Integrity Legal

How can my Fiancee and I meet the K-1 Visa Requirements?

Many couple’s initial question regarding the K-1 visa is: do we meet the legal requirements for a K-1 visa? Although the K-1 has less requirements than other US visas, there are still requirements that must be met in order to meet the statutory requirements laid out in the US Immigration and Nationality Act.

Basic Requirements in order to Petition for a K-1 Visa for a Foreign Fiancee

With regard to the K-1, a major legal requirement is that the Petitioner be a United States Citizen. Unlike US Marriage visas, a K-1 visa can only be obtained for the fiancee of an American Citizen. In Thailand, this is not n issue that generally arises, but in other areas of Southeast Asia (Vietnam for example), lack of United States Citizenship is often a preclusion for those who would otherwise have filed for a K-1 visa.

Further, the United States Citizen and foreign fiancee must have met in person at least two years prior to submitting the K-1 visa application. In certain cases, particularly involving arranged marriages in which the parties cannot meet in person as dictated by custom, it may be possible to obtain a waiver of this requirement, but in nearly all cases this is a firm requirement in order to qualify for a K-1 visa.

A US Citizen is required to show evidence that he can adequately support a foreign fiancee should she receive a K-1 visa. The Financial requirement is currently set at 125% of the poverty level as designated by housing and human services. For the current figures please see: K-1 visa financial requirements.

K-1 visa requirements imposed by IMBRA and the Adam Walsh Act

There are further K-1 visa requirements imposed by the International Marriage Broker Regulation Act and the Adam Walsh Child Protection Act. If the US Citizen has petitioned for 1 or more K-1 visas in the 2 years prior to current K-1 application, then they will be precluded from obtaining another K-1 without obtaining a waiver from USCIS. As to the Adam Walsh Act, the statute generally requires that the US Citizen mus not have a criminal history involving offenses against children in order to be eligible to apply for a fiancee visa.

K-1 visa requirements: Necessity of a US Immigration Attorney

Where there is a question as to whether or not the US Citizen and Thai fiancee meet the K-1 visa requirements it may be helpful to consult a US Immigration attorney in order to determine if all K-1 visa requirements have been met.

(Please note that none of the content contained herein should be used instead of personalized legal advice from an attorney. Further, this is a general list of K-1 visa requirements, it is non-exhaustive and therefore should not be used as a definitive source regarding K-1 visa requirements. No lawyer-client relationship should be assumed to exist between the author and reader of this article.)

The K-1 Application: Frequently Asked Questions

A very frequently asked question with regard to the K-1 Fiance Visa is: how do we apply for a K-1 Visa? US Immigration procedure is a somewhat difficult to understand for those who have never dealt with the application process. This post will briefly provide details about the K-1 application, where it will be filed, and use of an Immigration attorney.

A common misconception held by many American Citizens is that a visa applicant can simply apply for the K1 Visa at the US Embassy directly. It is easy to understand why people believe this particularly in light of the fact that this is essentially the procedure for obtaining a US tourist visa. In the case of K1 visas this, however, is not the case. One must first file the K-1 visa application with an office called the United States Citizenship and Immigration Service, or USCIS for short. The application is then routed to the National Visa Center and remitted to the American Embassy in Bangkok.

There are so many forms, which should be used?

Many people are belabor under the myth that the US Immigration process is a very straightforward process. In reality, because US Immigration law is statute driven it can be quite complex to the point of being byzantine. The rules governing how and where things must be filed and the order in which petitions ought to be filed can be fraught with difficulty for the laymen. In the case of the K1 visa, the correct application form that should be used is the I-129f. This should not be confused with the I-129 petition form. Withing this application form, there are many questions that  a couple will need to confer about. Recent statutory changes like IMBRA and the Adam Walsh Act have created new restrictions with regard to who is allowed to petition for a K-1 visa.  The I-129f is the crux of the fiance visa application, but there are more government forms that must accompany this application along with supporting documentation that must be used to prove the legitimacy of the relationship.

Where do we file the K1 visa application?

The location that one should file a K1 application depends upon where the US Citizen’s residence in the United States is located. Another misunderstanding involves a belief that aK1 application can be filed at a local USCIS office. In most cases this is not correct. There are two Service Centers for US Citizens wishing to file a K1 application, one is in Vermont and the other is in California. The location for filing the application depends heavily upon the US Citizen’s state of residence.

Should we use an attorney to file a K-1 visa application?

