Integrity Legal

For those who frequently read this web log will undoubtedly note that a frequent topic discussed within these pages is Comprehensive Immigration Reform. In a recent document promulgated by the Congressional Research Service and distributed by the American Immigration Lawyers Association (AILA), the matter of legal inadmissibility was discussed in the context of Comprehensive Immigration Reform. The following is a direct quotation from the document published by the Congressional Research Service (CRS) and distributed by AILA:

Legislation aimed at comprehensive immigration reform may take a fresh look at the grounds for excluding foreign nationals that were enacted in the 1990s. All foreign nationals seeking visas must undergo admissibility reviews performed by U.S. Department of State (DOS) consular officers abroad. These reviews are intended to ensure that they are not ineligible for visas or admission under the grounds for inadmissibility spelled out in the INA. These criteria are: health related grounds; criminal history; security and terrorist concerns; public charge (e.g., indigence); seeking to work without proper labor certification; illegal entrants and immigration law violations; ineligible for citizenship; and, aliens previously removed. Over the past year, Congress incrementally revised the grounds for inadmissibility. Two laws enacted in the 110th Congress altered longstanding policies on exclusion of aliens due to membership in organizations deemed terrorist.

Terrorism has been a key concern for American government officials across the entire spectrum of agencies associated with Immigration and travel to the United States. Public health and safety are also significant issues for American Immigration and Consular Officers. To quote the aforementioned publication further:

The 110th Congress also revisited the health-related grounds of inadmissibility for those who were diagnosed with HIV/AIDS. More recently, the “H1N1 swine flu” outbreak focused the spotlight on inadmissibility screenings at the border. Questions about the public charge ground of inadmissibility arose in the context of Medicaid and the state Children’s Health Insurance Program (CHIP) in the 111th Congress.

Influenza has been concerning to many health officials in recent years. However, for many the removal of HIV/AIDS from the list of diseases which can result in a finding of inadmissibility was a relief as many individuals who were previously inadmissible to the USA may have immediately become admissible after HIV/AIDS was no longer a legal grounds for finding someone inadmissible to the USA. This issue was especially acute in the LGBT community as HIV and AIDS issues seem to have a disproportionate impact upon individuals and couples within that community. The report went on to note that issues pertaining to legal inadmissibility are likely to be discussed in the context of proposed Comprehensive Immigration Reform legislation:

While advocacy of sweeping changes to the grounds for inadmissibility has not emerged, proponents of comprehensive immigration reform might seek to ease a few of these provisions as part of the legislative proposals. The provision that makes an alien who is unlawfully present in the United States for longer than 180 days inadmissible, for example, might be waived as part of a legislative package that includes legalization provisions. Tightening up the grounds for inadmissibility, conversely, might be part of the legislative agenda among those who support more restrictive immigration reform policies.

Many people are found inadmissible to the United States every year. Among those found inadmissible are those who are unable to seek a remedy in the form of either an I-601 waiver or an I-212 waiver application for advance permission to reenter the USA. Individuals who have been found inadmissible and cannot seek a waiver are colloquially referred to as being unwaivably excluded from the United States. Bearing this in mind, many findings of legal inadmissibility can be remedied through use of a waiver. That said, the waiver process and the standard of proof for obtaining a waiver can be difficult to overcome. For this reason, many bi-national couples opt to utilize the services of an American immigration attorney to assist in matters related to United States Immigration. It is always prudent to ask for the credentials of anyone claiming expertise in United States Immigration law as only a licensed American attorney is permitted to provide advice, counsel, and representation in pending matters before the United States Citizenship and Immigration Service (USCIS), the Department of Homeland Security (DHS), and the American State Department.

For related information please see: US Visa Denial.

