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 »

As the movement towards the eventual repeal of the Defense of Marriage Act (DOMA) continues, it appears that proponents of repeal may score a minor victory by enlisting Senator Russ Feingold to introduce repeal legislation.

The Washington Blade reports,

“[Senator] Feingold is an attractive ally to introduce a DOMA repeal bill because he chairs the Senate Judiciary Committee’s Constitution Subcommittee, which hold jurisdiction over DOMA, she said.”

Concurrently, it would appear that Jerry Nadler, Democratic Member of the House of Representatives, is preparing to introduce a bill to repeal DOMA. Under the provisions of the DOMA repeal currently being considered, states would not be forced to recognize same-sex marriages conducted in other states, but the Federal government would be required to recognize these marriages and provide federal benefits.

Allison Herwitt, legislative director of the Human Rights Campaign, was quoted as saying, “You could, if you lived in Oklahoma, travel to Massachusetts, or one of the other [five] states get married and [go] back to Oklahoma,” she said. “The state would not have to recognize your marriage, but federal benefits would flow.”

Jerry Nadler is notable for having introduced federal legislation known as the Uniting American Families Act (UAFA). This proposed legislation would have granted US Immigration benefits to the same-sex “permanent partners,” of American Citizens or Lawful Permanent Residents (holders of US Green Card).

This proposed DOMA repeal would likely have the same effect as the provisions under the UAFA because it would theoretically accord the same sex spouse of an American Citizen the same privileges granted to different sex couples unde ramerican Immigration law. For example, if a bi-national same sex couple was validly married in Massachusetts and then the American Citizen filed an I-130 petition on behalf of his or her spouse, then the federal government would be compelled to recognize the marriage for the purposes of granting the Immigration benefit.

Further, one could argue that an American citizen could file a K1 visa application based upon the couple’s intent to travel to a jurisdiction in the United States which recognizes same-sex marriage and execute a valid marriage. It is thought that should this form of the DOMA repeal pass, then a fiance visa application filed for the above outlined purpose would be approved. That being said, as the bill has not been legalized and the contents are subject to change, it any analysis of USA visa implication is simply an exercise in speculation at this time.

(This is information provided for educational purposes. An attorney-client relationship should not be construed to exist between author and reader.)

Tags: Defense of Marriage Act, DOMA, DOMA repeal, I-130, Jerry Nadler, K-1 Visa, K1 Visa, K1 visa application, uafa, Uniting American Families Act
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Even with the current economy in a somewhat less-than-perfect state, the United States of America still boasts some of the best educational centers in the world. The United State has a great many post-secondary academic institutions and many of these institutions are considered by instructors, teachers, and professors to be the pinnacle of learning in the specialized fields on offer. As a result of America’s fairly unique position as a center of learning, many people from all over the world seek to travel to American in order to study. For nationals of many countries, traveling to the United States of America can a bit difficult, particularly if their country of origin is not a party to the US visa waiver program.

Citizens of the Kingdom of Thailand are unable to travel to the United states visa-free. As a result, any Thai national who wishes to travel to the United States to study must obtain a United States Student Visa, known in immigration circles by its categorical name: the F1 visa. The F1 visa is a non-immigrant visa, meaning that those traveling to the United States on an F-1 do so with the express intention to leave at the end of the visa’s validity.  Those who wish to apply for a US student visa must prove that they have the financial resources to pay for their entire stay in America without needing to resort to government assistance. Further, the applicant must prove that they are traveling to America to take up a bona fide course of study.

Many American’s who have a Thai loved one seek to obtain an F-1 student visa for the purpose of sidestepping the necessity of waiting for a US Family based visa petition to process. In comparison to even a K-1 visa (the US fiance visa that currently is the most expeditious family based visa that has inherent immigrant intent), the F-1 visa has a much shorter processing time. That being said, those who enter the United States of America on a non-immigrant visa, but in fact have immigrant intentions could be subject to criminal penalties as this course of action could be perceived as an attempt to provide false information to United States Immigration officials. Knowingly providing false information to American Immigration authorities could be construed as fraud and, at the least, would very likely result in a finding of legal inadmissibility against the immigrant. As a rule, it is always better for those wishing to travel to the United States to do so on the visa that most properly conveys the immigrants intentions.

For more information please see: US Visa Lawyer Thailand

(Nothing herein should be considered legal advice. For advice about the law, contact an attorney. No attorney/client relationship is made by reading this article.)

Tags: American Student Visa, American Visa Thailand, F-1 Visa, F1 Visa Thailand, K-1 Visa, K1 Visa Thailand, US Student Visa, US Visa Thailand
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For Thai-American couples seeking Lawful Permanent Residence (Green Card) in the United States for the spouse of an American Citizen the options are either the CR-1 or IR-1 visa. A CR-1 (Conditional Resident) visa provides conditional lawful permanent residence to the visa holder while the IR-1 (Immediate Relative) visa provides unconditional permanent residence upon entry into the United States.  An often asked question with regard to these visas: what is the difference?

