Integrity Legal

Posts Tagged ‘221 (g)’

30th November 2010

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.

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16th April 2010

For related information in English please see: Request for Evidence.

ในกระทู้คราวก่อน เราได้พูดถึงคำขอวีซ่าเบื้องต้นสำหรับคนรักต่างชาติของบุคคลสัญชาติอเมริกัน ในกระทู้นี้เราจะพูดถึงสิ่งที่ต้องทำในกรณีที่คุณได้รับแบบขอหลักฐานเพิ่มเติมจาก USCIS หลังจากที่ USCIS ได้รับคำขอของบุคคลสัญชาติอเมริกัน ก็จะส่งหนังสือแจ้งที่เรียกว่า Notice of Action 1 หรือ NOA 1 ให้ สำหรับคำขอวีซ่าที่ประสบความสำเร็จก็จะมีการส่ง Notice of Action 1 ตามด้วย Notice of Action 2 หรือหนังสือแจ้งการอนุมัติ อย่างไรก็ตาม ยังคงมีกรณีที่ USCIS เรียกเอกสารเพิ่มเติม ในกรณีที่เรียกหลักฐานเพิ่มเติม (RFE ) ส่วนใหญ่มักเกิดมาจากการที่เอกสารที่ยื่นไปนั้นใช้ไม่ได้ ซึ่งเป็นเหตุผลที่ว่าทำไมต้องยื่นเอกสารที่มีความชัดเจนในการยื่นคำขอวีซ่าต่อ USCIS

เพื่อแก้ปัญหาการได้รับแบบเรียกหลักฐานเพิ่ม คู่รักหลายๆคู่เลือกใช้บริการทนายความด้านกฎหมายคนเข้าเมืองเพื่อช่วยยื่นคำขอวีซ่าให้ ทนายความที่มีประสบการณ์สามารถทำนายได้ว่าเจ้าหน้าที่คาดหวังจะดูเอกสารอะไรในการที่จะพิจารณาคำขอให้ อย่างไรก็ตามการจ้างทนายไม่ได้การันตีว่าคุณจะไม่ได้รับแบบเรียกขอหลักฐานเพิ่ม แต่ถ้าคุณได้รับแบบดังกล่าว ทนายความก็สามารถดำเนินการแทนคุณได้อย่างมีประสิทธิภาพ

แบบเรียกขอหลักฐานเพิ่มจะบอกว่าเอกสารอะไรที่ขาดไปหรือใช้ไม่ได้ หลังจากที่ได้ระบุตัวเอกสารแล้ว เจ้าหน้าที่จะพิจารณาว่าคุณจะแก้ปัญหานั้นได้อย่างไรและจะมีกำหนดยื่นเอกสารภายในระยะเวลาเท่าไรโดยการส่งคำขอเอกสารเพิ่มเติมให้แก่คุณ

อนึ่ง RFE ก็คล้ายๆกับแบบปฏิเสธวีซ่า 221 (g) จากสถานทูตสหรัฐ สาเหตุที่มันเหมือนกันก็เพราะว่าผู้ขอวีซ่าต้องยื่นเอกสารที่ถูกร้องขอก่อนที่จะมีการอนุมัติให้ดำเนินการใดๆต่อไปได้ ความต่างก็คือ เจ้าหน้าที่ที่ออกแบบคำขอ ในขณะที่ แบบ 221g นั้นออกโดยเจ้าหน้าที่สถานทูตแต่ แบบขอหลักฐานเพิ่มเติมออกโดยเจ้าหน้าที่กระทรวงความมั่นคง ในกรณีทั้งสองเอกสารที่ถูกร้องขอเพิ่มเป็นไปเพื่อประกอบการพิจารณาเพื่อให้มั่นใจว่าผู้รับผลประโยชน์ในคำขอวีซ่าสมควรได้รับสิทธิประโยชน์จริง

ในกรณีคำขอวีซ่า K1 เจ้าหน้าที่มักเรียกหลักฐานที่แสดงความสัมพันธ์ที่แท้จริงหรือสถานภาพของฝ่ายใดฝ่ายหนึ่ง ในกรณีคำขอวีซ่า K3 หรือ CR1 เจ้าหน้าที่มักขอหลักฐานยืนยันสถานภาพสมรสของคู่รักหรือสถานภาพของบุคคลก่อนการสมรสจะมีขึ้น

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6th November 2009

The United States visa waiver program, not to be confused with an I-601 waiver, allows citizens from certain countries to enter the United States of American without obtaining a visa prior to arrival. In recent years the United States government has implemented ESTA, also known as: the Electronic System for Travel Authorization. ESTA requires that travelers wishing to enter the country on a visa waiver inform the US Immigration authorities prior to arrival so that a pre-screening can be conducted. The United States Department of Homeland Security’s Customs and Border Protection (CBP) Service is tasked with monitoring those seeking travel clearances using the ESTA system. Recently it has been reported by the American Immigration Lawyers Association (AILA) that 221g denials must be reported in the ESTA form, to quote AILA directly:

“CBP recently informed AILA that it, after consultation with the Department of State (DOS), is classifying all §221(g) actions on visa applications as visa “denials.” Thus, Visa Waiver Program (VWP) applicants, who are subject to INA §221(g) refusals, should answer affirmatively in their ESTA applications that they have been denied a visa. This suggestion applies even if the reason for the refusal is due to consular administrative processing. If VWP travelers do not disclose such a “denial” on their ESTA applications or provide an update regarding such “denials,” they may have their ESTA registration rejected or be sent to secondary inspection and potentially refused entry when they apply for admission to the United States.”

This is important to note for those originating from a country participating in the US visa waiver program. For example, if the foreign fiancee of a US Citizen has been issued a 221g with regard to a K1 visa application, then that 221g must be disclosed as a denial on the ESTA form if said fiancee intends to visit the US and the foreign fiancee’s home country participates in this program.

As AILA’s article went on to point out, the Department of State does not even consider 221(g)’s to be outright denials,

Technically, the Foreign Affairs Manual (FAM) classifies a §221(g) action as a visa “refusal,” but DOS explicitly retains authority to “reactivate” the visa application upon receipt of required documents or completion of a government mandated administrative clearance. See 9 FAM 41.121 N2.4.

This situation is a classic example of two different government agencies taking a differing view of the same situation. The Department of State seems to view 221g refusals as administrative refusals to issue a visa without further documentation while the Department of Homeland Security seems to view such refusals as US visa denials that could be viewed as grounds for denying a person’s subsequent entry into the USA.

This issue will likely not be particularly problematic in the Kingdom of Thailand as Thailand is not a country participating in the visa waiver program, but for others around the world this issue could lead to problems entering the USA.

For those in this situation, it is always advisable to be honest, but it may be possible to explain the situation by answering “yes” to the question: Have you ever been denied a U.S. visa or entry? After answering in the affirmative there should be space to explain. Therefore, the applicant probably should note that the denial was: a 221(g), at the Embassy or Consulate (example: US Embassy Bangkok, US Consulate Chiang Mia, US Embassy Burma, etc.),  and the reason for the “denial” (example: Embassy conducted administrative processing, Consulate requested further documentation, etc).

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28th June 2009

US Immigration from Thailand can be a complex and multifaceted process. Compiling Immigration forms and  documentation can be an arduous task for an American Citizen who understands the English language fluently. This difficulty is compounded when one takes into account the fact that a language barrier and 12 hour time difference can slow the visa obtainment process immeasurably. In some cases, the Thai fiancee must deal with Thai government offices, which can be frustrating and confusing depending upon the office in question.

In a previous post we discussed how retaining a US Immigration Lawyer can be highly advantageous for those seeking to obtain a US visa from Thailand. An American attorney on the ground in Bangkok can expedite the visa process by assisting a Thai fiancee with the US Immigration forms and 221 g follow up documentation at the US Embassy Thailand. Many American Citizens enjoy the peace of mind that comes from knowing a US visa lawyer is assisting their Thai loved one in real time.

That being said, there are certain aspects of the US visa process where a Thai attorney can be a boon to both the American client and the Thai fiancee. The first instance in which a legally trained Thai who is fluent in English can be useful is document translation. Thai legal documents that are pertinent to Visa obtainment should be translated by one with both a fluency in English and a familiarity with Thai law.  Further, some documents that are quite common in Thailand, have no analogous counterpart in the American common law system. A lack of familiarity with Thai legal documentation can create confusion and delay for visa cases submitted and processed by American citizens who opt not to retain representation. Therefore, a Thai attorney’s expertise with Thai legal documents can be essential to an expeditious visa processing time frame. Requests for Evidence (RFE) from USCIS and 221 g denials are far less common where the petitioner and beneficiary have opted to retain a firm that employs Thai and American attorneys.

A Thai Attorney can be of real assistance when it comes to dealing with government offices because they are familiar with bureaucratic protocol and can speak to the Thai officers in their own language.

A Thai attorney can assist an American attorney with preparing the applicant for the visa interview in Bangkok.  This preparation helps the fiancee or spouse feel more comfortable about the impending interview and also will make the interview proceed more quickly because the Thai is given a “heads up.”

A Thai attorney can be of great assistance in US Immigration matters, but they will not be able to accompany a Thai fiancee to the Visa interview at the US Embassy in Bangkok. No one is allowed to accompany a Thai visa applicant to the visa interview (this includes the US Citizen spouse or fiancee). With the large caseload processing through the American Embassy in Bangkok, the waiting room cannot accommodate all of the relatives of those seeking US Visas.