Retaining the services of an attorney is a decision that each couple should decide on their own. That being said, a great deal of the administrative burden can be lifted by retaining attorney assistance. An attorney or law firm with an office in the home country of the fiancee can be even more beneficial because the attorney can deal with the fiancee’s issues at the US Embassy in real time.

(Nothing Contained herein should be thought of as an appropriatealternative to personalized legal advice from a competent attorney. No attorney/client relationship should be assumed to have been created by merely reading this post.)

Consular Processing: Visa Interview Preparation for a Thai Fiancee or Wife

One unique aspect of practicing United States Immigration law abroad is the ability to assist a foreign loved one with the US Embassy in Bangkok. Currently, the US Embassy’s policy states that no one other than the Thai applicant may be present for the visa interview at the Embassy on the day of the interview (this included the US Citizen spouse or Fiancee). Due to the fact that the foreign loved one will go through the interview process alone, the services of an immigration attorney can be very beneficial in preparing the foreign fiancee or spouse for the interview and giving the fiancee or spouse prior notification of Embassy procedure and what to expect. Depending on the category of US visa (K-1, K-3, or CR-1) different thresholds of proof will be required with regard to the bona fides of the relationship.

Interview preparation can be vital in facilitating a successful outcome at the United States Embassy, particularly in situations where the Thai fiancee or spouse has difficulty communicating in the English language or becomes easily nervous when dealing with government officials. That being said, many of a Thai fiancee’s fears regarding the Embassy can be laid to rest by a competent lawyer who can explain the situation and dispel any rumors or myths that a fiancee or wife has heard.

Assistance with 221 g Responses

Embassy officials are hard working individuals and at the Consular Service Section they process a large number of cases each year. Therefore, in the interests of speed and efficiency where there is a deficiency of documentation the consular officer will likely issue a 221 g denial. In many cases, fiancees or wives believe this to be a denial of the visa application and that the denial is final. In point of fact: 221g’s are denials, but they are denials pending further documentation. Therefore, if an applicant can cure the deficiency, then the visa will likely be issued. This is where retaining an attorney can be of great use. Currently, the US Embassy in Bangkok gives licensed American attorneys the privilege of presenting 221 (g) documentation on behalf of a visa applicant (the Embassy will not deal with visa agents or unlicensed so-called “lawyers”). This can be of great advantage particularly to the fiancee or spouse who does not live in Bangkok. By using an immigration attorney, it is generally unnecessary for the fiancee or spouse to return to Bangkok after the initial interview (this is not always the case, because consular officers can request that applicants return for a follow-up interview, as a practical matter, this rarely, if ever, happens).

Inadmissibility and Waiver

In cases where there exists a legal ground of inadmissibility, retaining an attorney is highly advisable particularly at the pre-interview phase. The reason for this is the fact that an attorney can prepare the waiver application in anticipation of the denial on a ground of inadmissibility. An I-601 application could be filed at virtually the same moment of denial. This would save time because the attorney is on the ground in real time and could interact with both the Embassy and the USCIS district office.

For more information, please see: US visa Thailand

(Nothing contained herein is an adequate substitute for a personal legal consultation. No Attorney-Client Relationship should be deemed to exist between author and reader.)

On June 3rd the United States Senate held hearings on the Uniting American Families Act for the first time. This was a historic event because it marked the first time in history that the Senate held hearing regarding Same-Sex Family Immigration matters.

For those unfamiliar with the UAFA, it is a bill that would add the term “Permanent Partner” to the list of those eligible for US Immigration benefits based upon a family relationship. Under the Defense of Marriage Act, the Federal government only recognizes marriage between a man and a woman. The UAFA creates a new category of family member, namely: Permanent Partners.

A note of importance, the President of AILA , The American Immigration Lawyers Association, submitted a statement to the committee supporting the enactment of the Uniting of American Families Act. An interesting quote from the statement:

“[S]ame sex partners of U.S. citizens and legal permanent residents are not recognized as family members under current immigration law, no matter how long-term or committed the relationship. This outdated and biased definition forces U.S. citizens and legal permanent residents to make unconscionable, life-altering decisions to either relocate to a foreign country or permanently separate from their loved ones.”

The hearing was punctuated by the heart wrenching story of an immigrant partner who was taken away by US Immigration officers and deported in full view of her partner and family members in the USA.  The witness said on the record, “I was put into a van with two men in yellow jump suits and chains and searched like a criminal, in a way I have only seen in movies.”

On a related topic, the American State Department recently changed internal rules in order to allow same-sex partners of State Department employees the same rights as different sex couples. US Secretary of State was quoted as saying such rule changes were the “right thing to do.”

