Integrity Legal

The administration of this blog routinely posts the estimated processing times of the various service centers of the United States Citizenship and Immigration Service (USCIS). The following was quoted directly from the official USCIS website:

Those reading these estimates should bear in mind that these estimates do not necessarily provide an accurate estimate of the overall US visa process. Those seeking a United States visa from outside the United States will likely be required to undergo Consular Processing at a US Embassy or US Consulate abroad. Furthermore, before an immigration petition even reaches a US Embassy overseas the file must first be processed by the National Visa Center. All of these facts are likely to cause the overall US visa process to be significantly longer than the time it takes for USCIS to merely adjudicate an immigration petition.

Tags: Consular Processing, CR-1 Visa, CR-2 visa, CR1 Visa, CR2 visa, I-129f, I-130, I129f, I130, IR-1 Visa, IR-2 visa, IR1 Visa, IR2 visa, K-1 Visa, K-2 Visa, K-3 Visa, K-4 visa, K1 Visa, K2 Visa, K3 Visa, K4 Visa, National Visa Center, United States Citizenship and Immigration Service, US Consulate, US Embassy, US Visa Process, USCIS
Posted in USCIS | No Comments »

In a previous posting on this blog, the recently released answers from the United States Citizenship and Immigration Service (USCIS) to frequently asked questions regarding same sex immigration petitions were analyzed. It recently came to this blogger’s attention that the American State Department has released a similar set of answers to FAQs regarding this topic.  To quote directly from the official website of the U.S. State Separtment:

Q: How does the Supreme Court’s Windsor v. United States decision impact immigration law?

A: The Supreme Court has found section 3 of the Defense of Marriage Act (DOMA) unconstitutional. Effective immediately, U.S. embassies and consulates will adjudicate visa applications that are based on a same-sex marriage in the same way that we adjudicate applications for opposite gender spouses.   This means that the same sex spouse of a visa applicant coming to the U.S. for any purpose – including work, study, international exchange or as a legal immigrant – will be eligible for a derivative visa.  Likewise, stepchildren acquired through same sex marriages can also qualify as beneficiaries or for derivative status. [italics added]

As previously discussed on this blog, the fact that Section 3 of the Defense of Marriage Act (DOMA) has been found unConstitutional by the United States Supreme Court means that an American Citizen, or lawful permant resident, can now petition the United States Citizenship and Immigration Service (USCIS) for imigration benefits for a same sex spouse (or fiance, so long as the petitioner is an American Citizen). However, the US State Department, which is responsible for Consular Processing of visa applications, had yet to make specific comments regarding adjudication of visa application based upon a same sex marriage (or fiance) immigration petition. As can be seen from above, the Department of State has brought their procedures into line with the recent Supreme Court decision.

Of interest to many same sex couples is the issue of jurisdiction as same sex marriages are only recognized by a limited number of US States. The following portion of the aforementioned FAQ focuses on this point:

Q: Do we have to live or intend to live in a state in which same sex marriage is legal in order to qualify for an immigrant or nonimmigrant visa?

A: No. If your marriage is valid in the jurisdiction (U.S. state or foreign country) where it took place, it is valid for immigration purposes.  For more information, please review the following page on the United States Citizenship and Immigration Service’s (USCIS) website. [italics added]

As there are a limited umber of U.S. jurisdictions which recognize and solemnize same sex marriage as well as a number of States in which such marriages are forbade, there have been questions among legal professionals as well as same sex couples regarding whether the U.S. Immigration officers and Consular Officers at various U.S. posts abroad would fail to approve visa applications and immigration petitions based upon the fact that an LGBT couple may be married in one State and residing in another. In a previous posting on this blog, the USCIS’s answer to this question rested on the “law of the place where the marriage took place“. Basically, USCIS appears willing to approve an otherwise valid immigration petition based upon a same sex marriage if the same sex marriage is performed in a State which allows such unions. Apparently, the Department of State has set a similar policy, thereby allowing an otherwise valid same sex marriage visa application, based upon an USCIS-approved immigration petition, to be approved. However, there are some jurisdictions around the world which may recognize same-sex unions, but do not necessarily categorize them as “marriages”. In those circumstances the Department of State had the following to say:

Q: I am in a civil union or domestic partnership; will this be treated the same as a marriage?