(Please note: the content contained herein is intended for informational purposes only. No attorney/client relationship is created by reading this post.)

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18th June 2009

Hiring an Immigration attorney is a decision that each couple makes based upon their unique set of circumstances and that decision should be made after careful review and research. That being said, when the decision is made that a US visa lawyer is necessary,  sometimes couples are unwittingly duped into hiring a non-licensed “immigration consultant” or “visa agent.” In even worse situations, the couple believes that they are actually retaining the services of a licensed lawyer when in fact they are dealing with someone who has never completed formal legal training or been licensed to practice law.

Form G-28 is a required form that must be submitted to the United States Citizenship and Immigration Service (USCIS) when the initial visa application is sent to the USCIS Service Center. Basically, the G-28 puts the United States government officers working at USCIS on notice that an attorney will be representing the petitioner, beneficiary, or (more common in family base cases) both parties. Further, the US Embassy in Bangkok will currently allow attorney’s to present 221g follow up documentation provided a G-28 form has been signed by the Beneficiary and the attorney can produce credentials showing that they are in fact licensed to practice law in at least one United States jurisdiction.

One of the convenient aspects of hiring an attorney from the point of view of the United States Citizen petitioner and the Thai fiancee Beneficiary is the fact that once the attorney enters his or her appearance, then most, if not all correspondence, will be sent to the attorney’s office.

Also, the G-28 acts as a litmus test to determine if the person or organization one is dealing with is an actual attorney or law firm. USCIS has made regulations which stipulate that only attorneys and non-profit organizations are allowed to represent clients in United States Immigration matters. With regard to non-profit organization, these types of institutions are defined as those like the Red Cross or other non-governmental refugee organizations. In circumstances where a “representative” is used who is not a licensed attorney, USCIS has stated that the representative must take little or nothing with regard toa fee. This provision seems truly to have been designed with organizations assisting indigent refugees in mind.

On the G-28 form, the attorney, petitioner, and beneficiary will need to affix their signatures. The attorney will also place his or her state of licensure on the form. In the case of the K-1 visa application, the attorney will also place his or her G-28 number on the form I-129f.

For further information please see:

K1 Visa

K3 Visa

(Please be on Notice: this piece is not intended to be regarded as a substitute for legal advice. Please seek legal advice from a licensed attorney. This post creates no lawyer-client relationship between the parties writing or reading it.)

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12th May 2009

For general information about problems with a Us visa application please see: US Visa Denial Thailand.

The process of obtaining a visa for a loved one to the United States can be long and complicated.  At the end of the process, the last thing a prospective applicant wants to receive is a rejection and denial of the visa application. However, this can occur and in situations in which it does occur there are remedies. In other posts on this blog, the topic of waivers of inadmissibility has been discussed. This post will briefly recap the topic and add some new information about where a waiver application can filed and clear up confusion about what types of waivers exist under current legislation.

IMBRA Waiver with USCIS

One point of confusion that I have heard from prospective visa petitioners involves the IMBRA (International Marriage Broker Regulation Act). Pursuant to the IMBRA,  one must obtain a waiver in order to file multiple K1 petitions within a two year period. Although this provision denotes a waiver requirement for a multiple filer of K1 visas, this type of waiver is contemporaneously with the I-129f application for Fiance Visa. (It would be prudent to consult with an Immigration attorney if you believe you may be subject to multiple filer restrictions under IMBRA).

US Waivers of Visa Denial at the US Embassy in Bangkok, Thailand

Should the visa be denied at the US Embassy in Bangkok, then one must first decipher the type of denial. Technically a 221 g refusal is a visa denial, but from a practical standpoint it is merely a visa denial pending further documentation or information. Therefore, it is possible to cure whatever deficiencies exist and ultimately obtain the visa.

Sham Relationship or Marriage

If the consular officer makes a decision that a marriage of fiance relationship is not genuine, then the visa could be denied and that decision is not subject to waiver or appeal. This is why proving up the legitimacy of a relationship or marriage at the US Embassy in Bangkok is so important.

Consular Finding of Legal Inadmissibility

If the consular officer finds that the applicant for a visa is legally inadmissible then the visa will be denied, but the finding of inadmissibility may be remedied through the approval of a waiver of inadmissibility (most likely an I-601 waiver application).

Where is the Waiver Application Filed

It is possible to file a waiver application with the consular officer at the US Embassy. However, this method may be inefficient as the Embassy will send the I-601 waiver application to USCIS for adjudication. It may be faster to simply file an I-601 application with USCIS directly.

