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Integrity Legal

Posts Tagged ‘K1 Visa Thailand’

23rd November 2009

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.

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21st November 2009

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.

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17th November 2009

As more and more Thais marry foreign nationals the Thai diaspora grows. Many Thai-American couples immigrate to the United States of America using either a fiance visa such as a K1 visa or a marriage visa like a K3 visa or CR1 visa. When these couples have children a few questions arise. First, what is the child’s nationality? Second, is the child entitled to dual nationality. Third, if entitled to a Thai passport how do we go about obtaining one? This is where the Thai Consular Report of Birth Abroad comes into play.

It should be noted that a child born to a Thai mother overseas is born with Thai nationality. A child born to a Thai father abroad is probably Thai although there are some restrictions in the Thai Nationality act. For our purposes we will assume the child is born with Thai nationality.

In order for a Thai national who was born abroad to obtain a Thai passport a Consular Report of Birth Abroad must be obtained by the foreign born Thai. This report of birth abroad is similar to the US Consular Report of Birth Abroad in that it provides proof that the child was born to a Citizen of the Kingdom of Thailand. Pursuant to relevant sections of Thai nationality law, the child of a Thai Citizen is Thai. Therefore, once a report of birth abroad is issued a Thai passport can be acquired.

Some are under the mistaken impression that Thais and Americans cannot have dual nationality. This is not true. There is no provision under Thai law prohibiting dual nationality. Further, United States nationality law does not prohibit dual nationality. The major issue for dual nationals concerns their two home countries. A Thai-American with dual nationality is considered exclusively an American citizen when in the United States of America (or one of its protectorates, possessions, or territories) and exclusively a Thai citizen when in the Kingdom of Thailand.

There can be a great many problems that can arise if one fails to obtain a Thai Consular Report of Birth Abroad on behalf of one’s child. This is particularly true if the child later wishes to reside in Thailand with the same benefits as other Thai citizens. Proving Thai citizenship from birth can be difficult if there has been a long period of time between the child’s birth and subsequent application for a Consular Report of Birth Abroad. There can be particularly daunting problems if the Thai national is a boy because there are military draft requirements for male Thais. If one does not fulfill their draft obligations and subsequently wishes to obtain a Thai passport the bureaucratic difficulties could be legion. Therefore, it may be wise to retain the advice of a Thai attorney or law firm if a man wishes to sort out his Thai nationality after missing his draft year.

A Consular Report of Birth Abroad can be issued at a Thai Embassy or Consulate in the country where the Thai was born. The Thai posts have a section similar to the  American Citizen Services section at a US Embassy which handles Reports of Birth Abroad.

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15th November 2009

In previous posts on this blog we have provided information regarding the updated processing time estimates for K1 visa applications, K3 visa applications, and CR1 visa applications. This is simply an update as to the processing times at the time of this writing. For more information please see other posts on this blog or the website of the United States Citizenship and Immigration Service (USCIS). To go to the USCIS website directly, please click here.

That being said, the following are the processing times for the USCIS Service Center in California. Please note that the I-131 application is for an advance parole travel document.

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 22, 2004
I-130 Petition for Alien Relative U.S. citizen filing for a married son or daughter over 21 January 15, 2002
I-130 Petition for Alien Relative U.S. citizen filing for a brother or sister April 15, 2000
I-130 Petition for Alien Relative Permanent resident filling for a spouse or child under 21 June 01, 2006
I-130 Petition for Alien Relative Permanent resident filling for an unmarried son or daughter over 21 August 22, 2002
I-131 Application for Travel Document All other applicants for advance parole 3 Months

These are the estimated processing times for the USCIS Service Center in Vermont. Please note that the I-131 application is for an advance parole travel document

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 02, 2006
I-130 Petition for Alien Relative U.S. citizen filing for a married son or daughter over 21 June 04, 2006
I-130 Petition for Alien Relative U.S. citizen filing for a brother or sister September 19, 2005
I-130 Petition for Alien Relative Permanent resident filling for a spouse or child under 21 January 18, 2006
I-130 Petition for Alien Relative Permanent resident filling for an unmarried son or daughter over 21 June 04, 2006
I-131 Application for Travel Document All other applicants for advance parole 3 Months

Always remember that USCIS Processing times are estimates only as each and every case is unique and therefore determining the processing time of one particular case can be very difficult.

