Integrity Legal

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.

Tags: American Visa Thailand, CR1 Visa, F1 Visa, Fiance Visa, J1 visa, K1 Visa, K1 Visa Thailand, K3 Visa, NOA 1, Notice of Action 1, us embassy bangkok, us embassy thailand, US Visa Thailand, USCIS
Posted in Adjustment of Status, F1 Visa Thailand, Fiance Visa Thailand, General Legal Information, J1 Visa Thailand, K-3 Visa Thailand, K1 Visa Thailand, Legal Opinion, Miscellaneous, US Consulate Chiang Mai, us embassy bangkok, US Embassy Thailand, US Visa and Immigration, US Visa Thailand, USCIS | No Comments »

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

Tags: American Immigration Attorney, American Immigration lawyer, American Visa Attorney, American Visa Lawyer, G-28, G28, US Immigration attorney, US Immigration Lawyer, US Visa Attorney, us visa lawyer
Posted in General Legal Information, Upcoming Legislation, US Visa and Immigration, US Visa Thailand, USCIS | No Comments »

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?

Tags: Adjustment of Status, CR1 Visa, CR1 Visa Thailand, I-751, I751, K1 Visa, K1 Visa Thailand, K3 Visa, K3 Visa Thailand, US Visa, Widow's Penalty
Posted in Adjustment of Status, Fiance Visa Thailand, K-3 Visa Thailand, K1 Visa Thailand, Legal Opinion, Miscellaneous, US Visa and Immigration, US Visa Thailand, USCIS | No Comments »

Every year, many people from all over the world enter the United States of America and remain temporarily. As previously mentioned on this blog and on this website, there are many different types of non-immigrant visas for those who wish to go to the United States and remain for a short period of time or for a particular endeavor which has a definitive chronological endpoint.

United States Tourist visas are a prime example of a non-immigrant category visa that can grant the applicant a long duration of stay. This type of visa is meant for those entering the USA for recreational purposes who intend to leave after their vacation has ended. US Student visas are meant for those who are traveling to the United States to engage in a course of study. Finally American Exchange visitor visas are designed for those who wish to travel to America to live and/or work in a travel exchange program.

With any of the aforementioned visa categories the underlying visa’s validity has an end date. When the non-immigrant visa’s expiration date arrives, the applicant must either depart the United States or seek an extension. An US visa extension is similar to a Thai visa extension in that the applicant must apply for the extension while in the country and if granted, the applicant may remain for longer than the initial visa’s validity.

Those who do not depart or extend are considered in violation of their visa as they are overstaying its validity. In US Immigration circles, the alien is deemed to be in the United States “on overstay.” The longer a violator remains in the United States the higher the probability that the violator will be caught and either removed from the country or given the option to voluntarily depart.

After departing the United States due to overstay, the alien may be deemed inadmissible depending upon the duration of the overstay. Further, the duration of the bar on reentry depends upon how long the violator overstayed. The alien could be subjected to a 10 year bar if he remained in the US without lawful status for a long enough period of time.

In cases involving inadmissibility based upon overstay it may be possible to obtain a waiver of the inadmissibility. The applicant will need to file an I-601 waiver in order to clear up the overstay issue because if the waiver is granted the applicant will be allowed to reenter the country on either an immigrant or non-immigrant visa.

If the alien was removed from the United States because of an overstay, it may be necessary to file an I-212 application for permission to apply for reentry. That being said, either application is approved only at the discretion of the adjudicating officer at the United States Citizenship and Immigration Service.

Tags: American Visa Thailand, I-601, I-601 Waiver, I601, I601 Waiver, Inadmissibility, overstay, US Student Visa, US Tourist Visa, US Visa Thailand, US Visa Waiver
Posted in F1 Visa Thailand, J1 Visa Thailand, Legal Opinion, Miscellaneous, Thailand Visa, US Tourist Visa, US Visa and Immigration, US Visa Thailand, USCIS, Visa Waiver | No Comments »

On this website, there is a great deal of information regarding I-601 waivers and grounds of inadmissibility.  However, there are other situations where a foreign national can be barred from reentering the United States of America. For example, where an alien has been deported or removed from the United States, they are usually subject to a reentry ban for a statutorily specified period of time. If a foreign national has been previously deported or removed from the United States, then that person must submit an I-212 application to reapply for admission to the United States (also known as advance permission to reenter).

Deportation and removal are technically the same thing as the terms can be used interchangeably. That being said, forms of removal from the United States should be looked at on a kind of legal spectrum. What is commonly referred to as “Deportation” occurs after a finding by an Immigration Judge that a person should be removed from the United States of America. Another form of removal is known as “expedited removal” this commonly occurs at a port of entry in the United States where a Customs and Border Patrol (CBP) Officer finds that an applicant for admission is not fit for entry under one or more of the  provisions of the United States Immigration and Nationality Act. In many situations, a Border Patrol Officer will allow an applicant for admission to voluntarily withdraw their application and return to the point of origin. In this situation, which is akin to voluntary departure, the applicant’s US Immigration record is not adversely affected. However, it is within the officer’s discretion to place the alien in expedited deportation proceedings and thereby have them removed from the United States.

