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Posts Tagged ‘K-1 Visa’
1st January 2010
K1 Visas From Thailand in 2010
Posted by : admin
For those interested in finding out detailed information regarding fiance visas from Thailand please see our main page at: K1 visa Thailand. For more details about United States Visas generally please see: US Visa Thailand.
The New Year has dawned and the K1 visa still remains the most popular method employed by American Citizens when they wish to be reunited with their Thai fiance or fiancee in the USA. At the present time, the United States Citizenship and Immigration Service (USCIS) is estimating that the K1 visa processing time will be approximately 5 months. This estimate measures petition processing time from filing until final USCIS adjudication. For Thai fiancees seeking a K1 visa from the US Embassy in Bangkok this estimate does not take into account the processing time at the National Visa Center (NVC) nor the processing time for a K1 visa application at the US Embassy.
Generally, NVC takes approximately 14 days to process a visa petition, conduct a security clearance, and forward the file to the US Embassy. At present, it has been this author’s opinion, based upon prior experience, that this is usually the amount of time that it takes for the NVC to process the case file.
Once the file arrives at the US Embassy in Bangkok the officers will send a notice to the applicant and/or the attorney of record informing those concerned that they can now begin compiling the visa application. Generally, it takes approximately 2 weeks to compile the necessary documentation to send to the Embassy so that the Embassy staff can schedule the visa interview. In 2009, the Embassy began notifying applicants of appointment scheduling via email. This greatly streamlined the process and cut days, or, in some cases, weeks off of the final phases of the K1 visa process.
In those instances where a K1 visa applicant received a 221g refusal and request for further documentation, the Consular Officers generally processed the application efficiently and diligently once the applicant (or their attorney of record) presented the requested follow up documentation. It seems unlikely that this diligence and efficiency will subside in 2010.
The K1 visa process in 2010
At the time of this writing, it would appear that the K1 visa process will not be significantly changed in the near future and cases will continue to process through the system as before. However, with Comprehensive Immigration Reform on the horizon, there is good reason to believe that eventually the K1 visa process may change as a result of Congressional revision of the Immigration and Nationality Act (INA). How these revisions will effect the K1 visa process remains to be seen. With all of this in mind, this author believes that the year 2010 should be a dynamic year for United States Immigration.
31st December 2009
Comprehensive Immigration Reform and Family Immigration
Posted by : admin
For those with relatives overseas the immigration process can at times seem interminable. In most cases, the visa process involves multiple US government agencies and can be somewhat confusing as Immigration is an area in which different regulations overlap.
Currently, there is a Bill in Congress that would reform the United States Immigration system. Many practitioners of Immigration law as well as immigrants feel as though the time has come to reform the American Immigration system. On the American Immigration Lawyers Association Leadership blog there has been a recent posting about the current state of the Immigration system, ways it can be fixed, and how all of these issues impact Americans as well immigrants. To quote directly from the blog posting:
“The crises in family and employment immigration are chronic and pressing. The backlog in family and employment waiting lines is gravely dispiriting and undermines the long-held principle of family reunification. Immigrant Visa Numbers Hopelessly Encased In Amber. The situation is deteriorating every day with more detentions, more denials, more delays, more deportations and more defective decisions. ICE has now reported 105 deaths in civil immigration custody since 2003. More Immigrant Deaths in US Detention CommonDreams.org Now is the time to turn the tide of the culture of “No” pervading our immigration system. We need to unite families and we need to keep industry vibrant and competitive.”
At present, the K1 visa process for Thai fiancees takes approximately 6-7 months from K1 visa application submission until final decision at the US Embassy in Bangkok.
The K3 visa process generally takes approximately 8 months from initial I-130 submission until the the visa interview.
It now takes about 11-12 months to process a CR-1 or IR-1 visa if the petition is filed in the United States of America.
There are some who would argue that it takes too long to obtain a US visa for an immediate relative. Others find it rather odd that a fiancee visa takes less time to process than a marriage visa. This could be attributed to the fact the K1 visa does not provide the bearer with long term lawful presence in the United States of America, but instead only provides the visa holder with 90 days status in the USA and the opportunity to adjust status to permanent residence subsequent to marriage.