A: At this time, only a relationship legally considered to be a marriage in the jurisdiction where it took place establishes eligibility as a spouse for  immigration purposes. [italics added]

Although the above answer appears to be rather straightforward, there is one question, of possibly more significance, that many unmarried same sex couples may be pondering:

Q: I am a U.S. citizen who is engaged to be married to a foreign national of the same sex.  We cannot marry in my fiancé’s country. What are our options? Can we apply for a fiancé K visa?

A: You may file a Form I-129F and apply for a fiancé(e) (K) visa.  As long as all other immigration requirements are met, a same-sex engagement may allow your fiancé to enter the United States for the purpose of marriage.  For information on adjusting status, please review the following page on USCIS’s website:

Since same sex unmarried couples are now permitted to apply for a K-1 visa, it would now appear possible for the LGBT fiance of an American Citizen to apply for a US fiance visa with the intention of marrying in one of those jurisdictions in the United States which recognize same sex marriages.

Another issue which may arise in the context of same sex marriage is the issue of non-immigrant visas (also known as NIVs). These are visa categories which do not confer immigrant status upon those who use them. The Department of State website posted the following information regarding NIVs for same sex married couples:

Q: Can same sex couples now apply for visas in the same classification?

A: Yes. Starting immediately, same-sex spouses and their children are equally eligible for NIV derivative visas.  Same-sex spouses and their children (stepchildren of the primary applicant when the marriage takes place before the child turns 18) can qualify as derivatives where the law permits issuance of the visa to a spouse or stepchild.  In cases where additional documentation has always been required of a spouse applying with a principal applicant, such documentation will also be required in the case of a same-sex spouse… [italics added]

Finally, a point to note for those LGBT couples who are in a situation in which the foreign spouse has children:  

Q: My foreign national spouse has children. Can they also be included with my spouse’s case?

A: Yes, the children of foreign national spouses can be considered “step-children” of the U.S. citizens and can therefore benefit from a petition filed on their behalf in the IR2 category.    In other categories, stepchildren acquired through same sex marriage can qualify as beneficiaries (F2A) or for derivative status (F3, F4, E1-E4, or DV).  You and your spouse must have married before the child turned 18. [itlaics added]

Clearly, the Department of State allows for step-children of Americans or lawful permanent residents to immigrate where the LGBT couple was married prior to the step-child’s 18th birthday. From the information posted on the State Department’s website regarding non-immigrant visas one could infer that an American Citizen’s prospective step-children (i.e. the children of a foreign fiance) may also be eligible to obtain a K-2 visa based upon the bona fide intention of the American Citizen and his or her foreign fiance to marry in the United States.

Tags: American State Department, Consular Processing, CR-1 Visa, CR1 Visa, Defense of Marriage Act, Department of State, derivative visa, DOMA, DOS, fiancé K visa, fiance visa application, gay fiance visa, gay fiance visa application, gay marriage visa, gay marriage visa application, gay visa, I-130, IR-1 Visa, IR-2 visa, IR1 Visa, IR2 visa, K-1 Visa, K-2 Visa, K-3 Visa, K1 Visa, K2 Visa, K3 Visa, LGBT civil union, LGBT domestic partnership, LGBT fiance visa, LGBT fiance visa application, LGBT marriage visa, LGBT marriage visa application, LGBT non-immigrant visa, lgbt visa, marriage visa application, same sex civil union, same sex domestic partnership, same sex fiance visa, Same Sex Marriage, same sex marriage visa, same sex marriage visa application, same sex non-immigrant visa, Section 3 DOMA, United States Citizenship and Immigration Service, US State Department, US Supreme Court, USCIS, visa application, Windsor Case, Windsor decision
Posted in same sex visa | No Comments »