When seeking a United States visa for a Thai spouse, the classic method of obtainment is through filing an I-130 visa application. After the I-130 is approved by either a USCIS Service Center in the United States or USCIS Field office abroad, it will be forwarded to a US Diplomatic post that adjudicates Immigrant visas. In Thailand, the US Embassy in Bangkok processes all US Immigrant visa petitions. Assuming that a visa is ultimately approved, the Thai spouse shall be entitled to travel to the USA in order to take up residence.

For those holding a visa conferring conditional permanent residence, it will be necessary to eventually file to have the conditionality of the visa lifted. In practical terms, this means that the Thai wife’s residence will no longer be based upon her marriage to an American citizen.  Instead, the permanent residence will become independent and unconditional. For those who enter the USA on a conditional resident visa and subsequently end their marriage during the conditional period, loss of permanent residence is highly likely.

Some people confuse the lift of conditions with adjustment of status. In cases involving a K-1 visa for a Thai fiance, adjustment of status is the process of obtaining conditional permanent residence for the fiancee (now wife) after marriage in the United States.  For those couples who adjust status in the US, after the adjustment interview, should the application be approved, the adjustment date will be that written on the adjustment of status approval letter from USCIS.

One must file for a lift of conditions within 90 days of the two year anniversary of the the Thai spouse taking up residence, in the case of adjustment the two year anniversary will be marked from the date of  adjustment approval. For the Thai who enters on a CR-1 visa, it will be the date the Thai spouse entered the USA.

In order to obtain a lift of conditions the I-751 application must be filed with an approved by USCIS. After approval, the Thai spouse may remain in the United States permanently.

For related information please see: Thailand permanent residence

(This post is for educational purposes only. It is not meant to be legal advice. No lawyer/client relationship is formed by reading this information.)

Tags: Adjustment of Status, AOS, CR-1 Visa Thailand, I-130, I-751, IR-1 Visa Thailand, K-1 Visa, K1 Visa Thailand, Lift of Conditions
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The whole point of obtaining a K1 visa is to allow the Thai fiancee a 90 day visit after traveling to the United States in order to ultimately get married. Should the couple opt not to marry, then the Thai fiancee will need to depart the country before the 90 day visa validity expires.

For those couples applying for an Immigrant Spouse Visa (CR-1 or IR-1) or a K-3 Visa, the marriage should already have taken place as the legal marriage acts as the foundation upon which the visa application is based.

That being stated, unlike Thailand, where marriage registration is a uniform process that essentially involves a trip to the local Amphur office for execution, in America the marriage procedures differ depending upon the state. Also, some states require the couple obtain a marriage license and wait a statutorily prescribed period before marriage. For the convenience of those reading this blog, here is a state by state list of rules regarding US marriage.

One should bear in mind that upon marriage in the USA, the US Citizen should petition for adjustment of status for his new Thai wife.

For more about the above chart please click here

Please be advised that the above is an improper substitute for personal one-to-one legal advice from an attorney. No attorney client relationship is formed between the reader and the author.

Tags: American Visa Thailand, K-1 Visa, K1 Visa, K1 Visa Thailand, K3 Visa Thailand, Marriage, Marriage Registration, US Visa Thailand
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For many Americans the Tourist visa is the travel document that comes to mind when discussing US Immigration. For Immigration based upon a family relationship the Tourist Visa is the worst option when an American Citizen spouse or Fiance is seeking to bring the foreign fiancee or spouse to the USA in order to remain.

One of the main reasons why the tourist visa is not an option that should be contemplated when making family immigration decisions stems from the fact that the purpose of the US tourist visa is misunderstood and the visa itself has been greatly misused in the past. A US Visitor Visa is intended for short term recreational purposes only. Similarly the US business visa is meant for short term business endeavors in the USA (conferences, trade shows, etc.) Neither are designed for use by those who seek to have their loved one remain in the USA permanently.

Consular officers making a judgment call on a US visitor visa must be convinced that the applicant has overcome the statutory presumption of immigrant intent. This doctrine stipulates that the applicant for a tourist visa is a presumed immigrant until they can demonstrate that they are strongly connected to a place outside of the USA. So connected, in fact, that they are more likely to leave the United States in order to return to that location than they would be to remain in the United States past their visa expiration.

A major misconception regarding practically any visa is the idea that it confers a “right” to enter the United States of America. In reality, the visa confers a right to present themselves at the border and upon inspection and approval from the Immigration officer, be admitted to the United States. Even at a United States port of entry, it is possible for the traveler to be turned away if the Immigration officer feels it is necessary. As a practical matter, this rarely occurs due to the fact that most entrants to the USA have a legitimate reason for entry.