นอกจากนี้ ภาษากฎหมายที่นักกฎหมายฝ่ายรัฐบาลใช้ในศาลในการที่จะแบ่งแยกคำตัดสินที่เกี่ยวกับการค้นหาข้อเท็จจริงโดยอัยการเป็นไปด้วยความระมัดระวังและลบล้างคำวินิจฉัยทั้งหมดจากความเห็นทางกฎหมาย นั่นเป็นการแปลความที่ไม่สมเหตุสมผลตามพระราชบัญญัติคนเข้าเมืองและสัญชาติซึ่งมองไปข้างหน้าถึงมาตรฐานของข้อเท็จจริงการพิจารณากระบวนการเพิกถอน

จากการรวบรวมข้างต้น สถานะของรัฐบาลสหรัฐอเมริกาในการที่จะปฏิเสธคำขอ I-130 คือ ในพฤติการณ์ที่ศาลไม่สามารถที่จะทบทวนคำวินิจฉัยที่วินิจฉัยโดยผู้มีอำนาจในหน่วยบริการคนเข้าเมืองและพลเมืองของสหรัฐอเมริกา (USCIS) เป็นประเด็นที่น่าสนใจว่า ศาลไม่ถูกชักจูงโดยข้อโต้เถียงและการทบทวนคำวินิจฉัย แม้แต่คำคัดค้านของรัฐบาล

สำหรับผู้ที่ไม่คุ้นเคยกับกระบวนการทำวีซ่าสหรัฐอเมริกา คำขอ I-130 นั้นเป็นขั้นตอนแรกที่จะทำให้คนต่างด้าวมีความเกี่ยวพันนกับสหรัฐอเมริกา คำขอนั้นใช้เพื่อผู้ที่ประสงค์จะพาคู่หมั้นชาวต่างชาติไปสหรัฐอเมริกา ในกรณีที่คำขอ I-130 ได้รับการอนุมัติ เรื่องที่ได้รับการอนุมัตินั้นจะถูกส่งต่อไปยังศูนย์บริการทางวีซ่า (NVC)ซึ่งเป็นตัวแทนภายใต้กงสุลสหรัฐอเมริกาในโฮจิมินห์ซิตี้ทาง NVC ในขณะเดียวกัน คู่หมั้นชาวไทยมีแนวโน้มที่จะดำเนินการในการขอวีซ่าโดยติดต่อทางสถานทูตสหรัฐอเมริกาในกรุงเทพฯโดยทางศูนย์บริการวีซ่า คู่หมั้นชาวจีนอาจจะดำเนินการในสถางกงสุลสหรัฐอเมริกาในจีนหรือสถานทูตสหรัฐอเมริกาในปักกิ่ง เช่นเดียวกันกับอินเดีย ภารกิจของสหรัฐอเมริกาในทั้งสองประเทศมีการเปลี่ยนแปปลงที่สำคัญเพื่อที่จะอำนวยความสะดวกสำหรับผู้ที่จะทำวีซ่าหลังจากกระบวนการของ NVC

ประเด็นเกี่ยวกับความเห็นทางกฎหมายในทางกฎหมายคนเข้าเมืองเป็นเรื่องที่ซับซ้อนเรื่องหนึ่ง ดังนั้นองค์ประกอบต่างๆของกระบวนการทำวีซ่าอาจจะมีความหลากหลายในประเด็นทางกฎหมายขึ้นอยู่กับพฤติการณ์ในแต่ละเรื่อง สำหรับเหตุผลนี้คู่สองสัญชาตินั้นควรเลือกที่จะให้ทนายความช่วยจัดการในการขอยื่นคำขอวีซ่าและผู้เชี่ยวชาญที่ได้รับอนุญาตนั้นสามารถที่จะดำเนินการทุกขั้นตอนและจัดการให้เป็นไปตามกระบวนการขอวีซ่าได้อย่างครบถ้วน

To see this information in English please refer to the previous blog posting.

In an interesting recent decision by the United States Circuit Court of Appeals for the 8th Circuit the Court found that they indeed have the prerogative to review and rescind an I-130 denial. The following is a direct quotation from the Court’s opinion which was distributed by the American Immigration Lawyers Association (AILA):

In addition, interpreting the statutory language as the government advocates would force this court to classify every decision involving fact-finding by the Attorney General as discretionary and would remove all such decisions from judicial review. That is not a reasonable interpretation in light of the provisions of the Immigration and Nationality Act itself setting forth our standard of review for factual determinations in removal proceedings.

As one could likely gather from the above cited quote, the United States government’s position regarding denial of I-130 petitions basically could have created a situation in which Courts would not be able to review the decisions made by adjudicators at the United States Citizenship and Immigration Service (USCIS). It was interesting that the Court was not persuaded by this argument and reviewed the decision notwithstanding government objection.

