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Archive for the ‘US Visa and Immigration’ Category
15th December 2009
221(G) Denials, ESTA Authorization, and US Immigration
Posted by : admin
When visa applications are submitted they process through the US Immigration system. The process depends upon the type of visa being sought. In situations in which applicants are seeking a K1 visa, K3 visa, CR1 visa, or IR1 visa the process is often routine, but many get through the entire process to find themselves confronted with a 221(g) refusal. AILA recently distributed an article dealing with this issue as it now has an impact upon those who utilize the Visa Waiver program and ESTA (the Electronic System for Travel Authorization) when traveling to the USA. To quote the publication’s section on 221(g) refusals:
“Section 221(g) of the INA provides for a temporary refusal when an otherwise qualified visa applicant is found to be lacking a specific document, or when a consular officer determines that additional security clearance is required. Consular officers beneficially use 221(g) as a way of affording applicants every opportunity to supplement their applications in order to address concerns – such as possible fraud – that arise at the visa interview. Once the deficiency is satisfied, or the concern resolved, 221(g) refusal is “overcome” and the visa may be issued.”
221(g) denials can truly be a boon to both the Consular Officer and the Immigration attorney as it provides a clear indication of what needs to be presented in order to facilitate visa issuance. That being said, Consular Officers can re-issue 221(g) refusals, but this rarely occurs as many officers seem to make a point of ensuring that all other documents are compiled before issuing an initial 221(g).
Many people wish to know information regarding common reasons for 221(g) refusal. AILA provides a brief overview of the common reasons for this type of denial. To further quote the aforementioned publication:
“1. The applicant is asked to provide additional supporting documents, such as proof of local employment;
2. The applicant is employed in a field listed on the Technology Alert List (TAL) and the consular officer requests a Visas Mantis Security Advisory Opinion (“SAO”). (This is one of the most common scenarios in which applicants in India, China and elsewhere are told their applications require “administrative processing.”)
3. The consular officer requests an Advisory Opinion from the Visa Office on the applicability of one of the statutory grounds of inadmissibility.
4. There are no empty visa pages in the applicant’s passport, or the application photograph does not meet quality standards.
5. The applicant’s petition approval is not yet listed in PIMS.”
In many cases, 221(g) refusals are routine and they usually do not have a detrimental impact upon travelers to the USA. However, in recent months it has been announced that the Customs and Border Protection (CBP) Service treats 221g refusals as denials when posing the question “have you ever been denied a visa to the USA” on the ESTA registration form. It would appear that the ESTA system “red flags” those who have been “denied” a prior visa and asks that some of these applicants receive an actual visa (in most cases a US tourist visa) before traveling to the USA which could cause delays to those wishing to enter the country.
Currently, the Kingdom of Thailand does not participate in the American Visa Waiver Program so this issue with CBP will have little impact for Thai nationals traveling to the United States. However, people in Thailand who hold the nationality of a country which participates in the Visa Waiver Program may be effected by this new regulation if they are presented with a 221(G) denial by a Consular Officer at the US Embassy in Bangkok.
14th December 2009
US-Thai Amity Treaty: Certification Restrictions
Posted by : admin
Thailand has become a major epicenter of trade in Southeast Asia. The Kingdom also remains one of the most important trading partners of the United States of America, the European Union, and the United Kingdom. Many businesspeople who do business in Thailand must deal with restrictions imposed upon foreigners under the Thai Foreign Business Act. American Citizens enjoy some benefits under the provisions of the US-Thai Amity Treaty. This Treaty was promulgated in the mid-60′s. In Thailand, Treaties are considered the “law of the land,” and are considered superior to locally drafted legislation (this notion is similar to many of the ideas codified in the American Constitution, specifically the Supremacy Clause). As the Amity Treaty is the “law of the land,” it supersedes the Foreign Business Act.
A Thai Limited Company certified under the provisions of the Treaty of Amity is a good vehicle for conducting business in Thailand, but the Treaty does have caveats and Companies conducting certain types of business cannot obtain Treaty Certification. Most importantly for some, Amity Treaty Companies cannot own land. Even though an Amity Company is accorded “National Treatment,” the company is barred from holding property in the form of Thai Real Estate. Although, technically it may be possible for an Amity company to purchase a Condo in Thailand.
