Integrity Legal

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.

Tags: AILA, K-1 Visa, K-1 Visa Thailand, K-3 Visa, K-3 Visa Thailand, K1 Visa, K1 Visa Thailand, K3 Visa, K3 Visa Thailand, Request For Evidence, RFE, US Visa, US Visa Process, US Visa Thailand, USCIS Request for Evidence, USCIS RFE, Visa Process
Posted in CR1 Visa, Fiance Visa Thailand, IR1 Visa, K-3 Visa Thailand, K1 Visa, K1 Visa Thailand, K2 Visa, K2 Visa Thailand, K3 Visa, US Visa and Immigration, US Visa Thailand, USCIS | No Comments »

In previous postings on this blog the holiday closing schedule for US Embassies and Consulates have been posted in order to promulgate information about the dates that posts will be open for the regular transaction of business. This is done in an effort to forestall futile trips to the Embassy by those who are unaware of the times it will be closed. In general, a US Embassy or US Consulate overseas will be closed in recognition of both National Holidays in the United States of America as well as those national holidays recognized by the host country. Below is a schedule of holiday closures for the United States Embassy in New Delhi, India:

Date	Day	Holiday	Type
January 1	Friday	New Year’s Day	American
January 5	Tuesday	Guru Gobind Singh’s Birthday	Indian
January 18	Monday	Martin Luther King’s Birthday	American
January 26	Tuesday	Republic Day	Indian
February 12	Friday	Mahashivratri	Indian
February 15	Monday	Washington’s Birthday	American
March 1	Monday	Holi	Indian
April 2	Friday	Good Friday	Indian
May 31	Monday	Memorial Day	American
July 5*	Monday	Independence Day	American
August 24	Tuesday	Raksha Bandhan	Indian
September 2	Thursday	Janmashtami	Indian
September 6	Monday	Labor Day	American
October 11	Monday	Columbus Day	American
November 5	Friday	Diwali	Indian
November 11	Thursday	Veterans’ Day	American
November 17	Wednesday	Idu’l Zuha (Bakrid)	Indian
November 25	Thursday	Thanksgiving Day	American
December 17	Friday	Muharram	Indian
December 24**	Friday	Christmas Day	American

* in lieu of July 4, Sunday
** in lieu of December 25, Saturday

The above information is quoted from the website of the US Embassy in New Dehli. It should be noted that an Embassy can close for reasons other than recognition of official holidays so it would be wise to check the Embassy’s website directly before traveling to the Embassy as local conditions could require the Post to be closed with little notice. For those interested in checking the official website of the US Embassy in India, please click: here.

Many people travel to a US Embassy in another country in order to obtain documentation that cannot be obtained from another location. For example, those who need a new passport, a Consular Report of Birth Abroad, or an American Notary overseas go to the American Citizen Services Section of a US Embassy abroad in order to obtain this type of documentation. Prospective immigrants travel to an Embassy in order to interview for US Visas such as the K1 visa, the K3 visa, or an Immigrant visa. No matter what one’s reasons are for traveling to the Embassy, foreknowledge of their hours of operation could avert frustration.

Tags: American Citizen Services, consular report of birth abroad, Holiday Closing Us Embassy New Dehli India, Immigrant Visa, K-1 Visa, K-3 Visa, K1 Visa, K3 Visa, US Embassy India, US Embassy New Dehli
Posted in CR1 Visa, IR1 Visa, K1 Visa, K2 Visa, K3 Visa, US Embassy India, US Embassy New Dehli, US Tourist Visa, US Visa and Immigration | No Comments »

As explained in previous posts on this blog, the United States Embassies and Consulates overseas generally close for both national US holidays as well as those holidays recognized by the host country. The US Embassy in Indonesia closes in recognition of many Indonesian holidays as well as American holidays. Below is the scheduled closings for the US Embassy in Jakarta, Indonesia. The following holiday schedule is posted on the American Embassy in Jakarta’s website:

Oftentimes it is difficult to go to a US Embassy abroad for those who are living, working, or traveling through a foreign country. Expatriates and prospective immigrants who have lives to lead in the host country often find that going to the US Embassy requires a whole day to get an important issue resolved. Therefore, we have provided the above information on this blog in an effort to forestall a fruitless trip to an Embassy due to lack of foreknowledge on the part of American expats regarding the Post’s operating hours.