The upcoming Comprehensive Immigration Reform bill will be an interesting thing to watch as it will likely have a dramatic impact upon future immigrants to the United States as well as some of those currently processing through the Immigration system.
11th December 2009
The Widow Penalty Comes to an End
Posted by : admin
In a recent article disseminated by AILA, Mr. Brent Renison discussed issues involving the so-called “widow’s penalty” (or “Widow Penalty”) and how recent legislation has been enacted to end the imposition of penalties imposed upon foreign spouses in the event that their US Citizen or Lawful Permanent Resident spouse should pass away before the adjudication of an adjustment application or an application for a lift of conditions of lawful permanent residence. To quote the article:
“The “widow penalty”, whereby spouses of U.S. citizens and their children faced automatic denial of a visa petition if the death of the spouse occurred prior to adjudication and prior to two years of marriage, effectively ended upon the passage of § 568(c).2 That section removes the two-year marriage requirement from the current law that permits widows and widowers (“widow(er)s”) of U.S. citizens to file a self-petition for themselves and their children.”
It is still required that the American’s widow demonstrate that the marriage was bona fide when it was entered into:
“By removing the two-year precondition to a current statutory program, Congress retained the widow(er) self-petition procedure including the requirement to show a good faith marriage. The law does not alter the rights of widow(er)s who were married two years or more, who have been able to self-petition since 1990.”
The end of the Widow Penalty hopefully marks the beginning of more compassionate treatment of foreign widows of American Citizens. The aforementioned article goes further in its analysis of the new law and the impact it will likely have upon fiancees and spouses of US Citizens:
“The deletion of the two-year marriage requirement will allow a widow(er) who was married less than two years at the time of the citizen spouse’s death to file a Form I-360 self-petition within two years of the law’s passage, or within two years of the spouse’s death, whichever is later.”
It is interesting that this will likely have an impact upon those who enter the United States upon a K1 fiancee visa:
“This self-petition can be filed concurrently with an Application for Adjustment of Status to Lawful Permanent Resident (Form I-485) if the widow(er) is in the United States pursuant to a lawful entry.”
Therefore, if the fiance of a US Citizen enters the USA on a K1 visa, marries the US Citizen, and the US Citizen dies before the adjustment application is either filed or adjudicated, then it would now be possible for the fiance visa holder to self petition for adjustment in these circumstances. In this author’s opinion, this is an equitable and effective way of dealing with what is already a difficult issue.
If a lawful entry is all that is necessary, then the question must be posed: if an alien enters the USA on a valid tourist visa, marries an American who subsequently dies, would that alien be eligible to submit a self petition for adjustment of status? Hopefully these issues will be handled as the new law is brought into effect.
7th December 2009
United States Criminal Warrants and Convictions
Posted by : admin
Recently, this author was asked about whether or not Thailand and the USA share an extradition Treaty and, if so, what are the ramifications of an American criminal warrant or conviction for those living in Thailand.
Extradition, “is the official process whereby one nation or state requests and obtains from another nation or state the surrender of a suspected or convicted criminal.”
Thailand and the United States currently have an Extradition Treaty. It is similar to the US-Thai Amity Treaty in that it is bilateral, but the subject matter of the Amity Treaty is very different compared to that of an Extradition Treaty. An Extradition Treaty provides a framework whereby the United States authorities can request that a suspect be handed over to the American authorities. That being said, for more information on specific legal citations please see the relevant Wikipedia page.
As Thailand and the United States share an Extradition Treaty, a person with American Criminal Warrants or American Arrest Warrants could be subjected to United States jurisdiction while in Thailand or while traveling between Thailand and another country. Even if not arrested in Thailand, it is always wise for those with criminal warrants or convictions to deal with the matter so that it can be “put to rest.” It is never wise to run from one’s criminal problems.