Since September 11, 2001 US Immigration officials have been more zealous in their enforcement of US Immigration rules and regulations and as a result the scrutiny placed upon entrants to the US, whether they intend to immigrate or not, has increased.

Due to the fact that the US tourist visa is intended for non-immigrant purposes and the fact that scrutiny of non-immigrants to the US has increased. It is now highly advisable that those wishing to bring a loved one to the USA use the proper travel document. For those seeking to bring a loved one that they are not married to, a K-1 visa may be an appropriate option. While those with an overseas wife might opt for the K-3 visa, CR-1 Visa, or IR-1 Visa depending upon the couple’s circumstances and immigration goals.

Be advised that entering the USA on a visitor visa with anything other than NON-immigrant intent, could be viewed as an attempt to defraud immigration officials and lead to criminal or civil penalties as well as a possible later finding of inadmissibility. If deemed inadmissible, one can only be admitted to the USA after application for a waiver.

(Please note: this post is not a substitute for legal advice. For proper legal advice seek the counsel of a licensed attorney. No part of this piece should be construed as forming an Attorney-client relationship between author and reader.)

Tags: 214 b, American Visa Thailand, B-2 Visa, B2 Visa Thailand, Inadmissibility, K-1 Visa, K1 Visa Thailand, US Tourist Visa Thailand, US Visa Thailand, US Visitor Visa Thailand, Waiver
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The K-3 Visa is a bit of an anomaly in United States Immigration law because it was created as something of a “band aid” and has since become somewhat misunderstood.

The K-3 was originally devised as a “fast track,” visa for those wishing to bring their foreign spouse into the United States. The reason a “fast track,” option was necessary was due in part to the fact that classic Immigrant visa petitions for spouse’s of American Citizens (CR-1, IR-1) were taking as long as three to four years to adjudicate because of the tremendously large backlog of cases at what was then known as the Immigration and Naturalization Service (now United States Citizenship and Immigration Service) . The collective frustration with immigrant visa processing lead to the K-3′s birth.

K-3 Visa Application (s)

In order to file for a K-3 visa one must first file for a traditional marriage visa (IR-1/CR-1). This necessitates the submission of an I-130 application. The I-130 will be sent to the proper United States Citizenship and Immigration Service (USCIS) office for adjudication.  Then the USCIS office will send the petitioner or his visa lawyer a document known as Notice of Action 1 (NOA1). The Notice of Action 1 is simply a receipt from USCIS formally acknowledging the petition’s submission.

Once the Notice of Action 1 is received the petitioner and beneficiary have the option of submitting a supplemental immigration petition with the USCIS service center that has jurisdiction over the petitioner’s state of residence. When initially promulgated there were questions regarding what form should be used when petitioning for the K-3. It was eventually decided that in the interests of efficiency and ease the I-129 f petition (usually used as the K-1 visa application) would be used as the supplemental application form for the K-3 visa.

A second Notice of Action 1 will be sent out to either the visa lawyer or the petitioner putting the party on notice that the case was received.

K-3 Visa Application: Processing Time

In order to calculate the processing time for the K-3 application one must first ascertain how long it will take to get the initial I-130 application filed. Then, calculate the wait time before receiving Notice of Action 1 plus the actual adjudication time of the I-129f. Usually, the K-3 takes slightly longer to process than the K-1 visa and slightly less time to process than the Immigrant visas (CR-1 or IR-1). For unmarried couples, it may be advisable to seek a K-1 or CR-1 visa rather than the K-3. However, depending upon what Embassy the couple would prefer to use for consular processing, the K-3 could have some strategic advantages.

(Note: This post is not a substitute for proper legal advice from an attorney. Further, no attorney-client relatioship is created between author and reader.)

Tags: K-1 Visa, K-3 Visa, K-3 Visa Application, K-3 visa process
Posted in K-3 Visa Thailand, K1 Visa Thailand, US Visa and Immigration, US Visa Thailand | No Comments »

In most cases where a US Marriage Visa is involved the couple does not need to concern themselves with the issue of adjustment of status. That being said, the K-3 visa is an exception because it is a non-immigrant visa.

One should not mistake “adjustment of status” for “change of status.” “Change of Status” only applies to persons transitioning from one non-immigrant visa category to another non-immigrant visa category. In the case of a transition from a non-immigrant to an immigrant visa cateogry, the proper term of art is “adjustment of status.”

The K-3 visa is a bit of an odd category because it requires two underlying USCIS petitions: the classic I-130 and the supplemental I-129f (usually reserved for K-1 visas).  A result of these dual applications is that an alien beneficiary spouse has the option of either adjusting status in the United States or returning to her home country for interview and Immigrant Visa conferral.

