K2 visa respectively, then if the K1 visa application is denied the K2 application will be summarily denied as well.

The K2 visa is also derivative in that it “piggy backs” on the K1 visa during the adjustment of status process. This means that if the K1 visa holder and the K2 visa holder enter the United States together, then they ought to adjust their status at the same time as the process is likely to be more streamlined.

Those holding a United States K2 visa must abide by the same conditions as one holding a K1 visa. The K2 visa is non-immigrant, but the dual intent doctrine applies (this allows for the visa holder to intend to adjust status upon entry). Further, the K2 is also a single entry visa, so the K2 holder would also need to obtain advance parole before leaving the United States. The derivative nature of the K2 creates a difficult situation if the K1 holder leaves the United States without obtaining advance parole. In this situation, the K2 holder would fall out of status the moment the K1 holder leaves and falls out of status. That being said, unlawful presence generally does not accrue against minor children so the child in the US unlawfully would likely not be barred from later reentering based upon a legal grounds of inadmissibility due to an overstay.

It should also be noted that the K2 beneficiary will need to accompany their parent to the K1 visa interview at the US Embassy in Bangkok. In all likelihood, the Consular officer will not wish to speak with the child, but they will want to physically see them.

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.