For those with a prior criminal conviction or pending criminal warrants the issue of passport re-issuance can be critical. The United States Embassy in Bangkok, Thailand and the United States Consulate-General in Chiang Mai assist with new passport re-issuance through their American Citizen Services Sections. If one is currently wanted in a US jurisdiction, then the Consular Officers at American Citizen Services are unlikely to issue a new passport or travel document until the American (or foreign national) in question returns to the United States to deal with the pending matter.
Of further importance to many non-US Citizens with pending American criminal warrants is the effect of criminal proceedings upon one’s ability to acquire United States Immigration benefits (most importantly, a US visa). If one has an arrest or conviction for domestic violence, this fact could have a major impact upon one’s ability to petition for a K1 visa due to the provisions in the Adam Walsh Act and other relevant US law. Further, if one has a criminal conviction in the US, the underlying facts of the case could lead to a later finding of inadmissibility by a Consular Officer adjudicating a later visa application. In some cases, an I601 waiver may be available for those who are found to be inadmissible. Consulting with an attorney experienced in Immigration matters could provide insight regarding the Immigration ramifications of an American criminal conviction.
An American attorney in Thailand (or southeast Asia) could be of assistance to a client by acting as a liaison with American authorities or with other American attorneys. Simply providing legal advice regarding the impact of one’s prior choices could be a boon to some as well. No attorney can assist in evading US law, but a lawyer licensed in the United States could assist by providing legal counsel and advice regarding the ramifications of a client’s previous decisions.
2nd December 2009
State Department Cable 99 and the Role of Immigration Attorneys
Posted by : admin
The United States Department of State is tasked with overseeing the efficient operation of US Embassies and Consulates abroad. Often, State Department headquarters issues instructions to posts abroad using official cables. In US Immigration circles there is a well known cable called “99 State,” otherwise known as 99 State 21138. This cable lays out guidelines for Consular Officers with regard to United States Immigration Attorneys.
The first notable policy outlined in the Cable deals with the relationship between Immigration attorneys and Consular Officers:
“The relationship between consular officers and immigration attorneys can be productive. Consular officers can often learn a great deal from a conscientious attorney, and vice versa.”
There is no doubt in this author’s mind that this is true. Consular officers provide a great deal of assistance when processing visa applications. More than anything, they can provide insight into the underlying policy reasons behind failure to issue a visa. In many cases, the reason for delay is due to a failure to provide pertinent information that the client did not believe was necessary to adjudicate the petition.
The Cable goes further:
“Consular officers should not pass judgment on applicants who choose to employ the services of an attorney. Some people are more comfortable working through an attorney no matter how straightforward or simple the visa case may appear to the consular officer.”
This is one section of the cable that Consular Officers seem to have taken to heart. This author has never felt that Consular Officers look askance at applications where the petitioner or beneficiary has retained an attorney to assist in preparation. With regard to case preparation, the Cable goes further:
“One important service that attorneys provide to their clients is making sure that forms are correctly completed and necessary supporting documentation presented at the time of the interview.”
Consular Officers are required to adjudicate petitions and, if the petitions receive approval, issue visas. In this author’s experience their primary goal seems to be efficient processing of bona fide petitions. Immigration attorneys can enhance the process through documentation compilation and foreknowledge of relevant issues. Those issues that may effect the outcome of a case can be dealt with in such a way that case processing proceeds smoothly. In many ways the Consulate forestalls unforeseen delays through promulgation of consistent rules:
“Posts that establish clear and consistent procedures for responding to attorney inquiries save time and resources in the long run. As with Congressional correspondence, the fuller the explanation of a refusal or a 221(g) decision, the more you will help yourself.”
It has been this author’s experience that Consular staff are very upfront about what they are seeking in a given case. Further, the role of an attorney is clearly defined by the US Embassy Thailand as no one is allowed to be present during the visa interview, this includes American fiances and husbands in K1 visa and K3 visa cases. This being said, attorneys are currently permitted to submit 221(g) follow-up documentation where necessary.
In the years since the distribution of “99 State,” it is this author’s opinion that Consular Officer-Immigration attorney relations are professional, efficient, and cordial and there is no reason to believe that this will not continue to be the case.