Periodically, the administration of this web log post the estimated processing times from the United States Citizenship and Immigration Service (USCIS). It should be noted that the following processing time estimates are exxactly that: estimates. Some petitions may process more quickly while other petitions may proccess more slowly. To quote directly from the USCIS official website:

It should be also noted that although these USCIS estimated processing times can provide a general framework for understanding the time frames for petition adjudication by USCIS, these estimates do not necessarily reflect the estimated time frame for the entire US visa process especially if the unique circumstances of a given case requires Consular Processing of a US visa application at a US Embassy or US Consulate abroad.

For a married couple seeking an IR1 visa or a CR1 Visa for a foreign spouse of US Citizen the process begins at the USCIS where the initial petition will be adjudicated. Assuming USCIS approves the initial petition, then the petition will be forwarded to the National Visa Center (NVC). NVC will require certain documents before forwarding the application to a US Embassy or Consulate abroad where a foreign spouse must undergo an interview prior to the Consular Officer making a decision regarding visa issuance. In some cases, the Consular Officer may approve the visa application at the interview. Meanwhile, in some circumstances, the officer may deny the application (especially where a ground of inadmissibility is found to exist in the case and under such circumstances the applicant must be granted an I-601 waiver, or something similar, prior to the application receiving further favorable treatment). In some cases, the officer may simply find that some further evidence of the relationship or documentation pertaining to the foreign national is lacking and will thereby deny the application pursuant to section 221(g) of the Immigration and Nationality Act. Under these circumstances, the 221(G) denial may be overcome by presenting further evidence to the Consular Officer and upon their finding that the relevant requirements have been met the application may be approved.

As one can infer from the above example, the USCIS estimateed  processing times may not accurately reflect the total time it may take to obtain a US visa since the process is sometimes more complex than simple USCIS petition approval.

Tags: 221g, American Consulate, American Embassy, American Fiance Visa, American Fiancee Visa, American Marriage Visa, American Visa, American Visa Process, Consular Processing, CR-1 Visa, CR1 Visa, EB-1 visa, EB-2 Visa, EB-3 Visa, EB-5 Visa, EB1 visa, EB2 Visa, EB3 Visa, EB5 Visa, Immigration and Nationality Act, IR-1 Visa, IR1 Visa, K-1 Visa, K-2 Visa, K-3 Visa, K1 Visa, K2 Visa, K3 Visa, L-1 visa, L1 Visa, National Visa Center, NVC, United States Citizenship and Immigration Service, US Consulate, US Embassy, US Fiance Visa, US Fiancee Visa, US Marriage Visa, US Visa, US Visa Process, USA Consulate, USA Embassy, USA Fiance Visa, usa fiancee visa, USA Marriage Visa, USA Visa, USA visa process, USCIS, USCIS Processing, USCIS Processing Time, USCIS Processing Times
Posted in CR1 Visa, EB-1 Visa, EB-2 Visa, EB-3 Visa, EB-4 Visa, EB5 Visa, F1 Visa Thailand, Fiance Visa Thailand, I-601 Waiver, IR1 Visa, J1 visa, J1 Visa Thailand, K-3 Visa Thailand, K1 Visa, K1 Visa Thailand, K2 Visa, K2 Visa Thailand, K3 Visa, L1 Visa, same sex visa, US Visa, US Visa and Immigration, US Visa Thailand, USCIS, Visa Waiver | No Comments »

Although the topic of K-3 visa applications and “administrative closure” by the United States National Visa Center has been a highly discussed topic in recent postings on this web log it is important to note as it can have a tremendous impact upon the K3 visa process. The K3 visa process is often researched by those United States Citizens wishing to obtain a US Marriage Visa for their Malaysian husband or wife. Although the term “K3 visa” has been used colloquially to describe an American spousal visa on the internet, this is not really the classic method of obtaining marriage visa benefits for the spouse of an American. In reality, submitting the petition to obtain CR1 Visa and/or the IR1 Visa benefits has historically been the commonly followed route to bringing a spouse to the USA.