For those who are unaccustomed to the US visa process, the I-130 petition is generally the first step in bringing an alien immediate relative to the USA. This petition is often utilized by those wishing to bring a foreign spouse to the United States. In cases where the I-130 petition is approved, the case file is usually forwarded on to the United States National Visa Center (NVC) which is an agency under the jurisdiction of the American State Department. The NVC acts as a sort of clearinghouse for visa applications. Therefore a Vietnamese spouse will likely process his or her visa application at the United States Consulate in Ho Chi Minh City via the NVC. Meanwhile, a Thai spouse will likely process his or her visa application through the US Embassy in Bangkok by way of the National Visa Center. Chinese spouses may process through one of the many US Consulates in China or the US Embassy in Beijing. The same can be said for India as the US Missions in both countries have dramatically changes Consular Processing procedures to provide more convenient options to American visa seekers after NVC processing.

The issue of judicial review in matters pertaining to United States immigration is a complicated one. Therefore, differing aspects of the US visa process may be subject to varying levels of judicial review depending upon the circumstances of a given case. For this reason some bi-national couples opt to retain attorney assistance in processing visa petitions and applications as a licensed professional can provide significant insight into overall processing procedures and provide strategies for streamlining the visa process.

Fore related information please see: K1 Visa Thailand, IR1 Visa Thailand, or CR1 Visa Thailand.

The administration of this blog would like to take this opportunity to wish His Majesty King Bhumibol Adulyadej of Thailand a very Happy 83rd Birthday.

Long Live The King!

Those who read this blog on a regular basis will no doubt realize that when new information regarding Consular processing comes out this administration tries to post it in an effort to provide insight to those processing a visa application through the relevant Post. It recently came to this blogger’s attention that the United States Embassy in Manila, Philippines is changing their protocols for Immigrant visa processing. The following is a brief quotation from the official website of the US Embassy in Manila:

Effective December 1, 2010, various changes to immigrant visa services are as follows:

• Immigrant visa applicants whose appointments have not been scheduled through the National Visa Center (NVC) (i.e., immigrant visa petitions approved by the U.S. Citizenship and Immigrations Services Manila) may request a visa appointment by visiting the U.S. Embassy in Manila’s Visa Information and Appointment Service online at http://www.ustraveldocs.com/ph or by calling (632) 982-5555. The Visa Information and Appointment Service is open Monday through Friday, from 8:00 a.m. to 8:00 p.m. (Manila time), except on U.S. and Philippine holidays. Callers in the U.S. should call (214) 571-1600, from 7:00 p.m. to 7:00 a.m. (Eastern Standard Time). Callers are able to speak with an English-, Tagalog-, Ilocano- or Cebuano-speaking operator.
• Visa Information and Appointment Service representatives can provide information on visa appointment-related inquiries only. Inquiries on a specific case may be directed to the Immigrant Visa (IV) Unit by e-mail at [email protected] or by fax at (632) 301-2591. Petitioners and applicants may also call the IV Inquiry line at (632) 301-2000, extension 5184 or 5185 during normal business hours.
• Immigrant visa applicants who have been scheduled by the NVC for a visa appointment at the Embassy are required to visit the online appointment website to register their delivery address.
• K visa applicants who have been notified by the Embassy to prepare for their interview, must pay the visa application fee of $350 before they can request a visa appointment via the online appointment website or the Visa Call Center
  

It should be noted that the above quotation does not encompass all of the information provided upon the official website. Those interested in obtaining further information are encouraged to correspond directly with either an American immigration attorney or the US Embassy in the Philippines.

The Consular Processing phase is usually the last phase of the US visa process for those with immigrant intent. Although in certain cases, a 221g refusal may be issued if the adjudicating Consular Officer feels that further documentation is required to process an application. Furthermore, a visa application may be denied if it is found that a legal grounds of inadmissibility exists in a given case. Under such circumstances, it may be possible to remedy the denial through use of an I-601 waiver of inadmissibility.