That being said, a Diplomatic or Consular Post is not required to be open at all times and there are times when Embassies and Consulates close without warning. For this reason, it may be prudent to go directly to the United States Embassy website in order to check if the post will be open at a certain time. To proceed to the US Embassy in Jakarta’s official website please click here.

For those American Citizens or Lawful Permanent Residents  overseas who wish to obtain a new passport, a Consular Report of Birth Abroad, a notarized document, or other services at the Embassy it may be possible to make an appointment with American Citizen Services (ACS). This provides convenience to the individual as well as the post as the Consular personnel can anticipate the needs of the Citizen and plan accordingly.

Tags: American Citizen Services, American Embassy Indonesia, American Embassy Jakarta, American Visa Indonesia, Holiday Closings US Embassy Indonesia, Holiday Schedule, US Embassy Indonesia, US Embassy Jakarta, US Visa Indonesia
Posted in CR1 Visa, IR1 Visa, K1 Visa, K2 Visa, K3 Visa, US Embassy Indonesia, US Embassy Jakarta, US Tourist Visa, US Visa and Immigration | No Comments »

Recently, the United States Tenth Circuit Court held that, under certain circumstances, those holding K-2 visas who wish to adjust status do not “age out.” The tenth circuit’s opinion is found in Colmenares Carpio v. Holder, No. 08-9536 (10th Cir. Jan 12, 2010). To quote directly from the immigration slip opinion blog regarding the underlying facts of the case:

The petitioner entered the United States in K-2 status 6 months before turning 21. His mother married the US citizen within the required 90 days, and the petitioner and his mother applied for adjustment of status before he turned 21. USCIS took two and a half years to decide his application for adjustment of status. USCIS denied the application based on Petitioner’s age on the date of adjudication of the application. An Immigration Judge found that Petitioner was not eligible to adjust status because he was over the age of 21, and the BIA affirmed with a one paragraph unpublished decision.

To further quote the aforementioned blog, within the language of the opinion, the Tenth Circuit Court commenced with an analysis “of [the] statutory construction and found that there is no age limitation on adjustment of status of K-2 visa holders.” That being said, the court’s analysis in this case, “declined to address other scenarios such as when the marriage or the filing of the application occur after turning 21.”

This decision deals with a somewhat narrow set of facts as the K1 visa holder managed to arrive in the US, marry within 90 days, apply for adjustment of status and obtain approval prior to the K2 visa holder’s 21st birthday. The K2 visa holder applied for adjustment of status prior to his 21st birthday, but the case was not adjudicated until afterward.  This court in the above cited opinion has held that based upon these facts, the K2 visa holder did not “age out” and could therefore still adjust status.

For those who are unaware of how the K1 visa process works: the K-1 visa holder enters the United States and has 90 days to get married and apply for adjustment of status. The K1 (or K2) holder is allowed to remain in the USA pending a decision on the adjustment application (in fact is departure is necessary an advance parole travel document should be obtained prior to departure in order to preserve status).

A K2 visa is derivative of a K1 and is intended for the children of K1 visa holders. The statute is somewhat ambiguous regarding K2 visa holder’s rights when it comes to adjustment of status, but the opinion above has clarified some of the issues surrounding K2 visas, but further clarification is needed as in a different factual scenario it is possible that a K-2 visa holder could be barred from adjusting their status.

Tags: Adjustment of Status, Aging Out K-2 Visa, Aging Out K2 Visa, K-1 Visa, K-1 Visa Thailand, K-2 Visa, K-2 Visa Age Out, K-2 Visa Aging Out, K-2 Visa Thailand, K1 Visa, K1 Visa Thailand, K2 Visa, K2 Visa Age Out, K2 Visa Aging Out, k2 visa thailand, US Visa, US Visa Thailand
Posted in Fiance Visa Thailand, K1 Visa, K1 Visa Thailand, K2 Visa, K2 Visa Thailand, Upcoming Legislation, US Visa and Immigration, US Visa Thailand, USCIS | No Comments »