At one time, the United States Citizenship and Immigration Service (USCIS) had such a substantial backlog of marriage visa petitions that the United States Congress and President William Jefferson Clinton enacted legislation commonly referred to as the “Life Act” in an effort to create, among other things, an expedited marriage visa. As a result, the K3 visa category was promulgated. The K4 visa is a derivative visa category intended to be utilized by the children of a K3 visa holder, it is somewhat similar to the K2 visa in the context of the K1 visa process. Approximately ten years after the creation of the K3 visa, USCIS no longer had the processing backlog it once had for marriage visa petitions. This lead to a situation where the National Visa Center was receiving Immigrant visa applications before or with the supplemental K3 application. It would seem that a decision was made to “administratively close” K3 visa applications where the Immigrant visa application arrived before or with the supplemental application. The reason for this policy would seem to be that the K3 visa’s utility is rather negated if the Immigrant visa petition has already been adjudicated.

Those thinking about bringing their Malaysian husband or wife to the USA are well advised to conduct research in an effort to make an informed decision about which type of benefits best suit the needs of the parties. It should also be noted that only a licensed American attorney is qualified to provide US Immigration advice or represent clients before the Department of Homeland Security or its constituent agencies such as USCIS, USCBP, or USICE pursuant to the United States Federal Code. Therefore, those thinking of retaining professional assistance for the immigration process are well advised to check the credentials of anyone claiming expertise in American immigration matters.

For related information please see: K1 Visa Malaysia or K3 Visa Malaysia.

Tags: American Attorney, American Marriage Visa Malaysia, American Visa Malaysia, CR-1 Visa Malaysia, CR1 Visa, CR1 Visa Malaysia, IR-1 Visa, IR-1 Visa Malaysia, IR1 Visa, IR1 Visa Malaysia, K-1 Visa Malaysia, K-2 Visa, K-2 Visa Malaysia, K-3 Visa Malaysia, K-4 visa, K-4 Visa Malaysia, K1 Visa Malaysia, K2 Visa, K2 Visa Malaysia, K3 Visa, K3 Visa Malaysia, K4 Visa, K4 Visa Malaysia, US Marriage Visa, Us Marriage Visa Malaysia, US Visa Malaysia
Posted in CR1 Visa, Department of Homeland Security, IR1 Visa, K1 Visa, K2 Visa, K3 Visa, National Visa Center, US Embassy Kuala Lumpur, US Embassy Malaysia, US State Department, US Visa, US Visa and Immigration, USCBP, USCIS, USICE | No Comments »

The administration of this blog routinely posts information which may be beneficial for those seeking a United States Visa. The lists below show the current estimated processing times for the USCIS service centers located throughout the United States. These figures are current estimates as of June 30, 2010. The Estimated Processing Times for the Vermont Service Center are as follows:

The estimated processing times for the USCIS California Service Center are as follows:

The estimated processing times for the USCIS Nebraska Service Center are as follows:

The estimated processing times for the USCIS Texas Service Center are as follows:

Those interested in learning information about the K1 visa should note that the I-129f petition (the petition for a K1 fiance visa) is now only being accepted at a USCIS lockbox facility rather than directly at Service Center facilities. Further, those researching US Immigration matters for the first time should note that the above processing times do not reflect an accurate time line for the entire US visa process. This is due to the fact that most petitions approved by USCIS must go to the National Visa Center for a security clearance to be initiated. After the initiation of a security clearance the file must then be forwarded to the US Embassy or US Consulate with appropriate jurisdiction over the Beneficiary’s place of residence.