In American family based visa cases, the Immigrant Visa Unit of a US Consulate abroad is responsible for the adjudication of a visa application for those seeking a K1 visa, K3 visa, CR-1 visa, or an IR-1 visa.  Those seeking a non-immigrant visa such as a B1 visa (US Business Visa), B2 visa (US Tourist Visa), F1 visa (US Student Visa), or J1 visa (Cultural Exchange Visa) must interview with an adjudicator at the Non-immigrant visa unit of the Post with Consular jurisdiction to adjudicate a visa application.

For related information please see: US Embassy Philippines.

The EB-5 Visa has been a frequently discussed topic on this blog over the past few weeks. This may be mostly due to the fact that the United States dollar has been weakening compared to other currencies in Asia as a result of the United States Federal Reserve’s “quantitative easing” policy. In the case of Sri Lanka currency fluctuations are less severe against the US dollar when compared to other currencies in Southern Asia. Bearing this in mind, the EB-5 visa still remains an attractive travel document to many who dream of residing in the United States of America.

The EB5 visa was designed as an Immigrant Investor visa for those making a substantial investment in the USA. Those interested in the EB-5 visa should be aware that the minimum investment is 500,000 United States dollars for targeted programs. Meanwhile, so-called “un-targeted” programs require an investment of 1 million dollars. In any case, those thinking about making an investment in the United States in order to qualify for immigration benefits should consult with an American attorney in order to ascertain whether or not an investment qualifies for immigration benefits under the EB-5 program. Monetary investment is not the only requirement which must be met in order to receive immigration benefits as the prospective immigrant must still file an immigration petition as well as a visa application. Both the immigration petition and visa application require that the prospective immigrant adhere to the relevant provisions of the United States Immigration and Nationality Act. Therefore, merely having capital to invest in the USA is not necessarily sufficient to obtain EB-5 visa benefits.

There are some individuals who are under the mistaken impression that the United States has a Citizenship by Investment program. In point of fact, the United States of American does not routinely grant Citizenship to those who merely invest money in the USA. However, the EB-5 visa could be viewed as a “path to Citizenship by investment.” This is due to the fact that those who enter the USA on an EB-5 visa and receive Lawful Permanent Resident (LPR) status may later be eligible to apply for naturalization to United States Citizenship provided the statutorily prescribed physical presence requirement is met along with other criteria.

Some individuals opt to retain the services of an attorney to assist with the EB-5 visa process. This may be prudent as many laypeople are unaccustomed to dealing with the United States Immigration system which can sometimes prove to be both byzantine and complicated. Those seeking an attorney are well advised to check the credentials of anyone claiming expertise in US Immigration matters as only an attorney licensed to practice law in an American jurisdiction is entitled to provide advice, counsel, and representation before the United States Citizenship and Immigration Service (USCIS) and the Department of State.

For related information please see: EB-5 Visa Sri Lanka.

Those who read this blog regularly will likely be aware that the administration of this blog routinely posts about issues related to the Immigrant Investor Visa colloquially referred to as the EB5 Visa. Recently, this author discovered an interesting piece on the internet which was written about the United States dollar versus the Singapore Dollar. to quote directly from the TheMalaysianInsider.com:

the Singapore dollar is forecast to strengthen to 1.356 against the US dollar by the end of the year, a central bank survey showed…The currency forecast translates into an appreciation of 3.35 per cent from 1.403 to the US dollar at the end of 2009.

Under certain circumstances, a strengthening local currency can be problematic as exporters generally wish to see a strong US dollar when trading with the US. However, those wishing to invest money into an enterprise in the United States of America may find that a strengthened local currency is a benefit. In the case of the EB-5 visa this is certainly the case as those who hold assets in strong foreign currency may find that the real cost of investing in the USA is cheaper compared to costs in the past due to a comparatively weak American dollar.

The EB-5 visa program requires the prospective immigrant investor to make a substantial investment in the USA. Prospective Immigrant Investors should be prepared to invest a minimum of $500,000 into an eligible investment program in the USA. Should an immigrant investor make the required investment, adhere to relevent regulations, and meet other eligibility criteria, then an EB-5 visa may be issued. Once in the USA, the EB-5 visa holder may one day be eligible to apply for naturalization to United States Citizenship. United States Citizenship is a highly sought after benefit as there are many privileges and rights which attach to an individual who has become an American Citizen.