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14th November 2009

In a previous post on this blog we discussed how the Center for Disease Control, in conjunction with the Department of Homeland Security (DHS) and the United States Citizenship and Immigration Service (USCIS), is in the process of taking HIV off of the list of diseases that will bar entry into the USA. Recently, it has come to this author’s attention that the vaccine for the Human Papillomavirus (HPV) will no longer be a requirement for those seeking to immigrate to the United States of America. Under the current regulations, it is required that all applicants seeking an Immigrant visa, or a non-immigrant dual intent visa such as a K1 visa or K3 visa, are required to be vaccinated against HPV if they are under the age of 26 at the time of application. This requirement can lead to considerable expense for those wishing to obtain United States Immigration benefits.

The American Immigration Lawyers Association (AILA), recently released information from the Final Notice on Criteria for Vaccination Requirements, the follow are excerpts from that notice:

“On April 8, 2009, the Centers for Disease Control and Prevention (CDC) published a notice in the Federal Register (74 FR 15986) seeking public comment on proposed criteria that CDC intends to use to determine which vaccines recommended by the Advisory Committee on Immunization Practices (ACIP) for the general U.S. population should be required for immigrants seeking admission into the United States or seeking adjustment of status to that of an alien lawfully admitted for permanent residence. This final notice describes the criteria that CDC has adopted.”

The notice goes on to discuss the criteria that the CDC and US Immigration officials use to determine whether or not intending immigrants should be required to get a vaccination. After a detailed analysis of the guidelines, policy, and regulations the report concludes:

“Therefore, because HPV does not meet the adopted criteria, it will not be a required vaccine for immigrant and adjustment of status to permanent residence applicants.”

The proposed rule will likely be effective early in 2010. However, it should be noted that until the rule is finalized the current rules and regulations still stand. Therefore, those intending immigrant being interviewed at the time of this writing must still get the required HPV vaccination if they are under the prescribed age. Currently, this is not a requirement for tourist visas, student visas, and exchange visitor visas as such travel documents are classified as non-immigrant. Even though the K1 fiance visa and K3 marriage visa are technically non-immigrant visas they are treated as immigrant visas for the purposes of the aforementioned rule because these visas allow for dual non-immigrant and immigrant intent.

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10th November 2009

A common question asked by many foreign men in Thailand: does the law require that I pay a sinsot (also known as a sinsod, sin sot, sin sod, or in Thai: สินสอด) prior to marriage? The short answer to this question: No. However, an explanation of the cultural importance of the Sinsot may be beneficial in understanding both Thai marriage custom and the cultural underpinnings of marriage in the Kingdom of Thailand.

A Sinsot can best be described as a dowry given by a Thai (or foreign) man to a Thai lady prior to marriage. Generally, the groom-to-be will negotiate with his future father-in-law, or some surrogate if the Thai fiancee’s father is unavailable, regarding the amount of the dowry. In many Thai weddings, the Sinsot is put on display at the wedding ceremony, often the Sinsot will include jewelery or other items of value. In some cases, the parents keep the Sinsot. While in other families it is given to the daughter as a kind of insurance in the event a marital dissolution should occur. In still other situations, the Sinsot is returned to the groom after the wedding ceremony is at an end. Finally, it should be noted that some Thai families do not uphold the Sinsot tradition.

Some have argued that the Sinsot tradition is not deeply embedded in Thai culture, but is simply an effort by Thai in-laws to get money out of a foreign husband. This author cannot speak to that assertion, but the fact remains that in some cases Thai fiances will transfer a Sinot to a Thai fiancee’s family.

Under Thai law, there is no legal requirement that a Sinsot be transferred before a marriage can be registered. A couple can register a marriage at a local Amphur office (Civil Registry) by simply showing up and providing the proper documentation.

However, the practice of remitting a Sinsot seems to be a major aspect of the Thai customary wedding ceremony. Thai people will often have a marriage ceremony without getting the marriage registered. As Thailand does not specifically recognize anything akin to a common law marriage, it is possible that a foreign fiance could pay a Sinsot without legally marrying the Thai fiancee. In many cases involving American fiances marrying Thais, a customary wedding ceremony is often performed without registering the marriage. This allows the couple to remain legally single and therefore eligible to apply for a K1 visa, which is a fiance visa used to travel to the USA for the purpose of executing a legally binding marriage.

