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Integrity Legal

Archive for the ‘US Visa and Immigration’ Category

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.

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9th October 2009

There are many misconceptions regarding the authority that officers at the United States Consulate in Thailand have. Many people mistakenly believe that legal concepts such as due process apply to matters going before US Consular officers. In reality, this is not the case. Consular officers have very broad powers when it comes to adjudicating applications for United States visas. There are laws on the books that Consular Officers must observe when determining whether or not a US visa should be issued, but when making factual determinations, the doctrine commonly referred to as Consular Absolutism applies to their decisions.

The Doctrine of Consular Absolutism basically states that the factual decisions of Consular Officers are not subject to appeal. This legal notion is also  called Consular Nonreviewability. In the case of Bustamante v. Mukasey the 9th Circuit Court of appeals concisely summed up the limited scope of judicial review that will be granted with regard to a Consular decisions in visa matters:

“[A] U.S citizen raising a constitutional challenge to the denial of a visa is entitled to a limited judicial inquiry regarding the reason for the decision. As long as the reason given is facially legitimate and bona fide the decision will not be disturbed…”

Showing that a Consular Officer’s reason for their decision is facially illegitimate or not bona fide is extremely difficult, if not, practically impossible. As a result, their decisions regarding visa issuance are essentially final.

Many wonder why Consuls are accorded such broad powers. The reason these officers are granted this ability to make unappealable decisions is based upon the policy argument that a Consular Officer is in the absolute best position to adjudicate the facts of a given visa application. In a way, Consular officers and the Doctrine of Consular Absolutism are the first lines of defense when it comes to preventing the entry of unqualified aliens into the United States of America.  They are also the first line of defense when it comes to determining fraud, misrepresentation, possible terrorist suspects, and facts which could result in a finding of legal inadmissibility. Therefore, Consular officers must be provided with the authority to deny visa applications that they find either suspicious or deficient.

This is why in visa cases involving family members it is very important to prove up the bona fides of the underlying relationship. A K1 visa application is based upon a relationship between a US Citizen and a foreign national. Proving the bona fides of this relationship can be crucial to a favorable decision. This is also true for marriage visas such as the K3 visa and the CR1 visa.

Although, some have questioned the wisdom of granting such broad powers the prerogatives exercised by Consular officers are not abused as those in the Consular Corps perform their duties efficiently, courteously, and thoughtfully. That being said, there are cases where the applicant must be denied for factual reasons. The only way to facilitate this necessity is to provide Consular Officers with a wide degree of discretion in adjudicating visa applications.

Another very valid policy argument for the retention of the Doctrine of Consular Absolutism (Consular Nonreviewability) is based upon the notion that allowing for an appeals process in US visa cases would create a tremendous administrative burden upon the Department of State specifically and the United States government generally. Therefore, it is unlikely that this situation will change in the near future.

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7th October 2009

Each year, the United States of America opens the “visa lottery.” Basically, foreign nationals from countries with small numbers of immigrants in the United States are entitled to submit an application for a Diversity visa. As the name implies, the Diversity visa was designed to facilitate cultural diversity in the United States by providing immigrant visas to those originating from various foreign countries.

According to the United States Department of State diversity visa application registration began on October 2, 2009:

The Department of State announces the opening of the registration period for the DV-2011 Diversity Visa lottery. Entries for the DV-2011 Diversity Visa lottery must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Friday, October 2, 2009, and noon, Eastern Standard Time (EST) (GMT-5), Monday, November 30, 2009. Applicants may access the electronic Diversity Visa entry form (E-DV) at www.dvlottery.state.gov during the registration period. Paper entries will not be accepted. Applicants are strongly encouraged not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon EST on November 30, 2009.

It should be noted that the Diversity visa application is absolutely free. Under provisions of the United States Immigration and Nationality Act, there is a special visa category for so-called diversity immigrants.

We at Integrity Legal generally do not handle Diversity visa cases as the process is fairly straightforward and can often be handled by an applicant without retaining counsel. Unfortunately, there are those who attempt to defraud unwitting consumers. A common claim made by some is that a diversity visa can be obtained after paying an initial application fee which is absolutely not true. The application for a Diversity visa is provided free of charge.

Only 55,000 visas are available each year and as a result, the chance of acquiring this type of visa is rather low. That being said, the visa lottery winners are drawn from a list of those who are from countries with low numbers of immigrants in the USA. There is a list of countries whose nationals are ineligible for a diversity visa. The list of ineligible nationals has not changed since the last round of the diversity visa lottery. Those granted a diversity visa will be entitled to residence upon entry in the United States.

For more information regarding the Diversity Visa please see our previous posting on this blog.

Visit this website: www.dvlottery.state.gov for more details.

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5th October 2009

The United States Citizenship and Immigration Service adjudicates many applications for US Immigration benefits. As a result, they deal with a large number of government forms. A form that is quite familiar to United States Immigration Attorneys is known as the G28. The G28 is the form which puts the United States government on notice that a licensed attorney has entered his or her appearance in the case. According to recent statements from USCIS, the current G28 is to be phased out and replaced by a new version.

According to a recent government press release:

“USCIS will provide a 30-day grace period for the Form G-28, until Oct. 30, so that Forms G-28 currently in the mail will be considered valid when received at the USCIS Lockbox facility or USCIS Service Center. After Oct. 30, any prior versions of the Form G-28 that are received will be considered invalid. All Forms G-28 filed before Oct. 30, will be honored for previously filed cases as long as the Forms G-28 were properly completed by an eligible attorney or accredited representative. The new Form G-28 is not required for receiving updates or interviews unless a new attorney is representing the applicant.”