It should be noted that there are a limited number of EB-5 visas available each year. To quote directly from the Beacon, the official web log of the United States Citizenship and Immigration Service (USCIS):

The Immigrant Investor Program, also known as “EB-5,” was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by immigrant investors by creating a new commercial enterprise or investing in a troubled business. There are 10,000 EB-5 immigrant visas available annually. In 1992 and regularly reauthorized since then, 3,000 EB-5 visas are also set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth.

In many ways, the EB-5 visa program is a “win-win” situation as the alien is granted Lawful Permanent Residence (Green Card status) and the United States economy receives the benefit of foreign investment as well as the addition of an enthusiastic immigrant who is eager to contribute to America’s economic future.

For more information please see: EB-5 Visa Singapore.

Those who frequently read this blog are likely to note that we frequently discuss issues surrounding Consular processing of US visa applications. In some cases, a visa applicant is refused a visa, but issued what is commonly referred to as a 221(g) form. The term “221g” refers to section 221(g) of the United States Immigration and Nationality Act. Under this provision of the Immigration and Nationality Act, a Consular Officer adjudicating a visa application may refuse to issue a visa if the adjudicating Consular officer finds that the application is somehow deficient of documentation. Consular Officers are basically tasked with the responsibility of conducting due diligence regarding a visa applicant’s subjective intentions. Therefore, in a K1 visa interview the Consular Officer may be concerned with the Cambodian applicant’s subjective intentions regarding the K1 visa petitioner.

There is some debate as to the legal ramifications of a 221g especially in the context of the United States Visa Waiver Program. The American visa waiver program allows certain foreign nationals to enter the USA without a visa provided those individuals register on the Electronic System for Travel Authorization (ESTA). Although Cambodia is not currently a participating country in the Visa Waiver program it should be noted that a 221g refusal issued by a US Consulate or US Embassy abroad should be disclosed in the ESTA system when seeking travel authorization online. Therefore, a 221g refusal is effectively treated as a “denial” by the Department of Homeland Security which should be noted by anyone seeking American immigration benefits at an American Mission abroad since such a development could have an adverse impact upon one options at a later date.

Many are under the mistaken impression that a 221(g) refusal cannot be remedied. In point of fact, this is not the case as some 221g refusals simply require further documentation before a Consular Officer is prepared to make an adjudication in the underlying application. That said, in some cases, a 221g could evolve into a legal finding of inadmissibility which is an outright visa denial. In such cases, a visa applicant may be able to have the legal grounds of inadmissibility waived through use of an I-601 waiver of inadmissibility. That said, such waivers are adjudicated by the United States Citizenship and Immigration Service under an “extreme hardship” standard of review. This “extreme hardship” standard can be difficult to overcome for some. In any event, many couples find that the assistance of an American attorney can be beneficial during the US visa process or the I-601 waiver process as such an individual can provide insight into the process and advocate on behalf of the petitioner and beneficiary. Furthermore, some find that an attorney’s assistance can result in smoother overall processing of visa applications as such an individual can foresee issues which may arise in a given case and attempt to deal with such issues before they become a problem.

Receiving a 221g refusal letter after the visa interview can be worrying, but in some cases the issue can be resolved through better understanding of the adjudication process and relevant United States Immigration law. Those who receive a 221g refusal at the US Embassy in Cambodia are likely required to follow up within 1 year of issuance lest the visa application be deemed to have been abandoned.

For related information please see: US Visa Cambodia.

Those who are regular readers of this blog will no doubt be aware that the issue of 221(g) denials promulgated in relation to visa applications brought before at US Missions, Embassies, and Consulates outside of the United States can be very concerning for those seeking American Immigration benefits for a foreign loved one. In the case of the US Embassy in Vietnam, most US family visa cases are processed out the US Consulate in Ho Chi Minh City. It would seem that the American Consulate in HCMC is considered by State Department officials to be a “high volume” Post as a significant number of visa applications are adjudicated in that jurisdiction each year. Meanwhile, as is the case for any US Mission abroad, the officers at the US Consulate in HCMC take visa fraud seriously and therefore heavy scrutiny is placed upon pending visa applications in an effort to ensure that those receiving visa benefits are legally entitled to such benefits. Furthermore, Consular Officers also review US family visa applications very carefully in order to ascertain whether or not a prospective foreign beneficiary has the requisite subjective intent. Subjective intent is often of great concern in K1 visa applications as the applicant must have a genuine intention to marry their American fiance within 90 days of entering the USA.