Aside from ownership of Thai property, there are other activities which an Amity Company cannot engage in, such as: Inland Transportation, Communications, Fiduciary Functions, and the Practice of Professions. Each of these types of activity are reserved to Thai nationals and/or Thai Companies. Even still, the Amity Treaty provides American Citizens with the opportunity to own virtually 100% of a Thai company. For many types of businesses the Amity Treaty is a perfect solution to the problems imposed upon foreigners by the Foreign Business Act.
Some have postulated regarding the possibility of using American Citizens as nominees in order to obtain Amity Treaty benefits. This is basically impossible as nominee shareholders are illegal under current Thai law. That being said, delineating whether or not an American Company is “American,” could be difficult. The relevant agencies of the Thai Ministry of Commerce adjudicate Amity Treaty Certification applications on a case by case basis and come to a decision based upon the makeup of the corporate shareholders in question.
An Amity Treaty Certificate is somewhat similar to a Foreign Business License. However, the two documents are issued based upon different legal foundations. There are some US Immigration benefits accorded to Thai nationals under the US-Thai Treaty of Amity in the form of E visas, but there is not a direct counterpart found under Thai Immigration law.
13th December 2009
AILA Comments on Proposed Rule Changes for J1 Visas
Posted by : admin
J-1 visas are meant for those who are entering an exchange visitor program or traveling to the USA for the purpose of doing specific types of work (most notably: Au pair child care). This visa has been in existence for many years and the rules regarding issuance have not be modified in a long while.
Recently the American State Department has proposed making changes to the system whereby foreign nationals obtain the J1 Exchange visitor visa. The American Immigration Lawyers Association (AILA) has recently promulgated comments on the proposed changes in an effort to provide a different perspective to those who will ultimately pass these rules. In a recent press release AILA stated:
“We commend the United States Department of State (the Department) for acting on its goals to update and improve the Exchange Visitor Program through the first significant proposed rulemaking since 1993. We also recognize and applaud the Department’s efforts to increase overall program oversight, but we urge the Department not to do so at the risk of weakening the very foundation on which the J-1 program rests.”
Not everything in this press release was laudatory as the Association also noted that some of the proposed rule changes might actually undermine the original intent of the J1 visa legislation:
“[W]hile we recognize that the Department [of State] must demand accountability on the part of sponsors of the J-1 program, we fear that it has used the medium of this proposed regulation as a means of eroding the range and number of opportunities for young men and women to learn about our culture and return to share important skills and insights with their compatriots. AILA recognizes the major role that the Fulbright-Hays Act has played for nearly 50 years to instill trust and promote understanding, education, and training among people of dramatically divergent cultures and for the mutual benefit of our people as well as the people of nations struggling to achieve financial and
cultural independence. It is crucial that the full range of these opportunities continues to exist.”
The J-1 visa is an example of a valuable method not only for providing advanced education to foreign nationals, but also for spreading American culture and American ideas to other countries. Undermining this system of cross-cultural exchange would indeed be detrimental. However, the US State Department does have an obligation to investigate candidates and sponsors for J-1 Exchange Visitor visas in an effort to be certain that the visa is being issued for appropriate reasons and to appropriate applicants. Hopefully, the American State Department can find a proper balance whereby the security needs of American Citizens are protected while cross-cultural exchange is still facilitated. As with many non-immigrant visas, both the US Embassy in Bangkok and the US Consulate in Chiang Mai can issue such travel documents to applicants in Thailand.
12th December 2009
Customs and Border Protection Says H1N1 Vaccine Not Necessary
Posted by : admin
After the tragedy of 9/11 many changes were made with regard to Homeland Security. Specifically, a Department of Homeland Security (DHS) was created and many tasks previously undertaken by other agencies were brought under the jurisdiction of DHS. One example is the United States Customs Service which was reincorporated into the Department of Homeland Security as the Customs and Border Protection (CBP) Service. This agency is responsible for patrolling the borders and ports of entry to the United States of America. They are also responsible for screening those who enter the United States of America either on a US passport, US visa, or US visa waiver. CBP plays an integral part in the US Immigration process.
