Integrity Legal

An extremely common topic on this blogs involves the US K1 visa. The K1 visa is designed for fiances of American Citizens. This visa allows the foreign fiancee to travel to the United States of America for the express purpose of getting married and adjusting status to lawful  permanent resident. It is a “dual intent” visa meaning that it is non-immigrant, and therefore temporary, but converting to an Immigrant visa is statutorily allowed and in a way somewhat encouraged as K1 visa holders who leave the United States cannot reenter on the same K1 without first obtaining permission to do so, this permission is known as advance parole.

With this in mind, there is another visa related to the K1 fiance visa. This visa is referred to as the K2 visa. A K2 visa is designed for the children of the holder of a K1 visa. It is a “derivative visa,” in that the benefits conferred in the K2 visa are entirely dependent upon the K1 visa holder’s status. For example, if a Thai fiancee has a child and they are each applying for a K1 visa and K2 visa respectively, then if the K1 visa application is denied the K2 application will be summarily denied as well.

The K2 visa is also derivative in that it “piggy backs” on the K1 visa during the adjustment of status process. This means that if the K1 visa holder and the K2 visa holder enter the United States together, then they ought to adjust their status at the same time as the process is likely to be more streamlined.

Those holding a United States K2 visa must abide by the same conditions as one holding a K1 visa. The K2 visa is non-immigrant, but the dual intent doctrine applies (this allows for the visa holder to intend to adjust status upon entry). Further, the K2 is also a single entry visa, so the K2 holder would also need to obtain advance parole before leaving the United States. The derivative nature of the K2 creates a difficult situation if the K1 holder leaves the United States without obtaining advance parole. In this situation, the K2 holder would fall out of status the moment the K1 holder leaves and falls out of status. That being said, unlawful presence generally does not accrue against minor children so the child in the US unlawfully would likely not be barred from later reentering based upon a legal grounds of inadmissibility due to an overstay.

It should also be noted that the K2 beneficiary will need to accompany their parent to the K1 visa interview at the US Embassy in Bangkok. In all likelihood, the Consular officer will not wish to speak with the child, but they will want to physically see them.

Tags: Adjustment of Status, advance parole, K-1 Visa, K-2 Visa, K1, K1 Visa, K1 Visa Thailand, K2 Visa, k2 visa thailand, Visa for Thai Child
Posted in Adjustment of Status, Fiance Visa Thailand, General Legal Information, K1 Visa Thailand, us embassy bangkok, US Embassy Thailand, US Visa and Immigration, US Visa Thailand | No Comments »

One of the more confusing aspects of US Immigration from the perspective of laypeople is deciphering all of the legalese that US Immigration attorneys use when writing about US visas. To clear up some of the confusion, this post defines some of the most used jargon so that the average reader researching American Immigration can better understand the subject matter.

USCIS: The Acronym for the United States Citizenship and Immigration Service. The government entity formerly known as the INS (Immigration and Naturalization Service). USCIS is the office that adjudicates petitions for immigration benefits.

K1 Visa: The K1 Visa is a Fiance Visa in that it allows the unmarried fiance of a US Citizen entry into the United States for 90 days for the sole purpose of marrying the US Citizen (who filed the petition for the visa) and adjusting status in the United States.

I-129f: The K1 visa application filed and adjudicated at a USCIS service center.

Immigrant Visas: Visas that confer permanent residence upon entry (in the context of this blog this term is used interchangeably with the terms IR-1 and CR-1)

IR-1 Visa: a visa that confers permanent residence upon entry to the USA of an immediate relative of a US Citizen (for the purpose of this blog the IR-1 is generally used to refer to a visa for Thai-American married couples who have been married for more than 2 years.)

CR-1 Visa: Conditional Resident Visa, a visa that confers conditional permanent residence to the visa holder (for the purposes of this blog this term is generally used for marriage visas in which the underlying marriage has lasted less than 2 years in duration).

I-130 petition: the application form for obtaining an Immigrant Visa. It is filed and adjudicated at USCIS.

