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Integrity Legal

Archive for the ‘K-3 Visa Thailand’ Category

6th September 2009

Being denied for a visa to the United States of America is certainly not something that people researching the immigration process wish to think about. However, visa denials do occur and by understanding the reasons for denial it may allow prospective immigrants to make more informed decisions regarding their immigration strategy.

When it comes to American Family Immigration a common miscalculation involves applying for a US Tourist Visa on behalf of a foreign loved one. For example, if an American Citizen has a Thai fiancee and he attempts to assist in obtaining a US Tourist Visa for her, it will very likely result in a denial of the visa application. This is not due to some sort of malevolent feeling on the part of the United States Consular Officers, but it is rooted in American Immigration law.

It is probably best to simple quote the US Department of State website:

“Section 214(b) is part of the Immigration and Nationality Act (INA). It states:

‘Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status…’

To qualify for a visitor or student visa, an applicant must meet the requirements of sections 101(a)(15)(B) or (F) of the INA respectively. Failure to do so will result in a refusal of a visa under INA 214(b). The most frequent basis for such a refusal concerns the requirement that the prospective visitor or student possess a residence abroad he/she has no intention of abandoning. Applicants prove the existence of such residence by demonstrating that they have ties abroad that would compel them to leave the U.S. at the end of the temporary stay. The law places this burden of proof on the applicant.”

Overcoming the presumption of immigrant intent has always been a somewhat major obstacle, but visa denials under this section of the law became more prevalent after the tragedy of September 11, 2001. After 9/11, there were some changes made in the way that non-immigrant visas were processed. A particularly critical change was the requirement that the applicant for a United States tourist visa be interviewed in person. This requirement, combined with increased scrutiny and heightened security concerns lead to more Tourist visa denials. In many cases, the denials were based upon section 214 (b) because the applicants failed to show that they were going to return to their home country, or, at the very least, leave the USA.

Where the foreign applicant is a loved one of a US Citizen, particularly where the Citizen primarily resides in the USA, it is unlikely that the tourist visa application will be approved unless that applicant can show sufficiently “strong ties,” to their home country. However, to forestall needlessly wasting of time and resources, it may be wise for a couple to look into the prospect of submitting a K1 visa application or seek to obtain a K3 visa. The K1 visa is a travel document which allows a temporary stay in the United States, but leaves room under the Doctrine of Dual Intent to allow for the visa holder to adjust status to US permanent residence.

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6th September 2009

For those entering the United States of America on a non-immigrant visa, there is generally a requirement that the entrant have non-immigrant intent. This means that the person entering the country must intend to simply remain on a temporary basis and not have the intention to reside in the United States permanently. United States Visas that require non-immigrant intent include the US Tourist Visa, the F1 Student Visa, and the J1 Exchange Visitor Visa. For each of these categories, the prospective entrant could be denied access to the United States either by visa denial or entry denial at the United States Embassy in Bangkok or the port of entry in the USA. Due to the risk of visa denial or entry denial, it is always recommended to apply for a visa that comports to the applicant’s true intentions.

Conversely, it may be unwise to apply for an immigrant visa if the parties true intentions do not actually involve residing in the United States. In this situation, the issue of intent is somewhat more fluid, but it is still advisable that the parties have a bona fide intention to reside in the USA.

With both of these issues in mind, there is something of a “middle path,” with regard to United States Immigration. This middle path is the doctrine of dual intent. This doctrine is a legal concept that deals with the fact that there are some cases where a US Visa must permit foreign nationals to be present temporarily in the United States of America in legal status and still have immigrant intent. The doctrine was promulgated due to practical necessity as there are situations in which aliens come to live and work in the USA on temporary visas, but they themselves wish to eventually obtain lawful permanent residence. United States Immigration authorities and experts have come to recognize that there are certain situations where this seemingly paradoxical situation must be accepted and, to a certain extent, encouraged.

An example of a commonly sought visa category in Thailand, is the K1 fiance visa. The K1 is a non-immigrant visa, but the alien entering the US on this visa is generally doing so in order to: reunite with their fiance(e), marry, and adjust status to permanent residence.  Therefore, the K1 visa is essentially a dual intent visa as it only allows for a 30 day temporary stay, but provides the opportunity to acquire US permanent residence.

To some extent, the K3 visa is a dual intent travel document as it is technically a non-immigrant visa, but once in the United States, the visa holder must eventually adjust status as the K3 does not confer lawful permanent residence. Usage of the K3 has declined in recent years as visa processing times have decreased for immigrant visas and increased slightly for K3 visas.