Current Immigration law still does not allow American Immigration benefits for same sex loved ones of American Citizens, but the above changes in guidelines and proposed enactments would greatly equalize immigration law to the benefit of same sex couples. It should be noted that this proposed legislation would have no effect on the Defense of Marriage Act, nor would it have any effect with regard to gay marriage. Instead, it would grant immigration benefits to persons previously not qualified to receive them.

(Nothing contained herein is to be construed as legal advice. No lawyer/client relationship is created by reading this post)

The Thai legal system is based upon a system known as civil law. Unlike common law countries, civil law countries generally do not recognize marriages that are not duly registered. In a common law jurisdiction that upholds the concept of “common law marriage,” a couple that holds themselves out to the public as married can be deemed to be married by operation of law. This is not the case in Thailand where even having a wedding ceremony, referring to one another as man and wife, and sharing tax liability will generally not be enough for any court to recognize the existence of a marriage.

This marriage recognition system can have an impact with regard to US Immigration because one’s marital status in the eyes of USCIS can determine what type of visa a couple can apply for. There are some situations in which USCIS will recognize a customary marriage when the couple has no ability to register a marriage in the appropriate jurisdiction, this issue can arise in refugee marriages. However, this is the exception and not the rule. In most cases, USCIS will make determinations based upon actual marital registration status.

Therefore, if a couple has conducted a customary wedding ceremony (religious or otherwise) and has yet to register the marriage at the Amphur office, then it is likely that USCIS will view the couple’s status as unmarried. However, it may be wise to retain attorney assistance in cases where marital registration is an issue, because failure to properly explain the couple’s marital situation could lead to a visa denial by USCIS based upon the decision that the couple does not meet the statutory requirements for the visa category.

From a strategic point of view, marriage registration can be beneficial or disadvantageous depending upon where the US petitioner resides because residence will determine which USCIS office has jurisdiction. In some cases being married will qualify the couple for an Immigrant Spouse visa that would have a comparatively quick processing time because the US Citizen petitioner qualifies for overseas filing. In other cases, being unmarried may be an advantage because a K1 visa can be obtained. Regardless, decisions pertaining to marriage should not be made solely or the purpose of acquiring US Immigration benefits. It is always wise for couples to make informed and thoughtful decisions after careful research and investigation.

Issues regarding a couple’s relationship status will likely become even more complex should Congress decide to pass the Uniting of American Families Act which would entitle Permanent Partners of US Citizens to Immigration benefits.

(Please take notice: this blog post should be used for informational purposes only and should not be used in place of competent legal advice from a licensed attorney. An Attorney-Client Relationship is NOT created between the author and reader of this piece.)

Certain provisions of the Immigration and Nationality Act promulgated in 1952 create differing means and methods for family immigration to the USA. Of particular interest are the provisions specifically designed to provide visas and travel documents for foreign loved ones of Americans.

Pursuant to prior US immigration statutes and rules, an American Citizen with an alien fiancee was required to marry the alien loved one outside of the United States and subsequently petition for an Immigrant visa in order to obtain immigration benefits for the alien spouse. As time went by the number of United States Citizens marrying foreign nationals grew. As a result, the immigration caseload increased.

Over the years, the United States Congress has made efforts to ease the administrative burden shouldered by agencies involved in US Immigration. Concurrently, Congress has also passed measures designed to provide  more immigration options to those United States Citizens who have alien loved ones.

The K1 Fiance visa is an example of Congressional intent to assist bi-national couples. One major problem with the pre-K1 immigration regulations: what does a couple do if they cannot get married in the foreign fiancee’s home country? Prior to passage of the legislation creating the K1 visa category many couples found themselves unable to immigrate to the USA together if the non-US Citizen’s home country would not legalize the marriage.

These types of situations can be seen even today. In Southeast Asia, there are many countries that make restrictions upon marriage to foreigners. Burma (also known as Myanmar) has enacted stringent rules regarding marriage to foreigners. At different points in Cambodia’s history, there have been instances of government attempts to keep Cambodians from marrying non-Cambodians. In situations such as this, a K1 visa can be a godsend for couples because it allows them to obtain a US visa without the requirement of formalized marriage. Once present in the USA on a K1 visa the foreign fiancee can marry the American Citizen and submit an application for adjustment of status. After the adjustment of status application is approved, the foreign fiancee is given permanent residence.