Prior to this publication, there has been a rumor circulating that those who wish to enter the United States of America must fist obtain a vaccination for the H1N1 influenza vaccination. As a matter of fact, this is not true. Apparently this rumor is unfounded. AILA has provided a quote from a statement from the Customs and Border Protection Service:
“[United States] Customs and Border Protection would like to address rumors regarding U.S. entry requirements and the H1N1 virus: Travelers do NOT need to present proof that they received the H1N1 flu vaccine in order to enter the United States. No such vaccination requirement exists. Travelers are encouraged to visit the Department of Health and Human Services Flu Web site for current information on seasonal flu prevention, and the “Know Before You Go” section under the Travel tab of the CBP Web site for helpful traveler tips.”
For those seeking entry to the United States a flu vaccination is not required at this time.
In recent years CBP has been granted more and more authority to deal with real time situations. This leads many to wonder just how much authority CBP has. This is an interesting question as they are given major discretionary powers with regard to those seeking entry to the United States. For example, CBP is authorized to place foreign nationals into expedited removal (deportation) proceedings if they deem it necessary. One who has been removed through expedited removal could be barred from reentering the USA for as long as five years. That being said, this only seems to come up in the context of US Family Immigration when the loved one of a US Citizen is improperly using a US tourist visa for undisclosed immigration purposes. In situations such as this, CBP may feel it necessary to use expedited removal to send the subject back to their home country. Therefore it is usually wise to process things correctly and utilize the proper visa for a loved one traveling to the United States.
11th December 2009
The Widow Penalty Comes to an End
Posted by : admin
In a recent article disseminated by AILA, Mr. Brent Renison discussed issues involving the so-called “widow’s penalty” (or “Widow Penalty”) and how recent legislation has been enacted to end the imposition of penalties imposed upon foreign spouses in the event that their US Citizen or Lawful Permanent Resident spouse should pass away before the adjudication of an adjustment application or an application for a lift of conditions of lawful permanent residence. To quote the article:
“The “widow penalty”, whereby spouses of U.S. citizens and their children faced automatic denial of a visa petition if the death of the spouse occurred prior to adjudication and prior to two years of marriage, effectively ended upon the passage of § 568(c).2 That section removes the two-year marriage requirement from the current law that permits widows and widowers (“widow(er)s”) of U.S. citizens to file a self-petition for themselves and their children.”
It is still required that the American’s widow demonstrate that the marriage was bona fide when it was entered into:
“By removing the two-year precondition to a current statutory program, Congress retained the widow(er) self-petition procedure including the requirement to show a good faith marriage. The law does not alter the rights of widow(er)s who were married two years or more, who have been able to self-petition since 1990.”
The end of the Widow Penalty hopefully marks the beginning of more compassionate treatment of foreign widows of American Citizens. The aforementioned article goes further in its analysis of the new law and the impact it will likely have upon fiancees and spouses of US Citizens:
“The deletion of the two-year marriage requirement will allow a widow(er) who was married less than two years at the time of the citizen spouse’s death to file a Form I-360 self-petition within two years of the law’s passage, or within two years of the spouse’s death, whichever is later.”
It is interesting that this will likely have an impact upon those who enter the United States upon a K1 fiancee visa:
“This self-petition can be filed concurrently with an Application for Adjustment of Status to Lawful Permanent Resident (Form I-485) if the widow(er) is in the United States pursuant to a lawful entry.”
Therefore, if the fiance of a US Citizen enters the USA on a K1 visa, marries the US Citizen, and the US Citizen dies before the adjustment application is either filed or adjudicated, then it would now be possible for the fiance visa holder to self petition for adjustment in these circumstances. In this author’s opinion, this is an equitable and effective way of dealing with what is already a difficult issue.