L1 visas as well as H1-B work visas are further examples of temporary visas which allow for dual intent. Although, these categories are employment based visas.

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5th September 2009

This blog has often compared and contrasted the difference between the Immigration procedures for obtainment of a US Visa and a Thai Visa. To further compare the two systems, this post will provide a brief overview of the financial requirements one must meet in order to obtain a visa to Thailand or the United States of America.

In order to sponsor a traveler to the United States, one must first decipher the type of visa the traveler will be using. In the case of Non-Immigrant visas (F1 student visa, J1 exchange visa, or B1 Business Visa) the applicant must be able to prove that they or their sponsor will be able to pay the expenses related to the trip. In the case of F1 and J1 visas, the applicant must show that they will also fully pay for their educational endeavors or their exchange program. In some cases, the J1 visitor must reimburse the public education system where they stay in order to obtain the J1 visa.

In the case of United States Immigrant IR1 and CR1 visas for family members from Thailand, the American Citizen must show that they meet the income or financial requirements in order to act as sponsor for their loved one. The basic concern of the Consular officer revolves around the notion that the Immigrant could become a “public charge,” if the American Citizen does not have the resources to pay for the foreign spouse. An I-864 affidavit of support is used to assist in determining if the American is capable of sponsorship.

The K1 visa is a combination of the non-immigrant and immigrant visas. That being said, an affidavit of support must be filled out by the American Citizen. The difference between the I-134 and I-864 is the fact that the I-864 is more legally binding with regard to the sponsor. If the foreign entrant ever becomes a ward of the state, then the sponsor could be forced to reimburse the American government for the expenses the foreign national incurs. The K3 visa, although a marriage visa, is technically a non-immigrant visa so the American Citizen must simply submit an I-134 affidavit of support.

In Thailand, there are certain Thai visa categories which require that the applicant show that they have some sort of financial safety net. Visas such as the Thai retirement visa and the Thailand O visa (based upon marriage), require the visa holder to continually prove that they either meet a prescribed minimum monthly income or have a certain amount of money in a Thai bank account.

For those applying for Thai visas outside of Thailand, certain consulates have differing financial requirements depending upon the visa category. Therefore, one wishing to obtain a Thai Business Visa may be required to show a minimum bank balance. The minimum financial requirement may vary from post to post.

The United States Embassy in Thailand, diligently scrutinizes the financial resources of those applicants wishing to obtain an American visa. Many people believe that there is some sort of magic numerical amount of money that if shown in a bank account will guarantee visa application approval. In reality, the Embassy looks at the “whole picture” when making decisions on US tourist visas and often simply having a large bank balance is not enough to obtain a tourist visa. Further, in cases where an American boyfriend tranfers a large amount of money into a Thai applicant’s bank account in an effort to “beef up” the applicant’s credentials, the Embassy can tell that the bank balance is artificially inflated and will likely deny the application. It is never wise to manufacture evidence in order to obtain a United States visa on behalf of another.

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3rd September 2009

In a recent announcement from the United States Citizenship and Immigration Service (USCIS), Deferred Action will be granted to those widows and widowers of United States Citizens who die before the two year anniversary of the foreign spouse’s arrival in the United States of America. To quote the AILA press release:

“U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano, on June 9, 2009, announced that DHS would grant deferred action relief to surviving spouses of U.S. citizens who died before the second anniversary of their marriage. Based on the Secretary’s decision, U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend adjudication of visa petitions and adjustment applications filed for widow(er)s where the sole reason for an adverse decision from USCIS would be the death of a U.S. citizen spouse prior to the second anniversary of their marriage.”

The first question that probably comes to the mind of the reader is:  ok, so what does “deferred action” mean in practice? To further quote the USCIS press release:

“Deferred action is an exercise of prosecutorial discretion not to pursue removal from the United States of a particular foreigner for a specific period. Deferred action is not intended to be a permanent remedy for this situation; rather it is a temporary discretionary solution.”

In cases involving United States Immigrant visas, there are two types of immigrant visa categories for spouses of American Citizens. There is the Conditional Resident Visa (CR1) and the Immediate Relative Visa (IR1). The Conditional Resident Visa is meant for spouses of United States Citizens who have been married for less than two years. IR-1 visas are meant for those who have been married for more than 2 years. When a Permanent Resident is in CR-1 status, then they must apply for a lift of conditions before they change status to IR-1. If residence is conditional, then the immigrant must leave the USA  if the lift of conditionality is not filed and approved. In many cases, only the US Citizen spouse can file to have the conditions lifted. Therefore, if the US Citizen spouse dies before the lift of conditions is filed and approved then the Conditional Permanent Resident could fall out of status as soon as 2 years is up. Deferred action places the Resident in a kind of limbo in which they can lawfully remain in the USA, but are not moved in IR-1 status. The press release goes further and states:

“Aliens with deferred action may apply for an Employment Authorization Document (EAD) if they can establish an economic necessity for employment.”