In Thailand, a country that makes no specific provisions barring foreign nationals from marrying Thais, the K1 visa is often sought because the processing time is quick in comparison to the K3 visa or the Immigrant US Marriage Visa. However, the K1 is not necessarily the fastest option because sometimes locally filing an immigrant visa petition is the fastest method of visa acquisition.

(No attorney-client relationship is created between the author and reader of this post. This post is written and distributed for educational purposes only and is not a substitute for legal advice.)

Although it seems like a simple issue, discerning the difference between a fiancée and a wife for the purposes of US Immigration can be crucial, and oftentimes less than straightforward when looked at from the perspective of International law.

The reason for the unexpected ambiguity stems from the fact that different countries have different legal systems and as a result, there are different methods for legalizing marriages. The English common law is in place in the United States, as in many former British Colonies and current members of the British Commonwealth. As a result, in many of these countries the principle of “common law marriage,” has either been in previous existence under the law or is currently still good law. In either case, in common law countries, the concept of “common law marriage,” is a widely understood notion amongst laypeople.

In civil law countries, there is usually no history of judicial recognition of anything akin to a “common law marriage.” That being said, not all civil law countries deal with marital issues in the same way. There are instances where an otherwise “civil law” country will promulgate “common law,” legal mechanisms by statute (an example being where a civil law country adopts trust law via statute).

In countries that have no history of “common law marriage,” a marriage is only legalized upon compliance with whatever rules govern marriage formalization. For instance, in the Kingdom of Thailand a marriage is only legalized by registration at the local government office (known as an Amphur office in Thai). Failure to register a marriage results in a situation in which the couple may consider themselves married, but they are legally unwed. For more on this issue please see:  Marriage Registration Thailand

Deciding whether a couple is legally married is important from a US Immigration perspective because a couple’s marital situation can have a major impact upon their ability to obtain certain types of visas. Marital situation can also impact the processing time of a US visa. Therefore it is important to be clear on the couple’s marital situation upfront. In Thailand, for example, many couples engage in a ceremonial or customary wedding ceremony, but never formalize a marriage. Filing for a marriage visa rather than a fiancee visa can lead to a great deal of wasted time and resources because USCIS and the US Embassy are unlikely to grant the marriage visa because the couple is not legally married.

(Please be advised that all of the information contained in this writing is for educational use only and does not constitute legal advice. Legal advice should be obtained in a one-on-one consultation with a licensed attorney. No attorney client-relationship is formed between any reader of this piece and the author.)

The American State Department, as of May 24th, has begun offering benefits to same sex partners of American diplomats and State Department employees. This comes after many years of the US State Department refusing to grant benefits to same sex partners and spouses. The justification that the state department previously used was based upon the Defense of Marriage Act. State Department officials often sighted DOMA claiming that it precluded allowing benefits for same sex partners.

The current move made by the State Department signals a major shift in state department policy on the issue of same sex domestic issues. Of great import is the fact that among other benefits, same sex partners will be issued diplomatic passports along with their diplomat partner or spouse.

In a State Department memo circulated pursuant to this regulatory change Secretary of State Hilary Rodham Clinton hinted that this change was overdue. Secretary Clinton stated, “At bottom, the department will provide these benefits for both opposite-sex and same-sex partners because it is the right thing to do,”

This begs the question that if, at bottom, these benefits ought to be conferred because “it is the right thing to do,” then isn’t granting same sex couple’s US Family Immigration benefits the right thing to do as well? The Uniting of American Families Act is a piece of legislation that would allow US citizens to obtain US visas for their alien same sex partner.

In this situation, the US State Department has disregarded the spirit of the Defense of Marriage Act by conferring these benefits upon same sex partners and will likely prevail in doing so because offering these benefits is a prerogative of the Secretary of State and under the bailiwick of the executive branch of the United States government (Under the doctrine of Separation of Powers, there are certain areas in which each branch of government cannot be challenged by another branch).

The UAFA also subtly avoids the restrictions imposed by the Defense of Marriage Act by creating a new category of US Visa under the United States Immigration an Nationality Act. This new visa category would allow an alien to obtain a US visa based upon family relationship if the meet the definition of “permanent partner.”

As we have previously stated on this blog, the US Immigration implictions of the enactment of the Uniting of American Families Act would be a watershed for Same Sex immigration rights as well as a very interesting case study in conflict of laws.

For more information on US Immigration from Thailand Please see:

K1 Visa Thailand

Fiance Visa Thailand

K3 Visa Thailand

(Please note that the information contained herein is for educational purposes only and should not be used as a substitute for legal advice. No lawyer client relationship is formed between author and reader).