If a lawful entry is all that is necessary, then the question must be posed: if an alien enters the USA on a valid tourist visa, marries an American who subsequently dies, would that alien be eligible to submit a self petition for adjustment of status? Hopefully these issues will be handled as the new law is brought into effect.
7th December 2009
United States Criminal Warrants and Convictions
Posted by : admin
Recently, this author was asked about whether or not Thailand and the USA share an extradition Treaty and, if so, what are the ramifications of an American criminal warrant or conviction for those living in Thailand.
Extradition, “is the official process whereby one nation or state requests and obtains from another nation or state the surrender of a suspected or convicted criminal.”
Thailand and the United States currently have an Extradition Treaty. It is similar to the US-Thai Amity Treaty in that it is bilateral, but the subject matter of the Amity Treaty is very different compared to that of an Extradition Treaty. An Extradition Treaty provides a framework whereby the United States authorities can request that a suspect be handed over to the American authorities. That being said, for more information on specific legal citations please see the relevant Wikipedia page.
As Thailand and the United States share an Extradition Treaty, a person with American Criminal Warrants or American Arrest Warrants could be subjected to United States jurisdiction while in Thailand or while traveling between Thailand and another country. Even if not arrested in Thailand, it is always wise for those with criminal warrants or convictions to deal with the matter so that it can be “put to rest.” It is never wise to run from one’s criminal problems.
For those with a prior criminal conviction or pending criminal warrants the issue of passport re-issuance can be critical. The United States Embassy in Bangkok, Thailand and the United States Consulate-General in Chiang Mai assist with new passport re-issuance through their American Citizen Services Sections. If one is currently wanted in a US jurisdiction, then the Consular Officers at American Citizen Services are unlikely to issue a new passport or travel document until the American (or foreign national) in question returns to the United States to deal with the pending matter.
Of further importance to many non-US Citizens with pending American criminal warrants is the effect of criminal proceedings upon one’s ability to acquire United States Immigration benefits (most importantly, a US visa). If one has an arrest or conviction for domestic violence, this fact could have a major impact upon one’s ability to petition for a K1 visa due to the provisions in the Adam Walsh Act and other relevant US law. Further, if one has a criminal conviction in the US, the underlying facts of the case could lead to a later finding of inadmissibility by a Consular Officer adjudicating a later visa application. In some cases, an I601 waiver may be available for those who are found to be inadmissible. Consulting with an attorney experienced in Immigration matters could provide insight regarding the Immigration ramifications of an American criminal conviction.
An American attorney in Thailand (or southeast Asia) could be of assistance to a client by acting as a liaison with American authorities or with other American attorneys. Simply providing legal advice regarding the impact of one’s prior choices could be a boon to some as well. No attorney can assist in evading US law, but a lawyer licensed in the United States could assist by providing legal counsel and advice regarding the ramifications of a client’s previous decisions.
4th December 2009
Holiday Season and Delays at the US Embassy in Bangkok Thailand
Posted by : admin
Although the weather is still tropical, albeit cooler, it is the western holiday season in Bangkok, Thailand. This means that the United States Embassy, as well as other government agencies, sees many of their personnel taking leave in order to visit family and friends in the United States of America. This time of year can sometimes cause delays for visa applications, particularly those that are subject to a 221g refusal or have been placed in administrative processing for further review.
Around the American holiday season it is common for Embassy and Consulate staff to take leave in order to return to the United States of America to be with friends or loved ones. This can cause the usual tempo of the post to slow down. As with any organization be it private, non-profit, for-profit, or governmental the holidays can cause delays due to staff shortages. Those with pending visa applications should exercise patience regarding case adjudication during the holidays. That being said, Embassy and Consulate personnel are very diligent in processing cases and, from this author’s observation, really go above and beyond at holiday time to try to keep the process moving at the usual pace.
In order to forestall delays in the processing of US visas it is incumbent upon the applicant to provide all relevant documentation and provide completed visa application forms.