Therefore, the alien in the US in this situation could work and reside without fear of being removed, but the situation would seem to be simply a temporary stopgap measure and it does not appear that this would be a viable long term legal option.

Bear in mind that this issue only deals with US spousal and fiancee visas after adjustment of status. Therefore, the above analysis is not relevant to the K1 visa or the K3 visa per se, although it would be relevant if the foreign fiancee or spouse adjusts to CR1 status.

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30th August 2009

The United States Department of Homeland Security recently announced rule changes that will effect those traveling to the United States of America. Under the new rules, clearer lines have been drawn with regard to searches of media devices belonging to those entering the USA. To quote an official press release from the US Department of Homeland Security:

“The new directives address the circumstances under which U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) can conduct border searches of electronic media—consistent with the Department’s Constitutional authority to search other sensitive non-electronic materials, such as briefcases, backpacks and notebooks, at U.S. borders.”

These new rules will have an important impact upon those Americans residing in Thailand who return to the United States of America on a regular basis. These rule changes are even more important for the fiance or spouse of a US citizen traveling to the United States on a K1 or K3 visa. In many cases, the Thai fiancee or spouse has a less than perfect grasp of the English language and therefore cannot adequately communicate with the Customs and Border Patrol (CBP) Officers. Therefore, it may be wise for the American citizen loved one to research the situation in order to explain to the Thai entrant the possible issues that may arise at the port of entry into the United States.

One interesting aspect of this rule change deals with the right of the person being searched to be present while the search takes place:

Searches of electronic devices should be conducted in the presence of the individual whose information is being examined unless there are national security, law enforcement, or other operational considerations that make it inappropriate to permit the individual to remain present. Permitting an individual to be present in the room during a search does not necessarily mean that the individual will be permitted to witness the search itself. If permitting an individual to witness the search itself could reveal law enforcement techniques or potentially compromise other operational considerations, the individual will not be permitted to observe the search itself.

It is important to note that the United States government has a great deal of unfettered search authority because they consider someone who has not actually been admitted into the US to be outside of the jurisdictions of the US constitution. Therefore, since the constitution does not apply, then normal rules restricting unlawful search and seizure do not apply. This can have a major impact upon an alien seeking entry to the USA, because they will not be accorded the same legal protections as they would after having been admitted.

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22nd August 2009

As the Obama Administration continues to put together a cogent piece of Comprehensive Immigration Reform legislation, immigrant communities in the United States of America are becoming more politically active in an effort to make their views regarding the Immigration situation known.

One immigrant group of particular interest is that of first and second generation Asian-Americans. The blog Immigration Impact recently discussed the political clout that these Asian groups are beginning to harness:

“According to the Asian American Justice Center, there are currently more than 15 million Asian Americans residing in the United States—the majority of whom are foreign born and thus have firsthand knowledge of our woefully outdated immigration system. Countless Asians are caught in the family immigration backlogs and remain separated from close family members, and there are more than 1 million undocumented Asians in the U.S. today. Because the broken immigration system affects them in such a personal way, many in the Asian American community are banding together this week to attend town hall meetings with members of Congress, hold press conferences and petition lawmakers to fix our currently broken immigration system that restricts due process rights, breaks up families, and ultimately hurts the economy.”

The United States Embassy in Thailand processes a large number of US visa cases each year. Among the many US family based petitions are those for the K1 visa and Immigrant visas based upon an I-130 application and these are probably the most popular American visa categories.  The people entering on these types of visas eventually take up Permanent Residence either through adjustment of status or upon entry as an intending immigrant. Once stateside, many of these Thai immigrants in the United States eventually go on the naturalize as United States Citizens. These immigrants and their children have something of a unique opinion regarding immigration reform and as such it is most likely a net positive if they enter the public discourse on this important issue.

As Citizens or Lawful Permanent Residents of the United States, Asian American Immigrants probably account for a disproportionately large number of family based petitions in lower preference categories. A result of this situation is the fact that many of these families remain apart for long periods of time due to the quotas set on the various immigrant visa categories and the large caseload being processed by the United States Citizenship and Immigration Service (USCIS). Hopefully, Comprehensive Immigration Reform will untie the Gordian Knot of US Immigration for these separated families while at the same time assuring that America is safe and secure.