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7th November 2009

The passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) has had ramifications that routinely affect immigrants and non-immigrant entrants attempting to enter the US even today. This legislation greatly changed United States Immigration law and procedure.  At the time, IIRIRA was intended to target illegal immigration to the USA. Unfortunately, many of the provisions contained in IIRIRAhave had a critical impact upon legal immigration to the US. This article will explain one of the major powers granted to Customs and Border Protection Officers under IIRIRA: Expedited Removal

When IIRAIRA was passed its provisions Amended section 235 of the Immigration and Nationality Act (INA) to allow for the expedited deportation of foreign nationals who could be deemed inadmissible under either section 212(a)(6)(C) (fraud or misrepresentation) or section 212(a)(7) (lack of documentation) of the INA. The provisions do not call for the decision to be subject to appeal and as a result, a foreign national subjected to expedited removal does not enjoy the same level of due process that most American Citizens take for granted.

If one is subjected to expedited removal, then that alien cannot gain admission to the USA for a period of 5 years. If the alien is subsequently expeditiously removed, then they will be inadmissible to the USA for 20 years. If an alien is subjected to expedited removal, it may be possible for the alien to reenter the USA within their period of inadmissibility, but the alien must first apply for advance permission to reenter the USA, which is akin to an I-601 waiver in that the advance permission must be granted before the alien will be given leave to reenter the country.

Expedited removal should be of particular interest to those seeking to bring their Thai fiancee or spouse to the US on a tourist visa. It is a common misconception that tourist visas can be used to bring a significant other to the US to marry and apply for adjustment of status. Firstly, the US tourist visa is not a dual intent travel document. A tourist visa is intended strictly for those with non-immgrant intent. Therefore, it is unlawful for a foreign fiancee to travel to the USA with undisclosed immigrant intent. That being said, as a practical matter this does happen.  The Customs and Border Protection (CBP) Service can use expedited removal to turn away those attempting to enter the US on a tourist visa if they suspect that the entrant has undisclosed immigrant intent pursuant to section 212(a)(7) of the INA.

This author, along with colleagues in Southeast Asia, has noticed a recent rise in the number of expedited removals of Thais initiated by CBP. In nearly every case, the Thai being removed was the significant other of a US citizen. The Thai nationals removed in these cases were traveling to the US on either a tourist visa or a student visa. Due to this seemingly new trend, it is now more imperative than ever for Thai fiancees and wives of Americans to use the proper K1 fiance visa, K3 marriage visa, or Immigrant visa to travel to the United States.

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5th November 2009

An interesting hypothetical question that is sometimes posed when researching the K1 visa is: who can my Thai fiancee marry once she arrives in the United States of America?

After issuance of a fiance visa, a beneficiary has six months to use the visa for travel to the US. The K1 visa is a single entry visa. Therefore, the beneficiary will only be allowed to enter the United States one time (if multiple entries are necessary, then the beneficiary must obtain an advance parole travel document). After entry, the beneficiary must marry the petitioner and apply for adjustment of status to conditional lawful permanent residence in the USA, but what happens if the beneficiary and petitioner decide not to get married? This occasionally occurs and in this situation the foreign fiancee must leave the USA within 90 days from their date of arrival.

In rare cases, a foreign fiancee will meet another individual and a romantic relationship arises. In this situation, there is not a way for a for fiancee to adjust status to permanent residence based upon marriage to another US Citizen or lawful permanent resident), if that US Citizen (or lawful permanent resident) is not the person specifically named on the K1 visa. In order to adjust status in this situation, the foreign beneficiary would need to leave the USA, obtain a new visa,  and reenter.

The K1 visa was designed to provide the foreign fiancee of a US Citizen with a travel document to be utilized for the sole purpose of specifically marrying the US Citizen petitioner. Therefore, an adjustment of status cannot be executed based upon a marriage to anyone else. There is a misconception that a K1 visa beneficiary can marry anyone in the USA and use that marriage as a basis for adjustment. This author believes that this misconception is based upon the fact that sometimes US Citizens will marry and adjust status with a foreign national present in the US on a tourist visa. Although this practice is very frowned upon by the Department of Homeland Security, it is possible to adjust status this way provided the foreign national did not enter the country with that undisclosed intention. That being said, in the case of the K1, the beneficiary may only adjust status based upon a marriage to the K1 petitioner.

On a related note, after adjustment of status, the foreign spouse will be considered a conditional lawful permanent resident (CR1) of the USA. The conditionality is based upon the continuation of the underlying marital relationship. Should the parties divorce while the beneficiary is in CR1 status, then the foreign spouse’s permanent residence will expire at the 2 year anniversary of the adjustment of status. However, a foreign spouse could remarry during this time period and apply for an adjustment of status based upon a marriage to another US Citizen. In this scenario, it would be highly likely that the officers at the United States Citizenship and Immigration Service (USCIS) would carefully scrutinize the bona fides of both relationships in order to be certain that the relationship is genuine.