Some clients opt to adjust a Thai spouse’s status in the United States, while others take the position that returning home for the interview is more pleasant. The K-3 Visa lasts for two years, therefore many Thai beneficiaries use what could otherwise be the adjustment phase of the process to return home to Thailand in order to see family while at the same time finalizing the Immigrant visa process at the US Embassy in Thailand.

Should the foreign bride decide to adjust status stateside, then the process is similar to the adjustment of status process for a fiance visa. Upon approval of the Adjustment application, the K-3 visa beneficiary will be given lawful permanent residence.

There was a time when K-3 visas could be granted with a duration of up to ten years. Due to adjustment issues it seems Embassies stopped issuing these visas with 10 year validity. The reason may stem from the fact that government officials may have decided it was inefficient to let the I-130 petitions languish at Embassies abroad while the spouse of a US Citizen enjoyed a 10 year visa. Another issue could be that a US Citizen spouse dying could leave the foreign spouse stranded from an immigration standpoint because the K-3 is a non-immigrant visa category and the US Citizen’s death could result in precluding the foreign spouse from obtaining permanent residence based upon the marriage to the now deceased spouse. For these reasons, it may be prudent to submit an application for adjustment of status as soon as the beneficiary enters the USA on a K-3.

(Nothing herein should be assumed to act as a substitute for legal advice from a competent licensed attorney. No attorney-client relationship is created by reading this blog post.)

Tags: Adjustment of Status, K-1 Visa, K-3 Visa Thailand, us embassy bangkok, US Visa Thailand
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Adjustment of status is necessary after a beneficiary enters the USA and marries the K-1 visa petitioner. Adjustment of Status requires the filing of an I-485 application.

The Difference between “Adjustment of Status” and “Change of Status”

Many people going through the travails of Immigration procedure confuse “adjustment of status,” with “change of status.” In common vernacular the terms are similar, if not synonymous. However, in the context of US Immigration they have different meanings entirely.  If an alien adjusts status, this means that the alien changes from a non-immigrant visa category to an Immigrant visa category and is therefore accorded Lawful Permanent Residence (a Green Card). If a person present in the USA “changes status,” this means that they convert from one non-immigrant visa category to another.

K-1 Visas and Adjustment

As a hybrid visa, the K-1 allows an alien to enter the USA with the intent to marry an American and obtain a
Green Card. While the Green Card application is pending, the alien spouse is permitted to stay stateside. In fact, the alien spouse should not subsequently depart the US without first getting an advance parole travel document. Failure to obtain advance parole will very likely result in a K-1 visa conferee’s petition being canceled.

Provided the alien fiancee remains in status in the United States and the Adjustment of Status is approved, then lawful permanent residence will be conferred. This permanent residence will be conditional for 2 years. 3 months prior to the 2nd anniversary of adjustment, the couple should file for an I-751 removal of conditions of residence in the United States. After the removal of conditions occurs the alien will able to remain a resident unconditionally.

Appeals of Negative Adjustment of Status Decisions

In a situation where the adjustment of status from K-1 to Lawful Permanent Residence has not been approved, the decision can be appealed. Also appeals can be made pursuant to Section 586 of Public Law 106-429 if the appellant meets the requirements set forth in the rules.  Any appeal of an adverse adjustment ruling should be submitted to the Administrative Appeals Unit (AAU) for review. As a general rule, the applicant who has been denied adjustment must appeal within Thirty-Three days of the Immigration Judge’s ruling. Upon receipt of the appeal application and remittance of processing fee the appeal is forwarded to the Board of Immigration Appeals in the US Capital for review and adjudication.

(It should be noted that an appeal should not be confused with a waiver. In cases where a legal ground of inadmissibility is found to exist, the consular officer’s decision is not subject to appeal, but instead a waiver may be obtained.)

Nothing Contained herein should be viewed  as a substitute for legal advice from a licensed professional. Obligations inherent to an attorney-client relationship are not to be assumed to arise simply from reading this post due to the fact that no such relationship exists between the author and reader.

Tags: Adjustment of Status, American Visa, change of status, Fiancee Visa, Immigration appeal, Inadmissibility, K-1 Visa, K1 Visa Thailand, US Immigration, Waiver, waiver of inadmissibility
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The K-1 Application: Frequently Asked Questions

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

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

There are so many forms, which should be used?

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

Where do we file the K1 visa application?

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

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

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

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

Tags: Fiance Visa Thailand, I-129f, I-129f Application, K-1 Visa, K-1 visa application, K1 visa application, US Visa Thailand, USCIS
Posted in Fiance Visa Thailand, K1 Visa Thailand, us embassy bangkok, US Embassy Thailand, US Visa and Immigration, US Visa Thailand | 1 Comment »