29th November 2009
K1, K3, CR1, IR1 Visa: USCIS Processing Times (Updated)
Posted by : admin
The United States Citizenship and Immigration Service (USCIS) routinely issues updates regarding the processing time estimates for cases submitted at USCIS Service Centers in the United States of America. Since this website is dedicated to United States Family visas such as the CR1 visa, IR1 visa, K1 visa, and K3 visa; we have only displayed the processing times for the service centers which process these applications. For more information please see the new USCIS website.
The following are the processing times for the USCIS California Service Center as of September 30, 2009:
I-129F | Petition for Alien Fiance(e) | K-1/K-2 – Not yet married – fiance and/or dependent child | 5 Months |
---|---|---|---|
I-129F | Petition for Alien Fiance(e) | K-3/K-4 – Already married – spouse and/or dependent child | 5 Months |
I-130 | Petition for Alien Relative | U.S. citizen filing for a spouse, parent, or child under 21 | 5 Months |
I-130 | Petition for Alien Relative | U.S. citizen filing for an unmarried son or daughter over 21 | October 16, 2004 |
I-130 | Petition for Alien Relative | U.S. citizen filing for a married son or daughter over 21 | March 02, 2002 |
I-130 | Petition for Alien Relative | U.S. citizen filing for a brother or sister | June 16, 2000 |
I-130 | Petition for Alien Relative | Permanent resident filling for a spouse or child under 21 | August 16, 2006 |
I-130 | Petition for Alien Relative | Permanent resident filling for an unmarried son or daughter over 21 | October 02, 2002 |
I-131 | Application for Travel Document | All other applicants for advance parole | 3 Months |
The following are the processing times for the USCIS Vermont Service Center as of September 30, 2009:
I-129F | Petition for Alien Fiance(e) | K-1/K-2 – Not yet married – fiance and/or dependent child | 5 Months |
---|---|---|---|
I-129F | Petition for Alien Fiance(e) | K-3/K-4 – Already married – spouse and/or dependent child | 5 Months |
I-130 | Petition for Alien Relative | U.S. citizen filing for a spouse, parent, or child under 21 | 5 Months |
I-130 | Petition for Alien Relative | U.S. citizen filing for an unmarried son or daughter over 21 | July 03, 2006 |
I-130 | Petition for Alien Relative | U.S. citizen filing for a married son or daughter over 21 | June 05, 2006 |
I-130 | Petition for Alien Relative | U.S. citizen filing for a brother or sister | June 19, 2007 |
I-130 | Petition for Alien Relative | Permanent resident filling for a spouse or child under 21 | January 19, 2006 |
I-130 | Petition for Alien Relative | Permanent resident filling for an unmarried son or daughter over 21 | June 05, 2006 |
I-131 | Application for Travel Document | All other applicants for advance parole | 3 Months |
It should be noted that these processing times are only estimates and every Immigration petition is unique in that it processes at its own pace. Further, these processing times are only relevant with regard to USCIS. The US Embassy in Bangkok and the US Consulate in Chiang Mai process applications after they have received USCIS pre-approval.
28th November 2009
New Ombudsman Appointed for USCIS
Posted by : admin
The Department of Homeland Security is a vast bureaucracy with many different components. The Ombudsman’s office can be very helpful for those who have had a file go missing or otherwise need assistance in dealing with the United States Citizenship and Immigration Service (USCIS). Recently, Secretary Napolitano of Homeland Security appointed a new Ombudsman. The American Immigration Lawyers Association (AILA), noted the appointment in a recent press release:
“In a message to employees yesterday afternoon, Secretary Napolitano announced the appointment of January Contreras as Citizenship and Immigration Services (CIS) Ombudsman for the Department of Homeland Security.”
Secretary Napolitano was quoted as saying that the new Ombudsman has “valuable experience,” which will assist in her future endeavors. To further quote the above press release:
“Ms. Contreras previously served as a Senior Advisor to Secretary Napolitano, where she helped lead the Department’s response to the H1N1 flu and oversaw Department initiatives for the White House Council on Women and Girls. She formerly led the Arizona Department of Health Services, managing nearly 2,000 employees and overseeing the state’s public health and behavioral health systems. In addition, she has 10 years of experience in litigation and policy including health and its interaction with immigration policy and legislation.”