When an alien is removed from the United States through the use of expedited deportation, that alien is barred from reentering the United States without first receiving approval of the aforementioned statutorily mandated I-212 petition. These applications are somewhat similar to I-601 waivers in that the applicant must show something  like extreme hardship to a United States Citizen would occur if the application were denied and the applicant remained inadmissible.

Avoiding expedited deportation at a port of entry (and the consequences arising therefrom) is just another reason why visa seekers should apply for a visa which comports with their intent. One who is viewed as using a United States tourist visa improperly (hiding their intention to marry in the US and adjust status) could be placed in expedited deportation proceedings. If removed, then a great deal of time and resources would need to be expended to deal with the inadmissibility. Therefore, it is not only ethically incumbent upon all applicants to be honest in their immigration endeavors, but it is also practical because avoiding expedited deportation is a great benefit from a long term perspective.

For the above described reasons, those wishing to bring a Thai loved one to the United States for the purpose of marriage are encouraged to utilize a K1 visa for this purpose as a fiance visa is the appropriate travel document reflecting the couple’s true intentions. For those already married, a CR1 visa or a K 3 visa is preferable to a tourist visa if adjustment of status is the ultimate goal.

Tags: CBP, deportation, expedited removal, I-212, I-601, I212, I601, Inadmissibility, K1 Visa, K1 Visa Thailand, K3 Visa, removal, Tourist Visa, Waiver
Posted in Fiance Visa Thailand, K-3 Visa Thailand, K1 Visa Thailand, US Tourist Visa, US Visa and Immigration, US Visa Thailand, USCIS, Visa Waiver | No Comments »

Under Section 214b of the Immigration and Nationality Act, a Consular officer can deny a non-immigrant visa (J1, F1, B1, B2) if they believe that the foreign applicant has not overcome the statutory presumption that they are actually an intending immigrant. In some cases, a consular officer may grant a tourist visa application, but the foreign national will be refused entry upon arrival in the United States of America.

How can a foreign national be granted a visa and still be denied entry to the United States? There is a common misconception that visa application approval creates a “right” to enter the United States of America. In fact, Customs and Border Patrol (CBP) Officers have the discretion to turn away alien nationals if they believe that there is a ground of excludability. If a CBP officer reasonably believes that an ostensible non-immigrant actually has immigrant intent, then they have the right to deny entry and it is further within the officer’s discretion to use expedited deportation to remove the prospective entrant.

The following paraphrases the INA:

According to section 212(a)(7)(A)(i) of the United States Immigration and Nationality Act (INA), any immigrant who, at the time of application for admission:

is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by the Immigration and Nationality Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the INS regulations, or whose visa has been issued without compliance with the provisions of the Immigration and Nationality Act is excludable [from the United States].

A waiver is available under INA §212(k) where the Attorney General is satisfied that the exclusion was not known to, and could not have been ascertained by the exercise of reasonable diligence by, the immigrant before the time of departure of the vessel or aircraft from the last port outside the United States and outside foreign contiguous territory or, in the case of an immigrant coming from foreign contiguous territory, before the time of the immigrant’s application for admission.

The powers of CBP officers described above illustrate the reason for seeking a proper visa rather than attempting to circumvent the Immigration rules. For example, there are some Americans who have a Thai loved one and they wish to bring them to the USA for the purpose of marriage and adjustment of status to lawful permanent residence. Generally a K1 visa (also known as a fiancee visa) would be the proper travel document for this purpose. However, some opt to pursue a US Tourist visa because the K1 visa has a processing time of approximately 6-7 months whereas a tourist visa generally takes a few weeks to acquire if the application is approved. Even if the visa application is approved, denial at the port of entry poses the risk of expedited deportation as well as the underlying monetary loss due to the fruitless visa application as well as travel expenses to get to the port of entry and be turned away. Removal from the United States can later be used to bar admission particularly if an Immigration officer finds that the entrant was intentionally misrepresenting themselves. In a situation such as this, the only way to remedy the inadmissibility could be the use of an I601 waiver.

Entry denial does not automatically lead to expedited deportation, the CBP officer has the discretion to allow the prospective entrant to withdraw their request for entry and leave at their own expense, but improper usage of non-immigrant visas does include the inherent risk of removal and those seeking entry to United States of America should bear this in mind when researching US Immigration issues.

Tags: 212, 212a7, American Visa Thailand, I601, Immigration and Nationality Act, INA, intending immigrant, K1 Visa Thailand, US Immigration Thailand, US Tourist Visa, US Visa Thailand
Posted in Adjustment of Status, F1 Visa Thailand, Fiance Visa Thailand, J1 Visa Thailand, K1 Visa Thailand, US Tourist Visa, US Visa and Immigration, US Visa Thailand, USCIS | No Comments »

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.