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15th August 2009

The United States Visa process can be a time consuming proposition. In Thailand, we see many couples seeking fiance visas as well as marriage visas and for both types of visa the phase of the process which takes up the most time seems to be the approval process from the United States Citizenship and Immigration Service (USCIS). In previous blogposts we have discussed the K1 visa process and the K3 visa process. After submitting a K3 or K1 visa application, the couple must wait for USCIS approval before the visa interview at the US Embassy in Bangkok.

The California and Vermont Service Centers of the United States Citizenship and Immigration Service (USCIS) have recently updated their timing estimates for US family based petitions submitted by Americans seeking Immigration benefits for their Thai loved ones. Of note, is the fact that the estimates for K1 fiance visas seems to have dropped by approximately thirty days.

As a courtesy to all bi-national couples seeking information regarding USCIS approval times we try to post accurate estimates reflecting the current processing times for family based petitions. Below are the most up to date estimates taken from the USCIS website.

California Service Center Processing Dates as of 06/30/2009

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 January 08, 2004
I-130 Petition for Alien Relative U.S. citizen filing for a married son or daughter over 21 November 01, 2001
I-130 Petition for Alien Relative U.S. citizen filing for a brother or sister December 22, 1999
I-130 Petition for Alien Relative Permanent resident filling for a spouse or child under 21 January 15, 2006
I-130 Petition for Alien Relative Permanent resident filling for an unmarried son or daughter over 21 May 01, 2002
I-131 Application for Travel Document All other applicants for advance parole 3 Months

Vermont Service Center Processing Dates as of 06/30/2009

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 02, 2006
I-130 Petition for Alien Relative U.S. citizen filing for a married son or daughter over 21 June 04, 2006
I-130 Petition for Alien Relative U.S. citizen filing for a brother or sister September 19, 2001
I-130 Petition for Alien Relative Permanent resident filling for a spouse or child under 21 January 18, 2006
I-130 Petition for Alien Relative Permanent resident filling for an unmarried son or daughter over 21 June 04, 2006
I-131 Application for Travel Document All other applicants for advance parole 3 Months
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12th August 2009

Many people get married in Thailand each year. As a result, one of the most common questions received from clients and potential clients involves foreign recognition of a Thai marriage.  Thailand is not a common law system and therefore, the idea of common law marriage is not a concept upheld by courts in the Kingdom of Thailand. That being said, even though Thailand is a civil law system “customary or religious” marriages are still quite commonplace. This is probably due to the fact that marriage registration can be somewhat difficult, particularly for those who have never dealt with the Thai legal system and bureaucracy in the past.

In Thailand, marriages are registered at the local Amphur office. This office is kind of a combination of continual census taker and what in the American system is called a “court clerk.” The Amphur keeps records of the vital statistics of those living within that office’s jurisdiction. Therefore, the Amphur will record name changes, marriages, births, and deaths in Thailand. It is possible for two non-Thais to marry in Thailand. That being said, each office has their own internal protocol. Therefore, it may be wise to contact an attorney in order to assist with the Thai marriage registration process.

Once a Thai marriage is registered the question is: will the United States of America recognize the union. Put simply, yes. According to the website of the US Embassy Thailand, in cases involving marriages legalized in the Kingdom, “the United States does recognize the validity of such a marriage.” This is a critical question particularly in the context of USA visas. If a couple’s marriage is not recognized by the United States, then a visa application for a CR1 visa or a K3 marriage visa would likely be rejected because the couple does not meet the marriage requirement for visa issuance. Also, a couple who wishes to apply for a k1 fiance visa may create a situation where the application gets rejected because the couple got married in Thailand thinking it would not be recognized in the USA.  In that scenario, USCIS would be compelled to reject the application because the requirement is “intent to marry,” and not actual marriage.

One interesting side note regarding Thai marriage registration deals with prenuptial agreements. In Thailand, the prenuptial agreement is actually registered with the marriage and in a way is incorporated into the marital agreement at the time of registration at the Amphur. For more on this issue please see Thai prenuptial agreement

To sum up, marriages properly executed in Thailand will be viewed as valid in the United States and for purposes of obtaining a US visa or other Immigration benefits. Therefore, marriage in Thailand is not something that should be taken lightly. When thinking of entering into a marriage in Thailand keep in mind that the marriage will be treated just the same as if it had been conducted in the United States.