The aforementioned press release also noted the exact nature of the USCIS Ombudsman’s role:
“The CIS Ombudsman provides independent analysis of problems encountered by individuals and employers interacting with U.S. Citizenship and Immigration Services, and proposes changes to mitigate those problems.”
Contacting the USCIS Ombudsman’s office can be very beneficial for those with a pending K1 visa or K3 visa application. However, the office should not be contacted simply to request information regarding the status of a pending case as the USCIS website is probably the more appropriate place to seek this information.
This author hopes that the appointment of this new Ombudsman will further protect the interests of those processing their application with USCIS. With that in mind, in recent months the USCIS Service Centers seem to be processing applications with a great deal of efficiency and there does not appear to be any reason to believe that this will not continue in the future. It should be noted that the Ombdsman does not oversee the administration of the US Embassy Thailand. The Department of Homeland Security and the Department of State (the agency with jurisdiction over US Embassies and Consulates, like the US Consulate in Chiang Mai) are two separate agencies and their staff do not generally have overlapping jurisdiction. For issues concerning the Embassy it is usually best to contact the Embassy directly.
23rd November 2009
Preparing a Thai Fiancee for arrival in the USA on a K1 visa
Posted by : admin
The K1 visa process is long and complicated. At the end of the process, the K1 visa holder is permitted to enter the United States one time for a duration of 90 days. Unlike a United States Tourist visa, the K1 fiance visa is a dual intent travel document. This means that the bearer is entitled to simultaneous immigrant and non-immigrant intent. Luckily, the K1 visa holder would likely not be placed in expedited removal proceedings based upon the notion that the alien is an undisclosed immigrant without proper documentation. That being said, there are still considerations which must be made before a Thai fiancee enters the United States of America.
The first major issue many American men ask about: Can My Thai fiancee leave the USA after she enters on her K1 visa? She can leave the United States, but doing so would cause her to fall out of K1 status and a new visa would need to be obtained. There is a document called an advance parole travel document which would allow the Thai fiancee to leave the USA and reenter in the same status. That being said, it is never wise to leave the USA after entering on a K1 until after the adjustment of status application is approved. It is wise to make certain the the Thai fiancee does not have any pressing concerns that must be dealt with abroad. Some circumstances cannot be foreseen, but it is not advisable to plan on turning around and leaving the USA shortly after entering on a K1.
Upon reaching a port of entry in the USA, the Thai fiancee will pass through Customs and Border Protection (CBP). This is the point at which she will need to present her visa. Most people do not realize that the visa is not merely the document in her passport, but also a large amount of documentation that the Embassy gives her after approving the application. This documentation is remitted in a sealed envelope which is not to be opened by anyone other than the CBP Officer. Generally, the CBP officer will ask some routine questions and usually admit the alien fiancee. In very extreme cases, it may be possible for a CBP officer to turn the entrant away. However, this author has yet to see a K1 visa holder turned away at the port of entry. With this in mind, couples should keep an eye upon the expiration date of the visa as this is critically important. If the visa expires before entry, then the entrant will need to reapply for a new visa at an Embassy or Consulate in Thailand.
21st November 2009
Adjustment of Status: “Aging Out” at 21 years old on a K2 Visa
Posted by : admin
We discuss the K1 visa on this blog frequently. A K2 visa is a derivative child visa designed for the child of a beneficiary of a K1 fiance visa. Under the government interpretation of US Immigration law. Children in the United States of America on a K2 visa who fail to adjust their status before the age of 21 “age out,” and must leave the country, apply for a new visa, and then return to the USA on an Immigrant visa. Unfortunately, this system can result in a delay of months or years for the would-be K2 visa beneficiary as Immigrant visa applications for the 21 year old step children of US Citizens can take as long as 3-5 years to be adjudicated. At the time of this writing, the case known as In Re Qiyu Zhang is pending in the US court system and could change this rule.