Tags: American Visa, CR-1 Visa, CR1 Visa, Deferred Action, K1 Visa, K1 Visa Thailand, US Immigration, US Visa, USCIS
Posted in Adjustment of Status, Fiance Visa Thailand, General Legal Information, K-3 Visa Thailand, K1 Visa Thailand, Legal Opinion, Miscellaneous, Upcoming Legislation, US Visa and Immigration, US Visa Thailand, USCIS | No Comments »

The United States Citizenship and Immigration Service (USCIS) is a very large bureaucracy that handles the processing of many petitions for US Immigration benefits. The Service can take a great deal of time to process visa applications and simple delay is not considered out of the ordinary. That being said, there are certain situations in which a delay by USCIS is unwarranted.

If it becomes necessary to compel a government agency to fulfill their statutorily mandated obligations, then a Writ of Mandamus can be filed to compel the agency or officer to perform their duty. A Mandamus action is a civil action and is promulgated by a court of competent jurisdiction. It specifically compels a government officer to carry out their duties in the manner prescribed by law. A piece of legislation known as the Mandamus Act, can be found at 28 U.S.C.: 1361. This provision specifically states that Mandamus is an, “Action to compel an officer of the United States to perform his duty.”

With regard to USCIS, a mandamus action will likely be brought before a Federal District Judge in a United States District Court. If granted, the court’s order will be binding upon the USCIS officer who allegedly failed to adequately fulfill his duties.

The writ of Mandamus exists for a very good reason as it was designed to create a check on the unfettered powers of government officers. That being said, those thinking of filing for a writ of mandamus should give the decision a great deal of thought because the ultimate result could turn out to be detrimental in certain cases. For example, should a case get caught up in the system making it necessary to file a Mandamus action, because the Mandamus order only compels the officer to take action, and does not compel the officer as to what decision should be made, it could turn out that the officer simply denies the application and the case comes to an end, albeit more quickly than it likely would have had the Mandamus order not been granted.

With this in mind, the Mandamus action should be utilized judiciously as not every case calls for it. In those cases where a Mandamus action would be appropriate, the seeker of such a writ should weigh all of his or her options in order to make a full determination as to whether the Mandamus action is appropriate in light of the unique facts in that particular case.

Tags: American Immigration law, Mandamus, US Immigration, US Immigration Law, US Visa, US Visa Thailand, USCIS
Posted in Legal Opinion, Miscellaneous, US Visa and Immigration, US Visa Thailand, USCIS | No Comments »

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

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

Tags: K1 visa application, K1 Visa Thailand, K1 visa Timeline, K3 Visa Process, US Visa Thailand, USCIS, USCIS Approval Time
Posted in Fiance Visa Thailand, K-3 Visa Thailand, K1 Visa Thailand, us embassy bangkok, US Visa and Immigration, US Visa Thailand, USCIS | 2 Comments »

As mentioned in previous posts on this blog, the United States Citizenship and Immigration Service  (USCIS) is the relatively new incarnation of the agency formerly known as the Immigration and Naturalization Service (INS). Currently USCIS is headed by a director who reports to the Secretary of the Department of Homeland Security (DHS).

Since the election of President Barack Obama there have been many new appointments to the upper echelons of the United States Federal bureaucracy. This week has seen the appointment of  a new Director of the United States Citizenship and Immigration Service. Through their website, the American Immigration Lawyers Association (AILA) is reporting information on the appointment:

“Director Alejandro Mayorkas was confirmed on August 7, 2009, to lead the U.S. Citizenship and Immigration Services. A hearing to consider his nomination was held on June 24, 2009. On July 28, 2009, the Judiciary Committee ordered the nomination reported to the Senate for consideration.”

We here at Integrity Legal wish to congratulate Mr. Mayorkas on his recent appointment and wish him the best of luck in his future endeavors as Director of USCIS. Many proposed changes are in store for USCIS in the coming months and years and Mr. Mayorkas will oversee what will likely be great change within the agency.

Until reading this report, I was unaware that USCIS Director’s even needed Senatorial approval before taking office. Many United States Federal appointments must be confirmed by the United States Senate before the appointee will be allowed to take office. I was aware that this process was common for high ranking American officials like cabinet appointees or Supreme Court Justices, but I was under the misperception that the United States Citizenship and Immigration Service was headed by a career federal civil servant and was not a political appointment. That being said, it makes a certain degree of sense to have the holder of this office politically appointed. USCIS is charged with bringing immigration policies into practice on behalf of the administration and as a result USCIS wields a tremendous amount of power with regard to how federal immigration law is practically implemented. Therefore, to keep USCIS policy in line with that of the administration it makes sense to politically appoint the head of that agency.

There are career civil servants who work for USCIS as the agency must remain functional during periods in which a director has yet to be confirmed by the US Senate. Career officers are appointed largely based upon merit and politics likely does not factor into their advancement within the agency.

Tags: AILA, US Immigration, US Immigration Policy, US Visa Thailand, USCIS, USCIS Director
Posted in General Legal Information, US Visa and Immigration, US Visa Thailand, USCIS | No Comments »