Integrity Legal

An integral component of the US visa process is the submission of an affidavit of support which attests to the US Citizen Petitioner’s ability to support a foreign fiance for a K1 visa or spouse for a CR1 Visa, IR1 Visa, or K3 Visa once they are in the United States. Usually, the Federal Poverty Guidelines are used as a basis for ascertaining the guidelines used by Consular Officers and USCIS officers to adjudicate the ability to provide support. In most cases, the Federal poverty guidelines are updated on a yearly basis, as of the time of this writing, the 2010 guidelines have not been published, per se. Instead, the US Congress has extended the guidelines from 2009. The following is quoted from the website of Housing and Human Services:

“Congress has taken action to keep the 2009 poverty guidelines in effect until at least March 31, 2010.

Congressional actions on this matter have been in response to a decrease in the annual average Consumer Price Index (CPI-U) for 2009, projected during 2009 and announced on January 15, 2010 (see http://www.bls.gov/news.release/archives/cpi_01152010.pdf, Table 1A). In the absence of legislative change, this decrease–the first since the poverty guidelines began to be issued in 1965–would have required HHS to issue 2010 poverty guidelines that were lower than the 2009 poverty guidelines; that would have led to the “reduction in eligibility” referred to in the Congressional explanatory language quoted below. Congress took several actions on this matter:

1. On December 19, 2009, Congress enacted and the President signed the Department of Defense Appropriations Act, 2010 (Pub. L. 111-118), which included a provision affecting the poverty guidelines. Section 1012 of this law (as originally enacted, before subsequent amendment) stated that:

Notwithstanding any other provision of law, the Secretary of Health and Human Services shall not publish updated poverty guidelines for 2010 under section 673(2) of the Omnibus Budget Reconciliation Act of 1981 (42 U.S.C. 9902(2)) before March 1, 2010, and the poverty guidelines published under such section on January 23, 2009, shall remain in effect until updated poverty guidelines are published.

The Congressional Record (House) (December 16, 2009, p. H15370) provided the following explanation of this Congressional action in Pub. L. 111-118:

Section 1012 includes a provision to freeze the Department of Health and Human Services poverty guidelines at 2009 levels in order to prevent a reduction in eligibility for certain means-tested programs, including Medicaid, Supplemental Nutrition Assistance Program (SNAP), and child nutrition, through March 1, 2010.

A Federal Register notice about this initial extension of the 2009 poverty guidelines was published on January 22, 2010. (See Federal Register, Vol. 75, No. 14, January 22, 2010, pp. 3734-3735.)

2. On March 2, 2010, Congress enacted and the President signed the Temporary Extension Act of 2010 (Pub. L. 111-144), which included a provision affecting the poverty guidelines. Section 7 of this law amended Section 1012 of the Department of Defense Appropriations Act, 2010, by replacing “March 1, 2010” with “March 31, 2010”. The effect of this was to extend the 2009 poverty guidelines until at least March 31, 2010.”

The issue of one’s ability to provide support to a foreign national is extremely important. Currently, the Federal poverty guidelines appear to still be those of the year 2009 as there is no word that new guidelines will be promulgated. Therefore, those who have an interest in the current guidelines would be wise to keep checking up on this issue as we are due for either a new extension of the 2009 guidelines or a new set of guidelines for 2010.

For further information please see: K1 Visa Requirements.

Tags: Affidavit of Support, CR-1 Visa, CR-1 Visa Thailand, CR1 Visa, CR1 Visa Thailand, Federal Poverty Guidelines 2009, Federal Poverty Guidelines 2010, I-134, I-864, I134, I864, Income Requirements, K-1 Visa, K1 Visa, K1 visa requirements, K1 Visa Thailand
Posted in CR1 Visa, Fiance Visa Thailand, IR1 Visa, K-3 Visa Thailand, K1 Visa, K1 Visa Thailand, K2 Visa, K2 Visa Thailand, K3 Visa, Upcoming Legislation, US Visa and Immigration, US Visa Thailand | No Comments »

How can my Fiancee and I meet the K-1 Visa Requirements?

Many couple’s initial question regarding the K-1 visa is: do we meet the legal requirements for a K-1 visa? Although the K-1 has less requirements than other US visas, there are still requirements that must be met in order to meet the statutory requirements laid out in the US Immigration and Nationality Act.

Basic Requirements in order to Petition for a K-1 Visa for a Foreign Fiancee

With regard to the K-1, a major legal requirement is that the Petitioner be a United States Citizen. Unlike US Marriage visas, a K-1 visa can only be obtained for the fiancee of an American Citizen. In Thailand, this is not n issue that generally arises, but in other areas of Southeast Asia (Vietnam for example), lack of United States Citizenship is often a preclusion for those who would otherwise have filed for a K-1 visa.

Further, the United States Citizen and foreign fiancee must have met in person at least two years prior to submitting the K-1 visa application. In certain cases, particularly involving arranged marriages in which the parties cannot meet in person as dictated by custom, it may be possible to obtain a waiver of this requirement, but in nearly all cases this is a firm requirement in order to qualify for a K-1 visa.

A US Citizen is required to show evidence that he can adequately support a foreign fiancee should she receive a K-1 visa. The Financial requirement is currently set at 125% of the poverty level as designated by housing and human services. For the current figures please see: K-1 visa financial requirements.

K-1 visa requirements imposed by IMBRA and the Adam Walsh Act

There are further K-1 visa requirements imposed by the International Marriage Broker Regulation Act and the Adam Walsh Child Protection Act. If the US Citizen has petitioned for 1 or more K-1 visas in the 2 years prior to current K-1 application, then they will be precluded from obtaining another K-1 without obtaining a waiver from USCIS. As to the Adam Walsh Act, the statute generally requires that the US Citizen mus not have a criminal history involving offenses against children in order to be eligible to apply for a fiancee visa.

K-1 visa requirements: Necessity of a US Immigration Attorney

Where there is a question as to whether or not the US Citizen and Thai fiancee meet the K-1 visa requirements it may be helpful to consult a US Immigration attorney in order to determine if all K-1 visa requirements have been met.

(Please note that none of the content contained herein should be used instead of personalized legal advice from an attorney. Further, this is a general list of K-1 visa requirements, it is non-exhaustive and therefore should not be used as a definitive source regarding K-1 visa requirements. No lawyer-client relationship should be assumed to exist between the author and reader of this article.)

Tags: K-1 visa application, K-1 visa requirements, K1 Visa, K1 visa requirements, US Visa Thailand
Posted in Fiance Visa Thailand, K1 Visa Thailand | 2 Comments »