K-3 Visa: a K-3 Visa is a non-immigrant marriage visa originally designed as an expedited marriage visa when the I-130 petition was taking as long as 3 years to process. It requires a dual filing, and underlying I-130 petition as well as a subsequent I-129f petition in order to obtain the expedited visa.

Direct Consular Filing: refers to the method of directly filing a visa petition with a consulate or Embassy in a foreign country. Sometimes the term “Direct Consular Filing” is used interchangeably with the term “local filing.”

Local Filing: Generally, for the purposes of this blog this term is used when describing the method of filing an immigration petition at the USCIS district office overseas (Specifically the USCIS Bangkok District Office).

Adjustment of Status: Adjustment of status or AOS is the procedure of converting a non-immigrant visa holder into Lawful permanent residence (Green Card holder).

Advance Parole: An immigration travel document that allows an alien, with an adjustment of status application pending, to leave the USA and still keep their status from being canceled upon departure from the USA. Advance parole is necessary where a fiance has entered the United States on a K1 Visa and subsequently leaves before an adjustment of status is complete.

Green Card: A colloquial term for the document proving lawful permanent residence.

United States: According to the Immigration and Nationality Act of the United States, the definition of United States, “when used in a geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of the United States.“

Reentry Permit: A permit needed for a Lawful Permanent Resident who wishes to remain outside of the USA for a prolonged period of time. The reentry permit is necessary in order to mitigate against the presumption of abandonment of adjustment of status when a permanent resident leaves the United States.

I-134 affidavit of support: the affidavit of support necessary for the K1 Fiance visa, this affidavit shows that the US Citizen will be able to support the fiancee at the statutorily prescribed level.

I-864 affidavit of support: the affidavit of support used in conjunction with the Immigrant Visas for showing that a US Citizen can support his wife at the statutorily prescribed level.

Joint Sponsor: A person who jointly sponsors a visa beneficiary should the US Citizen petitioner not meet the statutory requirements to sponsor a beneficiary on his own.

For more information on US Visas Generally please see USA Visa Thailand

Note: None of the above should be used in lieu of legal advice from a competent licensed attorney in the readers jurisdiction

Tags: Adjustment of Status, advance parole, CR-1 Visa, Green Card, I129f, I130, IR-1 Visa, K1 Visa, K3 Visa, US Visa Thailand, USCIS
Posted in US Embassy Thailand, US Visa and Immigration, US Visa Thailand | 2 Comments »

After a Thai Fiancee or Wife obtains lawful permanent residence (Green Card), it becomes necessary to keep this status preserved. Residence is “permanent” so long as the Thai Spouse complies with the rules inherent to permanent residence. One way that a Thai Wife may lose her lawful permanent resident status is if she spends long intervals of time in a country outside of the United States. Too much time spent outside of the United States can be construed as an intention to abandon one’s permanent residence (Green Card).  Since 9/11, United States immigration officers have started to highly analyze the amount of time a permanent resident spends outside of the United States. Even more than simply examining how much time one spends outside of the country, Immigration Officers now scrutinize the underlying reason for traveling at all. For this reason, preparations should be undertaken in advance if it is possible that a Permanent Resident will travel outside of the USA for a period of six months or more.

What is the Effect of Abandoning Permanent Residence?

There is no uniform rule that immigration officers utilize in determining if a Thai wife has abandoned her lawful permanent resident status. A Thai Wife’s “green card” can be employed as a legal entry permit if she has not been out of the United States for more than a year. That being said, simply going to the United once a year is definitely not sufficient to maintain a Thai Wife’s permanent resident status. Failure to be present in the United States for a period of six months or more raises the legal presumption that the immigrant has abandoned their U.S. residence. There are other aspects that will be looked at when deciding if an alien has abandoned their status: does the immigrant intend to depart the United States subsequent to the arrival at issue; does the international travel have a specified purpose and an ultimate end date; does the permanent resident pay taxes in the U.S. ; and does the resident have strong ties to the US: job, property, and other indicia of residence (e.g., driver’s license, bank accounts and credit cards, and active participation in the community).