To check USCIS processing times directly online please go to the following page by clicking here.

Tags: American Immigration, American Visa, CR1 Visa, E1 visa, E2 Visa, IR1 Visa, IR2 visa, K1 Visa, K2 Visa, K3 Visa, K4 Visa, L1 Visa, United States Citizenship and Immigration Service, US Consulate, US Embassy, US Immigration, US Visa, USCIS, USCIS California Service Center, USCIS lockbox, USCIS Nebraska Service Center, USCIS Processing Time, USCIS Service Center, USCIS Texas Service Center, USCIS Vermont Service Center
Posted in CR1 Visa, E1 visa, E2 Visa, EB5 Visa, IR1 Visa, K1 Visa, K3 Visa, L1 Visa, National Visa Center, US Consulate ChengDu, US Consulate Chennai, US Consulate Chiang Mai, US Consulate Guangzhou, US Consulate HCMC, US Consulate Hyderabad, US Consulate Kolkata, US Consulate Mumbai, US Consulate Shanghai, US Consulate Shenyang, US Consulate Singapore, US Consulate Wuhan, us embassy bangkok, US Embassy Bangladesh, US Embassy Beijing, US Embassy Burma, US Embassy Cambodia, US Embassy China, US Embassy Dhaka, US Embassy Hanoi, US Embassy India, US Embassy Indonesia, US Embassy Jakarta, US Embassy Japan, US Embassy Kathmandu, US Embassy Kuala Lumpur, US Embassy Laos, US Embassy Malaysia, US Embassy Maldives, US Embassy Manila, US Embassy Myanmar, US Embassy Nepal, US Embassy New Dehli, US Embassy Papua New Guinea, US Embassy Philippines, US Embassy Phnom Phen, US Embassy Port Moresby, US Embassy Rangoon, US Embassy Singapore, US Embassy South Korea, US Embassy Sri Lanka, US Embassy Thailand, US Embassy Tokyo, US Embassy Vietnam, US Embassy Yangon, US Visa, US Visa and Immigration, US Visa Thailand | No Comments »

This author recently discovered that the United States Embassy in China has announced that those seeking non-immigrant visas to the United States of America may seek such travel documents at any US Consulate in China. To quote directly from the website of the American Embassy in China:

Residents of China may apply for a non-immigrant visa at any U.S. Consular Section in China, regardless of the province or city of residence.  We have Consular Sections at the U.S. Embassy in Beijing and the U.S. Consulates General in Chengdu, Guangzhou, Shanghai, and Shenyang.

Although the basic application process is the same, specific times and application procedures at each visa issuing office can vary.  Before applying for a visa, applicants should check each post’s web site for procedures specific to that post.

The U.S. Embassy and Consulates in China provide the following estimates of the next available non-immigrant visa interview appointment date for your reference.  Please be aware appointments are scheduled continuously, and the next available appointment date can change dramatically on short notice.

All appointments must be booked through the Visa Information Call Center at 4008-872-333, which has the most current information about appointment wait times.  Specific appointment procedures can be found here: http://beijing.usembassy-china.org.cn/niv_appointment.html.

The information below is a rough guide only.  Please note this information was last updated on 21 Jul, 2010.

Business/ tourist visa appointments (B1, B2, and B1/B2 visa classes)

As of the date above, this post is booking…	… appointments for the following date:
U.S. Embassy Beijing	3-Aug
U.S. Consulate General Chengdu	19-Aug
U.S. Consulate General Guangzhou	17-Aug
U.S. Consulate General Shanghai	23-Aug
U.S. Consulate General Shenyang	31-Aug

Student (F, M, J visa classes)

As of the date above, this post is booking…	… appointments for the following date:
U.S. Embassy Beijing	28-Jul
U.S. Consulate General Chengdu	6-Aug
U.S. Consulate General Guangzhou	27-Jul
U.S. Consulate General Shanghai	19-Aug
U.S. Consulate General Shenyang	4-Aug

Appointment wait times for particular groups such as petition-based employment applicants, group leisure tours, Amcham applicants, and public affairs passport holders may be different.  Please contact the Visa Information Call Center at 4008-872-333 for more information.