It is wise for applicants to also keep in mind that the United States Embassy is closed on Thai holidays as well as official United States holidays. Many forget this fact and arrive at the Embassy to find it closed. For those in this situation it is wise to note the US Embassy Holiday closing schedule. American Citizens seeking to obtain notarizations, Consular Reports of Birth Abroad, visa pages, or new passports should also note that the American Citizen Services section of the US Embassy is also closed on Thai holidays as well as American holidays. The US Consulate in Chiang Mai has the same holiday schedule as the US Embassy in Bangkok. One would be safe in assuming that the Bangkok office of the United States Citizenship and Immigration Service (USCIS) would be closed on the same days as the US Embassy regardless of the fact that they are two separate United States government agencies.
As with many issues arising in the field of United States Immigration: prior preparation through knowledge of the Embassy closure as well as presentation of a fully compiled visa application can save time for all concerned and go far toward ensuring efficient visa application processing.
2nd December 2009
State Department Cable 99 and the Role of Immigration Attorneys
Posted by : admin
The United States Department of State is tasked with overseeing the efficient operation of US Embassies and Consulates abroad. Often, State Department headquarters issues instructions to posts abroad using official cables. In US Immigration circles there is a well known cable called “99 State,” otherwise known as 99 State 21138. This cable lays out guidelines for Consular Officers with regard to United States Immigration Attorneys.
The first notable policy outlined in the Cable deals with the relationship between Immigration attorneys and Consular Officers:
“The relationship between consular officers and immigration attorneys can be productive. Consular officers can often learn a great deal from a conscientious attorney, and vice versa.”
There is no doubt in this author’s mind that this is true. Consular officers provide a great deal of assistance when processing visa applications. More than anything, they can provide insight into the underlying policy reasons behind failure to issue a visa. In many cases, the reason for delay is due to a failure to provide pertinent information that the client did not believe was necessary to adjudicate the petition.
The Cable goes further:
“Consular officers should not pass judgment on applicants who choose to employ the services of an attorney. Some people are more comfortable working through an attorney no matter how straightforward or simple the visa case may appear to the consular officer.”
This is one section of the cable that Consular Officers seem to have taken to heart. This author has never felt that Consular Officers look askance at applications where the petitioner or beneficiary has retained an attorney to assist in preparation. With regard to case preparation, the Cable goes further:
“One important service that attorneys provide to their clients is making sure that forms are correctly completed and necessary supporting documentation presented at the time of the interview.”
Consular Officers are required to adjudicate petitions and, if the petitions receive approval, issue visas. In this author’s experience their primary goal seems to be efficient processing of bona fide petitions. Immigration attorneys can enhance the process through documentation compilation and foreknowledge of relevant issues. Those issues that may effect the outcome of a case can be dealt with in such a way that case processing proceeds smoothly. In many ways the Consulate forestalls unforeseen delays through promulgation of consistent rules:
“Posts that establish clear and consistent procedures for responding to attorney inquiries save time and resources in the long run. As with Congressional correspondence, the fuller the explanation of a refusal or a 221(g) decision, the more you will help yourself.”
It has been this author’s experience that Consular staff are very upfront about what they are seeking in a given case. Further, the role of an attorney is clearly defined by the US Embassy Thailand as no one is allowed to be present during the visa interview, this includes American fiances and husbands in K1 visa and K3 visa cases. This being said, attorneys are currently permitted to submit 221(g) follow-up documentation where necessary.
In the years since the distribution of “99 State,” it is this author’s opinion that Consular Officer-Immigration attorney relations are professional, efficient, and cordial and there is no reason to believe that this will not continue to be the case.
30th November 2009
US Foreign Affairs Manual (FAM): Attorney’s Role in Visa Matters
Posted by : admin
There is some misunderstanding as to an attorney’s role at the Consular processing phase of the US visa process. The Consular processing phase is usually the final visa processing phase as it usually culminates in the issuance of a US visa. In cases involving legal grounds of inadmissibility this may not be the case (as such cases require the extra step of obtaining an I601 waiver), but in a routine family visa application, such as an application for a CR1, K3, or K1 visa, the visa is generally issued soon after the Embassy interview.