On another related note USCIS Bangkok has administrative jurisdiction over USCIS filed offices in  New Delhi, India; Seoul, Republic of Korea; Beijing and Guangzhou, People’s Republic of China; Hong Kong, Special Administrative Region of China; Manila, Philippines; and Ho Chi Minh City, Vietnam. In its capacity as Bangkok’s District Office it has jurisdiction over Australia, Burma, Brunei, Cambodia, East Timor, Laos PDR, Indonesia, Singapore, Thailand, Malaysia, and New Zealand. Therefore an I-601 waiver application for a US visa to be obtained from an Embassy in any of these countries can be filed at USCIS Bangkok.

Thanks for reading and for more on US Immigration from Thailand please see:

K1 visa application

Fiance visa application

US Visa Thailand

(Please note: this writing should not be used in lieu of legal advice from a licensed attorney with experience in US Immigration matters. No relationship (attorney-client or otherwise) should be implied from reading this article.)

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22nd April 2009

Strategic Uses for K3 Visas

Posted by : admin

The Role of the K3 Visa

I have written before about how the usefulness of the K3 Visa is somewhat questionable now that the processing times for both the K3 and CR-1 visas are relatively similar. However, this does not mean that the K3 Visa does not have its uses.

First, the K3 is still an expedited visa and it may be very useful where a couple is already married, but truly wishes to get the immigrant spouse to the United States as quickly as possible. Other positive aspects of the K3 include the fact that it is a non-immigrant visa that has multiple entries, so if the foreign spouse is not particularly interested in working there may be some tax benefits to using a K3 rather than taking permanent residence and thus possibly being liable for more US taxes as a green card holder (this is speculation as I am not a tax expert, so if this idea is appealing first check with an American tax attorney before making any decisions in this regard).

All of these benefits are fairly negligible when compared to the dual facts that a K3 takes longer than a K1 Visa, but does not grant permanent residence to the beneficiary like the CR-1 or IR-1 Visa. The fact is, the K-3′s original raison d’etre is gone: the Immigrant visas no longer take a great deal more time to process and therefore there is really no need for an expedited us marriage visa.

Strategic Use of the K3 Visa For an Unmarried Couple

The K3 has one major strategic advantage over the K1 and Immigrant visas, namely: the right to pick your Embassy for interview. Normally, a US visa will be adjudicated by a consular officer with a diplomatic mission in a fiancee or spouse’s home country (her country of nationality). Some people, for whatever reason, wish to use an Embassy other than their home country Embassy. There are myriad legitimate reasons for wishing to do this, but the usual reason revolves around the fact that a foreign fiancee or spouse may be working in a country other than their home country. This can pose problems because the 3rd country US Embassy may not take jurisdiction over the foreign spouse forcing them to come to their home country for interview, and should a 221 g be issued, a delay may result.

Embedded in the statute promulgating the K3 is a mechanism whereby a couple can choose which Embassy they wish to have jurisdiction over the eventual interview. If not yet married then it may be possible for a couple to use the K3 in order to choose the Embassy they wish to use at interview time. For an issue such as this it is prudent to contact a licensed attorney in order to obtain competent legal advice.  It may be wise to contact an American attorney in Bangkok in order to assist with the process in Thailand.

Note: None of the above should be used as a substitute for legal advice from a competent Licensed US Immigration Attorney in your jurisdiction.

For more please see us visa thailand or us embassy thailand

or contact Integrity Legal by email at [email protected]

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29th March 2009

There is some confusion about 221 (g) refusals for US Visas from Thailand. A 221 (g) request is a refusal to grant a US Visa without further evidence. When the Consular Officers are deciding whether to issue a US Visa (for our purposes we will look at it from the context of K1 Fiance Visas, K3, or CR1 Marriage Visas) they are essentially performing a due diligence search in order to ensure that the applicant is who they say they are and are traveling to the USA for a valid purpose (in this case the reason for traveling is a family relationship to the US petitioner).

Some couples become quite distraght when a 221 (g) is issued and it can be quite inconvenient particularly in instances where the applicant is originally from a distant area of Thailand. This can be especially troublesome if the applicant’s household registration (tabien baan) is in a distant locale and it is difficult for them to travel there. Often documents are required from the local amphur office in th disrict where the applicant’s household registration exists. Although it may be a routine matter for the Embassy to issue these type of requests, it can be a major endeavor for the Thai applicant to obtain the necessary documentation.

221 (g) refusals generally allow the applicant one year to obtain the requested documentation before the Embassy will destroy the file. Failure to respond to the request for evidence could result in the underlying petition being cancelled and the process to begin anew.

Us Visa

Us Visa

To avoid 221 (g) refusals it may be wise to enlist assistance of an immigration attorney in an effort to forestall a 221 (g) denial. It should be noted that even with assistance of counsel a 221 (g) refusal may still be issued and further documentation needed. Consular Officers have wide discretion as per the doctrine of consular absolutism and therefore requests for further documentation should be taken seriously and responded to in a timely manner.

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