Advocates for United States Immigration reform await the outcome of this case with great anticipation as a favorable opinion would provide many new benefits to the children of American Immigrants. The American Immigration Lawyers Association (AILA) has filed a brief in support of ending the “age out” interpretation of the K visa statute. To quote the American Immigration Lawyer’s Association directly:
“[T]he only reasonable interpretation of the K visa provisions is that Congress intended that a K-2 visa beneficiary be able to adjust status within the U.S. even after turning 21. Any other interpretation produces absurd results. Congress explicitly provided that the child of a fiancé(e) K-1 visa holder was eligible for a K-2 visa and admission to the U.S. up until he or she turned 21. Under DHS’ interpretation, K-2 beneficiaries …who are admitted to the U.S. shortly before their 21st birthday, and who thus have insufficient time to complete the adjustment process, must immediately depart the U.S. upon turning 21. Congress certainly did not intend for some K-2 visa beneficiaries to be restricted to a visit to the U.S. – in some cases, for only a matter of days – the result that flows inevitably from DHS’s interpretation of the statute. Instead, as demonstrated below, the statute can and must be interpreted to allow all K-2 visa holders, no matter their age after admission, a viable path to adjust to lawful permanent residence status.”
This writer concurs with the opinion in the aforementioned brief as K2 beneficiaries should be allowed to adjust staus even after they have turned 21. Even though the K2 could technically be considered a dual intent travel document, the primary reason for its use is for children to travel to the US and adjust status. In this case, denying Immigration benefits due to age is too arbitrary and failure to adjust status because one reaches the age of 21 violates the spirit of the K visa statute.
18th September 2009
US Immigration Statistics: Demographic Impact
Posted by : admin
In a recent report published by the Immigration Policy Center, the issues surrounding United States Immigration and its demographic impact were discussed. To quote an email sent out by the Center, the demographics of Immigrant’s in the United States is somewhat surprising:
“Roughly one-in-seventeen U.S. citizens are foreign-born, and tens of millions of native-born U.S. citizens have immigrant parents. This demographic reality has important political ramifications. A rising share of the U.S. electorate has a direct personal connection to the immigrant experience, and is unlikely to be favorably swayed by politicians who employ anti-immigrant rhetoric to mobilize supporters.”
The fact is: were it not for the influx of immigrants to the United States, the “birth dearth” being experienced in other western countries would be highly prevalent in the United States of America. Immigrants add a great deal to the American economy as well as the societal structure as they compensate for the aging American population. Systems such as social security and Medicare would be in far greater peril were there to be no influx of foreign immigrants traveling to America on a USA visa in order to live and work.
In the same email, there were some compelling statistics regarding immigrant populations in the United States:
“There were 38.1 million immigrants living in the United States as of 2007, of whom 42.5% were naturalized U.S. citizens.
The number of naturalized U.S. citizens increased from 8 million in 1990, to 12.5 million in 2000, to 16.2 million in 2007.
There were 45.5 million Latinos in the United States in 2007, of whom 11.2% were naturalized U.S. citizens and 60.2% were native-born U.S. citizens.
There were 13.3 million Asians living in the United States as of 2007, of whom 37.7 % were naturalized U.S. citizens and 31.8% were native-born U.S. citizens.”
Of particular interest for this author is the final statistic regarding people of Asian descent. As a law firm in Bangkok that primarily handles United States Immigration for Thai fiancees and spouses of US Citizens, this statistic truly hit home. The K1 visa, the K3 visa, and the CR1 visa applications are processed at the US Embassy in Bangkok, Thailand. We see many happy couples using the American Immigration system in order to reunite with their US Citizen loved ones. Many of these immigrants proceed to adjust their status and remain with their American loved one long term. Some proceed further and complete the naturalization process. In many cases, children are born from these happy unions. In all, America is fueled by Immigration as it is a nation of immigrants. As time passes hopefully the American government will keep this in mind when creating new legislation which impacts the Immigration process.
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