Usage of form G28 is a method of detecting whether one is dealing with a licensed attorney as opposed to a “visa agent” “visa consultant” or an out and out fraud claiming to be an “immigration lawyer”. The G28 can be useful for weeding out impostors because it requires that the attorney provide his or her state of license. Other forms in a visa application will likely require the attorney’s license number. Although there are some refugee and other non-profit agencies entitled to represent clients before USCIS, these groups are not allowed to profit from said representation. Therefore, the only paid representative that will be recognized by USCIS for matters in the USA is an attorney licensed in a United States jurisdiction.

For those who are not licensed to practice law in the United States, filing a G28 on behalf of another could be construed as the unauthorized practice of law due to the rule that only attorneys are qualified to represent clients before the Immigration service for profit.

The grace period mentioned in the quote above means that at the time of this writing there are approximately 25 days left to use the old G28 form. Bearing this in mind, it may be better to simply begin using the new form as soon as possible in order to forestall a rejection of the form due to expiration.

For more information please see K1 visa application

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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?

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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).

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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.

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25th September 2009

On this blog we often try to point out the difference between retaining the services of a licensed American Immigration lawyer and using a “fly by night” operator posing as a lawyer or calling himself an “Immigration Consultant.” In recent years, the United States government and various state governments have taken a firm stand by increasing their diligence in stamping out the activities of these scam artists. In a recent development a person in Virginia was arrested, charged, convicted, and sentenced for fraud based upon the fact that they stole 1 million US dollars while claiming to be a competent specialist in the field of immigration.

The scam artist in question, “was sentenced last week to 41 months in prison for defrauding vulnerable immigrant applicants of approximately $1 million from June 2000 through December 2005.”

The above linked article further noted what is seen by some as something of a new attitude in the Federal law enforcement community with regard to Immigration fraud:

“Immigration fraud poses a severe threat to national security and public safety because it creates a vulnerability that may enable terrorists, criminals, and illegal aliens to gain entry to and remain in the United States. ICE [Immigration and Customs Enforcement] uproots the infrastructure of illegal immigration by detecting and deterring immigration fraud.”

This situation further highlights the need to conduct due diligence in order to make certain that a person claiming to be an Immigration specialist is truly certified to handle United States Immigration cases. Many confused Americans often ask, “How can I ensure that my Thai fiancee and I are dealing with a reputable attorney who is licensed to practice American Immigration law?”

Even in cases where an individual claims that they are an attorney, it is always wise to ask to see a license to practice law from at least one US state or US territory. Seeing this document will provide evidence that the person one deals with is, in fact, a lawyer. Further, it might be beneficial to further inquire as to the “lawyer’s” educational background. Make certain that they not only graduated from an ABA (American Bar Association) accredited law school, but that they passed the bar in at least one state, territory, or district in the USA. Any licensed attorney should also be registered in their state’s Supreme Court database or with their state bar association.

An unfortunate fact regarding the hiring of an unlicensed “lawyer” or “consultant” is that those type of operators are not bound by any type of ethical code. Licensed attorneys must comport their behavior to an ethical standard and are therefore obligated to do no harm to their clients. This code of conduct is not imposed upon those with no license to practice law.

Unfortunately the internet has played a role in the proliferation of so-called “visa companies,” and unlicensed lawyers. With that in mind, the prospective applicants should insist upon seeing a license in order to ensure they are dealing with a reputable operator.

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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.

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20th September 2009

US Visa Thailand: The E2 Visa

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The E2 visa is a special non-immigrant visa available to prospective investors who are also citizens of countries with a trade or commercial treaty with the United States of America. Citizens of the Kingdom of Thailand can apply for E2 visa status as the United States and the Kingdom of Thailand, at the time of this writing, maintain a Treaty of Amity and Commerce.

In order to qualify for an E2 visa the applicant must invest a “substantial amount” of money into the American economy in the form of a business venture. Although not specifically defined in the statutes or treaties, the term “substantial amount” has been largely left to be determined by the Consular officers posted at the US Embassy or Consulate where the visa application is being submitted. Although information regarding the necessary amount of money varies, a minimum investment of at least one hundred thousand dollars should be available for investment before a prospective applicant should contemplate submitting an application. That being said, the investment will be viewed in relation to the overall enterprise. As a result, a one hundred thousand dollar investment may be viewed as substantial if one is setting up a small restaurant in a region with a relatively low cost of living. However, that same amount of money will probably not be viewed as “substantial” if one is seeking to undertake the construction of a shopping mall in a heavily urban area. The United States Citizenship and Immigration Service utilizes an ‘Inverted Sliding Scale’ in order to make determinations as to whether or not the underlying investment should be considered “substantial” in relation to the total cost of the economic endeavor.

Another issue that must be considered when discussing the E2 visa is the fact that the business investment ought to create employment opportunities for American Citizens. Although it is probably more desirable to hire American workers before the submission of the E2 application. Providing evidence that employment opportunities will come about in the reasonably foreseeable  future is usually sufficient for approval of at least the initial application.
Another visa category that is generally of interest to those researching the E2 is the L1 visa. The L1 visa is a non-immigrant visa category that employs the dual intent doctrine to allow foreign employees of an international company to transfer to a US-based affiliate for the purpose of carrying out business activity in the United States. In some cases, an already established foreign corporation will wish to establish a presence in the United States. In order to staff the new company, foreign managers and executives will need travel documents to travel and work in the United States.

For related information please see our page on the establishment of an Amity Treaty Company

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