If you require an earlier visa appointment for immediate travel for urgent medical treatment, to meet the start date on your I-20 or DS-2019 form, or for another emergency reason, please see our information about expedited appointments http://beijing.usembassy-china.org.cn/niv_expedite.html.

The information on how to apply can be found below:

The U.S. Consulate in Chengdu:
http://chengdu.usembassy-china.org.cn/appointment.html

The U.S. Consulate in Guangzhou:
http://guangzhou.usembassy-china.org.cn/niv-how-to-apply.html

The U.S. Consulate in Shanghai:
http://shanghai.usembassy-china.org.cn/how_to_apply.html

The U.S. Consulate in Shenyang:
http://shenyang.usembassy-china.org.cn/consular5.html

The U.S. Consulate in Hongkong:
http://hongkong.usconsulate.gov/niv_apply.html

It is interesting to note this recent policy shift as most US Diplomatic and Consular missions in other countries require the applicant to apply for their non-immigrant visa at the Consulate with jurisdiction over the place of residence of the applicant. However, these jurisdictional rules may be altered by officials of the Department of State depending upon the prevailing circumstances in the host country. That said, China is a unique country insofar as it has a large landmass as well as a massive population. As a result, special considerations probably ought to be taken into account when discussing those issues associated with optimally serving those Chinese nationals wishing to travel to the USA.

As the economic and diplomatic relationships between the USA and China become increasingly close, Immigration matters will become more important for those conducting Sino-American business or for those from China who simply wish to visit the United States for recreational purposes.

It should be noted that the above announcement would seem to only apply to those seeking non-immigrant visas such as the B2 visa or the F1 visa. Therefore, the above information does not appear, at the time of this writing, to be applicable to those seeking an Immigrant visa such as a CR1 Visa or an IR1 Visa. Furthermore, it would also seem as though those seeking visa benefits under the K visa category (K1 visa, K2 visa, K3 Visa, K4 visa, etc.) will not be able to “forum shop” for the Post of their choice for the ultimate visa interview.

For more information about US Immigration from China please see: US Visa China.

Tags: American Visa China, China, CR1 Visa, Fiance Visa, Fiance Visa China, IR1 Visa, K1 Visa, K1 Visa China, K2 Visa, K3 Visa, K4 Visa, US Consulate, US Embassy China, US Immigration China, US Visa China
Posted in CR1 Visa, IR1 Visa, K1 Visa, K2 Visa, K3 Visa, US Consulate ChengDu, US Consulate Guangzhou, US Consulate Shanghai, US Consulate Shenyang, US Consulate Wuhan, US Embassy Beijing, US Embassy China, US Tourist Visa, US Visa, US Visa and Immigration | 1 Comment »

As we have previously discussed on this blog, the K1 visa (the category that is used to denote the US fiance visa) has a derivative counterpart that allows for the children of a foreign fiance or fiancee to travel to the United States with their parent. From a legal standpoint, there is nothing particularly interesting about this, but it does become interesting when holders of K2 Visas apply for adjustment of status in order to obtain United States Lawful Permanent Residence also referred to as a “Green Card.” Under the current rules, there is some question as to whether or not a K2 visa holder is allowed to adjust status after they turn 21 years of age. In a recent article posted on the Immigration Slip Opinion Blog, the author noted that issues surrounding K2 adjustment have yet to be fully addressed, but upcoming cases before the Board of Immigration Appeals (BIA) may clarify this vexing issue:

“‘Aging out’ issues: K-2 and CSPA

There are at least seven cases currently before the BIA that raise the question of whether Congress intended that a K-2 visa holder, admitted to the United States as the child of a fiancé(e) of a U.S. citizen, would become ineligible for adjustment of status upon turning 21. In briefs submitted as amici curiae, the American Immigration Council (Immigration Council) and AILA argue that such a result would produce absurd results and could not have been Congress’s intent. After all, the statute permits – and DHS practice allows – a child of a fiancée to enter the country on a K-2 visa up until his or her 21st birthday. In numerous cases, children enter with only a few days to spare before turning 21. Interpreting the statute as allowing these children to enter until age 21, but then also requiring that an adjustment be completed before they turn 21, is simply unreasonable. The only reasonable interpretation of the statute is that a K-2 child must be under 21 at admission but not at the time of adjustment. A recent favorable 10th Circuit decision doesn’t go quite this far, but should help convince the BIA that DHS is wrong. We have asked the BIA to schedule oral argument on this issue and to decide these cases together.”

This author has yet to be convinced of Congress’s original intent, but this issue is interesting and it will be fascinating to see how this issue plays out in the Immigration Courts. A favorable decision could lead to major benefits for children of the Thai fiancees of American Citizens.

For general information about US Immigration from Thailand please see: US Visa Thailand.

Tags: Adjustment of Status, Adjustment of Status K1 Visa, Adjustment of Status K2 Visa, Fiance Visa, Fiance Visa Thailand, Fiance Visas, K1 Visa, K1 Visa Thailand, K2 Visa, k2 visa thailand, US Fiance Visa, US Visa Thailand
Posted in Adjustment of Status, Fiance Visa Thailand, K1 Visa, K1 Visa Thailand, K2 Visa, K2 Visa Thailand, Upcoming Legislation, US Visa and Immigration, US Visa Thailand, USCIS | 25 Comments »

Recently, the United States Tenth Circuit Court held that, under certain circumstances, those holding K-2 visas who wish to adjust status do not “age out.” The tenth circuit’s opinion is found in Colmenares Carpio v. Holder, No. 08-9536 (10th Cir. Jan 12, 2010). To quote directly from the immigration slip opinion blog regarding the underlying facts of the case:

The petitioner entered the United States in K-2 status 6 months before turning 21. His mother married the US citizen within the required 90 days, and the petitioner and his mother applied for adjustment of status before he turned 21. USCIS took two and a half years to decide his application for adjustment of status. USCIS denied the application based on Petitioner’s age on the date of adjudication of the application. An Immigration Judge found that Petitioner was not eligible to adjust status because he was over the age of 21, and the BIA affirmed with a one paragraph unpublished decision.

To further quote the aforementioned blog, within the language of the opinion, the Tenth Circuit Court commenced with an analysis “of [the] statutory construction and found that there is no age limitation on adjustment of status of K-2 visa holders.” That being said, the court’s analysis in this case, “declined to address other scenarios such as when the marriage or the filing of the application occur after turning 21.”

This decision deals with a somewhat narrow set of facts as the K1 visa holder managed to arrive in the US, marry within 90 days, apply for adjustment of status and obtain approval prior to the K2 visa holder’s 21st birthday. The K2 visa holder applied for adjustment of status prior to his 21st birthday, but the case was not adjudicated until afterward.  This court in the above cited opinion has held that based upon these facts, the K2 visa holder did not “age out” and could therefore still adjust status.

For those who are unaware of how the K1 visa process works: the K-1 visa holder enters the United States and has 90 days to get married and apply for adjustment of status. The K1 (or K2) holder is allowed to remain in the USA pending a decision on the adjustment application (in fact is departure is necessary an advance parole travel document should be obtained prior to departure in order to preserve status).

A K2 visa is derivative of a K1 and is intended for the children of K1 visa holders. The statute is somewhat ambiguous regarding K2 visa holder’s rights when it comes to adjustment of status, but the opinion above has clarified some of the issues surrounding K2 visas, but further clarification is needed as in a different factual scenario it is possible that a K-2 visa holder could be barred from adjusting their status.