An issue that many Thai-American couples grapple with is that of deciding whether or not to register a marriage in Thailand or wait and conduct a marriage in the United States. This is an issue that can have a major impact on a Thai-American couple’s US Immigration options because United States Citizenship and Immigration Services as well as the US Embassy in Thailand view a couple with a registered marriage differently than a couple without a registered marriage. Also, a US Citizen’s marital status vis-a-vis a Thai Fiancee or Thai wife will affect the processing time for the type of visa being sought, and not in a way that most people expect.

The Irony of K1 Visas from Thailand: Why being Unmarried may be Beneficial

A counter intuitive aspect of K1 visas is the fact that they are generally a faster visa and immigration option than a marriage visa. This is due to the fact that there seems to be a lower case backlog of K1 visas at USCIS when compared to CR-1 and IR-1 Visas.  Also, the fact that a K1 visa is a non-immigrant visa might lead to less scrutiny from both USCIS and the US Embassy because the visa does not confer permanent residence, conditional or otherwise. This is not to imply that either adjudicators at USCIS or consular officers at the US Embassy in Bangkok are not fully conducting due diligence, but instead there seems to be an inherently lower level of scrutiny for non-immigrant visas when compared to immigrant visas. This is also true when comparing the K1 visa to a US tourist visa because the applicant for that visa must overcome the 2statutory presumption of immigrant intent. Since a fiance visa is a “hybrid visa” there is no need to overcome the presumption of immigrant intent threshold in order to be granted the visa, as with other non-immigrant visas.

Marriage Visas from Thailand

Some people who have already married in Thailand ask if it is possible to register a Thai divorce and subsequently apply for a K1 visa. Although technically feasible, the discretionary power of adjudicators in both USCIS and the Embassy in Bangkok could result in a finding that the relationship is not bona fide because the couple is divorced only to enjoy the benefit of faster processing times of the K1 visa over the US Marriage visas. For those married and residing in Thailand it may be possible to apply for an immigrant visa at the local USCIS office in Bangkok, in this situation marriage registration may be a boon to the Thai-American couple.

Thanks for reading, for more information please see: Marriage Registration Thailand or US Visa Thailand

(Please note: this writing is intended for informational purposes only and should not be utilized as a substitute for legal advice from a Licensed US Immigration Lawyer. No attorney client relationship is created between the author and any reader of this piece.)

The US-Thai Treaty of Amity is an agreement between the Kingdom of Thailand and the United States of America that provides benefits for Thai investors and businessmen in the USA and also provides economic benefits to Americans in Thailand. The most important benefit conferred by the Treaty of Amity is the right of Americans to form a Treaty of Amity Company. A Treaty of Amity Company is a corporate structure similar to a Thai limited company.

The major difference between a Thai limited company and an Amity Treaty company is the fact that an Amity Company can be one hundred percent owned by non-Thais provided the owners are American Citizens. Under Thai law there must be at least three shareholders, but one shareholder could virtually own the Amity Company outright by owning 99% of the shares in the company.  

The content written heretofore begs the question: why is American ownership such a big deal? For those unfamiliar with the Thai legal system, a statute known as the foreign business act stipulates that a Thai company must either be majority Thai owned or an application for a foreign business license will be necessary. Foreign business licenses are somewhat difficult to obtain. That being said, the Amity Treaty preceeds the Foreign Business act and its provisions supercede the foreign business act.

A major issue regarding the Treaty is the fact that it only applies to Americans. No other group of foreign nationals is accorded the same level of economic protection as that conferred upon Americans doing business in Thailand under the Thailand Treaty of Amity. As a result, many prospective business owners from nations other than the USA often ask if it is possible to utilize nominee American shareholders in a Thai company in order to meet the technical requirements of the US-Thai Treaty of Amity.

In theory, such a scenario was once possible. However, amendments to the foreign business act have made nominee shareholders expressly illegal. Also, the Foreign Business Office of Thailand has determined that only an American or a Thai is allowed to be the Managing Director of a company with protection under the US-Thai Amity Treaty.  The upshot of both of these rules is that, as a practical and legal matter, only Americans or Thais can own a majority position of a Thai company with Treaty benefits.

For more details about US-Thai Economic Relations please see: Amity Treaty Thailand

(Nothing herein is meant to act as in the place of competent legal advice from a licensed attorney. No Attorney-Client relationship shall be formed between the writer and any reader of this piece.)