Many are under the mistaken impression that an attorney can be present at the visa interview. Although this may be true at some posts, the US Embassy in Bangkok does not permit this practice. Under the provisions of the Foreign Affairs Manual (FAM), US Embassies and Consulates are entitled to set policy regarding attorney representation at the post:
“Each post has the discretion to establish its own policies regarding the extent to which attorneys and other representatives may have physical access to the Consulate or attend visa interviews, taking into consideration such factors as a particular consulate’s physical layout and any space limitations or special security concerns. Whatever policies are set must be consistent and applied equally to all.” [9 FAM 40.4 N12.4]
Although a post has wide discretion with regard to presence therein, the post is required to notify the attorney of record regarding the ultimate status of the application:
“The post must send a notification of the action taken at the time of the final immigrant visa appointment to the applicant’s attorney of record on a locally reproduced nonstandard form letter… If the immigrant visa is refused, you must hand a copy of the refusal letter, and a copy of Form OF-194, The Foreign Service of the United States of America Refusal Worksheet, attached to the form letter to the alien (making sure that the refusal worksheet is retained in the applicant’s visa file).” [9 FAM 40.4 N12.2]
The Foreign Affairs manual goes further by permitting direct correspondence between attorneys and Consular Officers:
“You may correspond directly with the applicant’s representative of record, even in cases where the applicant is physically present in the United States, unless the applicant requests otherwise.” [9 FAM 40.4 N12.1]
Importantly, the Foreign Affairs Manual requires that an attorney licensed in the US, but practicing abroad, be accorded those same courtesies granted to attorneys practicing in the USA:
“You must extend to a U.S. attorney who has been practicing abroad and is a member of a State bar association or to a local attorney-at-law, the same courtesies in correspondence that are extended to an attorney practicing in the United States…” [9 FAM 40.4 N12.3]
In this author’s experience, the US Embassy in Bangkok, Thailand diligently adheres to the rules in the Foreign Affairs Manual while exercising reasonable discretion in order to efficiently process a very large caseload. Although not permitted to be present at the visa interview, a US visa lawyer in Thailand can provide a great deal of insight into the final phases of the US visa process.
For more information on the Foreign Affairs Manual please see the US Department of State Website by clicking here.
29th November 2009
K1, K3, CR1, IR1 Visa: USCIS Processing Times (Updated)
Posted by : admin
The United States Citizenship and Immigration Service (USCIS) routinely issues updates regarding the processing time estimates for cases submitted at USCIS Service Centers in the United States of America. Since this website is dedicated to United States Family visas such as the CR1 visa, IR1 visa, K1 visa, and K3 visa; we have only displayed the processing times for the service centers which process these applications. For more information please see the new USCIS website.
The following are the processing times for the USCIS California Service Center as of September 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 | October 16, 2004 |
I-130 | Petition for Alien Relative | U.S. citizen filing for a married son or daughter over 21 | March 02, 2002 |
I-130 | Petition for Alien Relative | U.S. citizen filing for a brother or sister | June 16, 2000 |
I-130 | Petition for Alien Relative | Permanent resident filling for a spouse or child under 21 | August 16, 2006 |
I-130 | Petition for Alien Relative | Permanent resident filling for an unmarried son or daughter over 21 | October 02, 2002 |
I-131 | Application for Travel Document | All other applicants for advance parole | 3 Months |
The following are the processing times for the USCIS Vermont Service Center as of September 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 03, 2006 |
I-130 | Petition for Alien Relative | U.S. citizen filing for a married son or daughter over 21 | June 05, 2006 |
I-130 | Petition for Alien Relative | U.S. citizen filing for a brother or sister | June 19, 2007 |
I-130 | Petition for Alien Relative | Permanent resident filling for a spouse or child under 21 | January 19, 2006 |
I-130 | Petition for Alien Relative | Permanent resident filling for an unmarried son or daughter over 21 | June 05, 2006 |
I-131 | Application for Travel Document | All other applicants for advance parole | 3 Months |
It should be noted that these processing times are only estimates and every Immigration petition is unique in that it processes at its own pace. Further, these processing times are only relevant with regard to USCIS. The US Embassy in Bangkok and the US Consulate in Chiang Mai process applications after they have received USCIS pre-approval.
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