Tags: Adjustment of Status, Aging Out K-2 Visa, Aging Out K2 Visa, K-1 Visa, K-1 Visa Thailand, K-2 Visa, K-2 Visa Age Out, K-2 Visa Aging Out, K-2 Visa Thailand, K1 Visa, K1 Visa Thailand, K2 Visa, K2 Visa Age Out, K2 Visa Aging Out, k2 visa thailand, US Visa, US Visa Thailand
Posted in Fiance Visa Thailand, K1 Visa, K1 Visa Thailand, K2 Visa, K2 Visa Thailand, Upcoming Legislation, US Visa and Immigration, US Visa Thailand, USCIS | No Comments »

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.

Tags: Add new tag, Adjustment of Status, Adjustment of Status Thailand, Fiance Visa, Fiance Visa Thailand, Fiancee Visa, Fiancee Visa Thailand, K-1 Visa, K-1 Visa Thailand, K-2 Visa, K1 Visa, K1 Visa Thailand, K2 adjustment of status, K2 Visa, k2 visa thailand, US Visa, US Visa Thailand
Posted in Adjustment of Status, Fiance Visa Thailand, K1 Visa, K1 Visa Thailand, Legal Opinion, US Visa and Immigration, US Visa Thailand, USCIS | No Comments »

In a previous blog posting we discussed the K2 child visa which is a derivative visa of the K1 fiance visa. The K2 visa is intended for the unmarried minor children of K1 visa applicants. Both visas have an initial validity of 90 days, but if the K1 visa holder adjusts status, then the K2 visa holder can “piggyback” their application for adjustment onto that of their parent and obtain permanent residence as both a derivative and a step-child.

K3 visas operate in a similar manner as the K1 visa. K3 visas are non-immigrant visas that allow for dual intent. This means that the entrant can have non-immigrant as well immigrant intent at the time of entry in the United States of America. For those with children, the K4 visa is one way of bringing a K3 visa holder’s unmarried minor children to the United States. Like the K2 visa, the K4 visa mirrors the benefits of its parent category. Therefore, if a K3 visa is issued with a validity of 2 years (which has become the common practice), then the K4 will likely be issued with the same validity period. The K4 visa is also a multiple entry visa just like the K3.

The K3 visa category was created at a time when it was taking nearly three years to process regular I-130 visa applications for foreign spouses. It was created with the idea of providing an expedited non-immigrant visa alternative so that bi-national families could be reunited quickly. As the processing time for the I-130 has decreased, so too has the need for the K3.

For those who travel to the United States on a K3 or K4 visa, eventually the issue of adjustment of status will arise. As the K3 and K4 are non-immigrant visas, the holders must apply for a “green card” before being allowed to remain in the USA. K4 beneficiaries can “piggyback” their application for adjustment on their K3 parent’s application.

As stated previously, for most people the K3 visa, and therefore its K4 counterpart, is generally not the most optimum visa because it takes longer to process when compared to the K1 and it does not confer Permanent Residence as the CR1 or IR1 visa does. However, the K3 has its strategic benefits because it can allow the couple the opportunity to have more control over their case’s adjudication, because the statute specifies that the interview forum is based upon the location of the underlying marriage.

Tags: CR1 Visa, Dual Intent Doctrine, Fiance Visa Thailand, IR1 Visa, K1 Visa, K1 Visa Thailand, K2 Visa, k2 visa thailand, K3 Visa, K3 Visa Thailand, K4 Visa, K4 Visa Thailand, Marriage Visa Thailand, US Visa Thailand
Posted in Adjustment of Status, Fiance Visa Thailand, K-3 Visa Thailand, K1 Visa Thailand, Legal Opinion, Miscellaneous, US Visa and Immigration, US Visa Thailand | No Comments »