The culmination of the US visa process is usually the visa interview which is generally conducted at the US Mission with Consular jurisdiction to adjudicate the visa application. However, in some cases, a Consular Officer may feel that further documentation is necessary in order to complete the adjudication. The American State Department refers to the 221(g), which is a reference to section 221(g) of the United States Immigration and Nationality Act, as a refusal although for purposes of the Department of Homeland Security the 221g is considered a denial. This can be an important distinction for foreign nationals holding the passport of a country which participates in the US Visa Waiver Program as the United States Customs and Border Protection Service (USCBP) considers 221g refusals to be denials which must be disclosed by travelers through the Electronic System for Travel Authorization (ESTA). It should noted that Vietnam is not currently a participant in the Visa Waiver Pilot Program.

In some cases, 221g denials are highly complex and may cause frustration to the applicant and/or their American counterpart. Some find that attorney assistance can be beneficial. An American Immigration attorney can provide insight into the overall process and also assist in making a follow-up with the US Consulate regarding a 221g denial. Furthermore, American Immigration attorneys based in South East Asia can deal with such matters before the Consulate in real time. This can be especially beneficial if the 221g evolves into a situation in which the visa application is denied due to a legal finding of inadmissibility. This can sometimes occur and in such an event the finding of inadmissibility may only be overcome through use of an I-601 waiver. In some cases, there may be no remedy if the applicant is found inadmissible for reasons that cannot be waived. Those thinking about filing for immigration benefits should always be aware that putting on the best case at the outset is the most efficient way of attempting to ensure visa issuance.

For related information please see: US Visa Vietnam or US fiance visa.

Recently, this blogger was reading a report from the Department of State regarding the statistics pertaining to the United States Visa Process. To quote the report directly:

Immigrant visa issuances during fiscal year 2011 are limited by the terms of INA 201 to no more than 226,000 in the family-sponsored preferences and 140,000 in the employment-based preferences. (Visas for “Immediate Relatives” – i.e., spouses, unmarried children under the age of 21 years, and parents – of U.S. citizens are not subject to numerical limitation, however.) It should by no means be assumed that once an applicant is registered, the case is then continually included in the waiting list totals unless and until a visa is issued. The consular procedures mandate a regular culling of visa cases to remove from the count those unlikely to see further action, so that totals are not unreasonably inflated. If, for example, a consular post receives no response within one year from an applicant to whom the visa application instruction letter (i.e., the consular “Packet 3″ letter) is sent when the movement of the visa availability cutoff date indicates a visa may become available within a reasonable time frame, the case is considered “inactive” under the consular procedures and is no longer included in waiting list totals.

It has be routinely noted on this blog and elsewhere online that the American visa process is somewhat restrictive when it comes to non-immediate relative petitions as there are limited numbers of visas available to the immediate family of American lawful permanent residents and the non-immediate relatives of American Citizens. That said, this was not the portion of the above citation that this author felt was noteworthy. Instead, a central issue for this blogger is that of “culling visa cases”. For those who do not have a great deal of experience dealing with US Immigration matters it may seem rather heavy handed to simply cancel a visa file. However, it should be pointed out that a US Embassy or US Consulate abroad is responsible for reviewing, adjudicating, and processing a large number of visa applications each year. Therefore, in the name of organization and efficiency it is often necessary for cases to be removed from the processing queue lest the whole system become overloaded and inefficient.

Those wishing to obtain a visa to the USA should be cognizant of the fact that failure to follow up with the US Mission with Consular jurisdiction could result in the canceling of one’s visa application thereby resulting in an end to the entire proceeding. This is also true for those who receive a 221g denial as failure to respond within one year of the denial’s issuance could result in the culling of the case file.

Some find that the assistance of an American Immigration attorney can be highly beneficial as such an individual can provide insight into and assistance with the United States visa process. Furthermore, American attorneys working overseas can provide real time assistance with Consular processing at American Missions abroad.

For related information please see: Consular Processing.