No one should attempt to utilize a visa based upon false pretenses, the above scenarios are meant to provide insight into how the Immigration rules apply in practice. Applying for a visa based upon false statements of fact could be construed as an attempt to defraud the US Immigration service.

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3rd November 2009

Although this blog primarily focuses upon United States immigration for couples, we sometimes overlook the fact that the Petitioner may be a woman and the Beneficiary may be a man. Many American women in Thailand meet and fall in love with Thai men. Eventually the US Citizen must return to America and the couple begins to research options for the Thai national’s entrance into the USA.

One of the first visa categories that many couples look at is the category B2 visa also known as the tourist visa. Unfortunately, as in situations with an American man and a Thai lady, the US Embassy in Bangkok is reluctant to issue such visas to those with an American girlfriend, fiancee, or spouse because the relationship itself constitutes a “strong tie” to the US which is evidence bolstering the presumption of immigrant intent under 214(b) of the United States Immigration and Nationality Act (INA). Many tourist visas sought for Thai loved ones of US Citizens are denied under the above section of the INA.

Fortunately, the US fiance visa may be a possibility for the Thai-American couple as the US citizen fiancee could sponsor the Thai fiance for a K1 visa. This visa would allow the Thai man to come to the USA for 90 days. After arrival, the couple must marry and apply for adjustment of status so that the Thai man will be a lawful permanent resident in the United States. Should the couple not marry, then the Thai must leave the US before the 90 day period of lawful Immigration status ends. Generally, it takes between 6 and 7 months to process a K1 visa.

US marriage visas are also an option for the Thai-American couple. The usual method for receiving marriage visa benefits is for the Thai man to marry the American lady at a local Amphur office (Civil registrar office) in Thailand. Once the couple is legally married they will be eligible to apply for a CR-1 visa by filing an I-130 Immigration petition. It usually takes between 11 and 12 months for such a petition to be processed.

For those who wish to expedite the marriage visa process a K3 visa could be employed to shorten the processing time. It currently takes 8 months to process the supplemental I-129f petition for a K3. This type of visa requires the filing of two petitions. At this time, the K3 visa is probably not the best method of obtaining Immigration benefits because the K1 has a faster processing time and the CR1 visa does not require adjustment of status after entry.

All in all, the US Immigration process is basically the same regardless of each parties gender. That being said, US federal law (the Defense of Marriage Act) still requires that the petitioner and beneficiary be of the opposite sex.

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29th October 2009

The National Visa Center (NVC) acts as s sort of clearinghouse and intermediary for United States visa applications. Their duties as an intermediary can be shown in the way the NVC receives cases from the Department of Homeland Security’s United States Citizenship and Immigration Service and forwards them on to United States Embassies and Consulates abroad. This function has been documented in detail in previous posts on this blog. However, NVC functions very differently in cases involving Immigrant visas (CR1, IR1) then it does in cases involving the non-immigrant dual intent family visa categories, most notably the K1 visa and the K3 visa.

A K1 visa application or K3 visa application spends a relatively short period of time in the possession of the NVC. In Immigrant visa cases, this is not true. Applications for a CR1 visa or an application submitted for an IR1 visa are held at NVC for a substantially longer period of time. Unlike the K1 and K3 visa categories, packet 3 is sent out by the NVC and not the US Embassy abroad.

The United States Immigration authorities at the American States Department have made the administrative decision to handle all packet three matters at NVC rather than making the Consulates and Embassies handle this aspect of the process. In a way, the decision makes sense as the NVC is in a better position to specialize in this phase of the process. Also, NVC conducts a rather detailed security clearance to make certain that the prospective immigrant is not a threat to National security. Also, NVC will take the affidavit of support fee and process the United States Citizen or Lawful Permanent Resident’s I-864 Affidavit of Support.

It should be noted that in cases where the petitioner is resident abroad, it may be possible to submit a Direct Consular Filing (DCF) or a USCIS local filing. In cases such as this, the case file will not be sent to the NVC, but will either be processed entirely at the Embassy or Consulate; or it will be sent from the local USCIS office directly to the US Embassy. In the case of Thailand, the Bangkok office of USCIS will send all approved locally filed Immigrant visa applications directly to the US Embassy in Bangkok. As the USCIS office is directly across the street from the US Embassy, sending this file directly to the Embassy is usually a very straightforward process.

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