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10th August 2009

On August 6, 2009 the American Immigration Lawyers Association is reporting that two people in New York City have been arrested as a result of a fraud investigation targeted at a fraud ring headed by TONG HUI YOU (a/ka KEVIN YOU), 50, and XIAO LING CHEN (a/k/a LINDA CHEN), 36. According to the indictment these two were actively holding themselves out to the public as attorneys even though they had not been licensed as such. Further, the indictment alleges that these defendants were involved in a scheme to defraud by promising immigration benefits that they could not deliver.

Apparently, these two would bring victims to their office and, as AILA’s website reports,

“Once inside, the victim met YOU, who stated in substance that he was a lawyer specializing in express immigration. CHEN also told the victim that YOU was a lawyer. YOU represented to the victim that he had special connections in the U.S. immigration agency and in the U.S. Embassy in China. YOU guaranteed that the victim’s petitions for his family members in China would be approved within six months and that his family members in the U.S. would get green cards through a particular program even though they had not applied and did not qualify.” [Emphasis Added]

I placed sections of the above quote in bold and italics in order to underscore some important points. First, this type of scam is far too prevalent in Thailand. Many so called “lawyers,” “attorneys,” and “visa consultants,” cause all kind of problems for victims in Thailand. As if falsely claiming to be an attorney were not enough, these firms also promise many immigration benefits that the applicant is either ineligible to receive or would be improper to obtain based upon the victim’s situation. Another common claim is the “100% Guarantee.”

A variation on this scenario that is often played out in Thailand also involves the “visa company” creating false documentation in order to cover up facts that could be negatively construed. It is never wise to provide documents that attempt to cover up a fact material to the visa application. This authors has personally seen instances where doing so has lead to findings of inadmissibility that would otherwise have not arisen had it not been for the fact that the “visa agent” encouraged the couple to lie on an application.

The actions taken by the authorities in New York are commendable, but more needs to be done in order to eradicate the “visa agent” phenomenon which has become extremely prevalent in Thailand and on the internet. For those who have been adversely affected by an unscrupulous operator purporting to be an attorney or otherwise claiming to be able to assist with US Immigration matters, please see this link which provides information about where to go to complain about an “Immigration Consultant.”

For information on Getting a USA Visa from Thailand please see:

K1 Visa Thailand or K3 visa Thailand

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9th August 2009

On this blog, we often mention, quote, or write about the American Immigration Lawyer’s Association (AILA). Some readers have become curious as to what this organization does and what they represent. Further, some people do not understand what membership means.

In other countries such as the United Kingdom and Australia, there exist what are known as registered Migration Consultants or OISC registered immigration advisers. In the United Kingdom, the organizations purposes is well articulated on their homepage which states that the OISC, “is responsible for regulating immigration advisers by ensuring they are fit and competent and act in the best interest of their clients.”

In the United States of America an attorney licensed and in good standing with either the United States Supreme Court or the highest court of at least on state is entitled to practice United States Immigration Law. However, unlike other countries with a history of common law, the United States does not have one singular regulatory body designed to monitor the activities of those who primarily act as a US Immigration lawyer.

In a way, the American Immigration Lawyer’s Association has come in to fill the breach regarding some of the duties inherent to a professional organization. The American Immigration Lawyers Association provides advice and mentoring for new attorneys practicing in the field of American Immigration. AILA also acts as a mechanism for advocacy on Capitol Hill. The American Immigration Lawyers Association disseminates information regarding pending legislation and provides resources regarding where interested parties can go to show their support for upcoming legislative initiatives.

One aspect of AILA that is particularly beneficial to the public at large is their campaign to eradicate so-called “notarios” and “Immigration consultants.” The American Immigration Lawyers Association provides information about where disaffected parties can go in order to lodge complaints against unscrupulous operators who prey on helpless victims who unwittingly retain their services believing they are real attorneys. In the United States this phenomenon is particularly common in the Latino communities. Oftentimes people are adversely affected by the activites of the notarios who offer either purposely malicious or incorrect advice.

It should be noted that membership in AILA is not necessarily indicative of one who can practice immigration law. Any attorney who is licensed and in good standing in at least one state can provide immigration advice. However, regular AILA members must have a license to practice law.  Therefore, AILA membership is indicative of an ability to practice before USCIS.

Some “fly by night” operations in Thailand and throughout the world falsely make claims to membership in AILA. In order to verify if an operator is AILA approved, check the website and search for the attorney in question.

For more on US Immigration from Thailand please see:

K1 fiance visa

K3 marriage visa or,

US tourist visa


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