When arriving in the USA after remaining outside of the country for a long period of time the resident should provide as much of the above evidence as possible and also be prepared to explain the reason for their absence from the United States. Someone who is unable to persuade the immigration officer that they have not abandoned their residence could be placed into removal proceedings and have their green card revoked pending the verdict in those proceedings. This situation could take many months to remedy if the situation can be remedied at all.

What is a Reentry Permit and What Benefit Does it Confer?

Reentry permits are similar to advance parole with regard to the fiance visa. Immigration officers at the port of entry are more inclined to respect those holding a Reentry Permit. By going through the application and obtainment process for a Reentry Permit, the Thai Permanent Resident in the USA is putting the U.S. Government on notice that it is a possibility that they will not be present in the United States for a duration of up to two years, and that they do not have any intention of abandoning their residence in the United States. The Reentry Permit application must be made while in the United States and even though it is not a necessity to wait in the USA for the permit’s issuance, the biometric scan is necessary and currently takes approximately 6-8 weeks to get an appointment after the application is filed.

For more information please see US Visa Thailand

Tags: advance parole, Fiance Visa, Green Card, Reentry Permit, US Immigration Thailand, US Visa Thailand
Posted in US Visa and Immigration, US Visa Thailand | 1 Comment »

What is Advance Parole?

It is an immigration travel document conferred by the USA.

Unlike a re-entry  permit, advance parole is granted to those who have yet to obtain lawful permanent resident status.  For the purposes of this post we will discuss advance parole with regard to the K1 Visa. Since the K1 Visa is a non-immigrant single entry visa  advance parole may be a necessity if one enters the United States and would like to subsequently leave after entry with permission to return upon the same visa. This is especially important in terms of adjustment of status. When a Thai spouse enters the USA on a K1 Visa she must adjust status in order to obtain lawful permanent residence (a “Green Card,” to use the colloquial term). Should she leave the US while the adjustment is still processing, her adjustment application will be canceled and the visa process will have to start all over again in order for her to re-enter the USA. Therefore, advance parole is a very important concept in terms of US Family Immigration. (Although a K-3 Visa is a non-immigrant visa it is a multiple entry visa so the issues of advance parole aren’t as important)

Advance Parole and US Possessions and Territories

In previous articles about advance parole, I have written about my hesitance to advise those in the USA on a K1 Visa to travel to certain possessions of the United States. I still renew this caution, but I believe some clarification of the travel issue can be found in the definition of “United States” found at 8 CFR Chapter 12 Subchapter 1 § 1101 (a) (38):

“The term “United States”, except as otherwise specifically herein provided, when used in a geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of the United States.”

This definition begs the question, “What about other possessions of the United States?”

Advance Parole Document

The United States is also in possession of : American Samoa, Palau, the Northern Marianas Islands, and the Marshall Islands. The United States is also in a compact of Free Association with the Federated States of Micronesia. It would appear from the definition of “United States,” provided in the Immigration and Nationality Act that one would need to obtain advance parole in order to travel to any of these minor US outlying possessions because they are not part of the United States for the purposes of the Immigration and Nationality Act.

I think it may be wise to look at issues of advance parole on a spectrum:

Travel within the 50 US States: No need for Advance Parole

Travel to Puerto Rico, the US Virgin Islands, or Guam after entry into the US on a K1 Visa: it would appear that one can travel to these possessions, but there may be an issue because these territories are not technically within the USA. I would strongly recommend against traveling to these locations (unless absolutely necessary and after consultation with a competent US visa lawyer in your jurisdiction)  until after the adjustment of status process is complete.

Travel to American Samoa, Palau, the Northern Marianas Islands, and the Marshall Islands: Pursuant to the INA’s definition of “United States” it would be highly inadvisable to travel to one of these places without first obtaining advance parole because these locations do not fall within the definition of “United States,” as the author reads it.

Travel to any other state not mentioned above: Advance parole a definite necessity.

Hopefully, this post has shed some light upon this subject, but as always, do not use any of the above as a substitute or in any way in lieu of legal advice from a competent licensed attorney with experience in US Immigration matters.

Tags: advance parole, Fiance Visa, Fiancee Visa, K1 Visa, us embassy bangkok, US Visa, us visa lawyer
Posted in US Visa and Immigration | 5 Comments »