Integrity Legal

It recently came to this blogger’s attention that the United States Consulate-General in Chiang Mai will be suspending services from September 12, 2016. It may be best to quote directly from the US Consulate’s website:

Except for U.S. citizen emergencies, consular services at the U.S. Consulate General in Chiang Mai will be suspended from September 12, 2016 to November 1, 2016, due to necessary renovations to the Consular Section…All nonimmigrant visa (NIV) applicants who intend to travel during this period should make appointments with the U.S. Embassy in Bangkok…The American Citizen Services (ACS) Unit will remain available by email and phone for emergency U.S. citizen services such as death and welfare/whereabouts cases; and we will continue to accept voter registration, absentee ballot requests, and absentee ballots.  Also, please note that the ACS Unit will conduct several U.S. citizen outreach events in and around Chiang Mai during this period…

Those wishing to learn more are well advised to click the link above.

Those seeking non-immigrant visas such as US Tourist visas and US student visas will, at least for the time being, be required to interview for such travel documents in Bangkok. It should be noted that this announcement has no impact upon those seeking immigrant visas such as the IR-1 visa or the CR-1 visa nor does it change the current processing protocols of the K-1 fiancee visa as although such fiance visas are considered non-immigrant visas they are processed in much the same manner as immigrant visas. As dual intent visas, holders of the K-1 visa may enter the United States in non-immigrant status with the intention of remaining and thereby use the adjustment of status process in order to convert into lawful permanent resident status (aka Green Card holder status) once in the USA. All of the aforementioned visa categories are initially adjudicated by the United States Citizenship and Immigration Service (USCIS), a division of the Department of Homeland Security; before undergoing further Consular Processing at the United States Embassy in Bangkok, under the jurisdiction of the U.S. Department of State.

Notwithstanding the continuation of regular immigration services for those wishing to permanently move to the USA. It would appear that this situation may cause inconvenience for those in the North of Thailand seeking American Citizen Services such as passport renewal, notarization, and issuance of Consular Reports of Birth Abroad (CRBA). Other than occasional Consular outreach, many of these services will apparently need to be obtained from the Post in Bangkok during this renovation period.

Tags: Adjustment of Status, American Citizen Services, American Consulate Chiang Mai, American Embassy Thailand, consular report of birth abroad, dual intent visa, Green Card, Lawful Permanent Resident, United States Citizenship and Immigration Service, United States Consulate General Chiang Mai, United States Embassy in Bangkok, US Consulate Chiang Mai, us embassy thailand, US student visas, US Tourist visas, USCIS
Posted in US Consulate Chiang Mai | No Comments »

The United States government has recently shut down due to the inability of Congress to make a deal regarding the budget and current debt ceiling level. The reverberations from this recent turn of events will likely be felt in many sectors of the United States government and by those who may have business with the US government. As a general matter, governmental functions which are deemed essential will still be available. However, those governmental activities and employees deemed non-essential will likely be discontinued and work furloughed until such time as Congress reaches an agreement. It has been 17 years since the United States government last shut down. As of the time of this writing, the Office of Management and Budget has instructed supervisors of various governmental entities to “execute plans for an orderly shutdown.”

What is the practical impact of the government’s closure upon the immigration process? It recently came to this blogger’s attention that the following has been posted on the official website of the United States Embassy in Bangkok, Thailand:

The U.S. Embassy in Bangkok and Consulate General Chiang Mai remain open to the public. As always, our priorities remain providing safety, security, and service to U.S. citizens. We are open for all consular services, including visa processing.

It could be inferred that the Embassy is attempting to dispel rumors that a shutdown will negatively impact the processing of US visa applications as well as applications for US passports, Consular Reports of Birth Abroad (CRBA), and various notarial services requested by Americans living in Thailand. Hopefully, the recently announced government shutdown will not last long and thus not cause any great problems for those seeking visas to the United States of America. However, a protracted shutdown could mean that processing of US visa applications could move at a slower pace, or, in a worst case scenario, be discontinued until such time as a budget is agreed upon. Hopefully, this will not happen and the processing of applications will continue apace.

Meanwhile, it is likely that the shutdown will not affect processing of immigration petitions at the United States Citizenship and Immigration Service (USCIS). As USCIS is funded by the fees paid by petitioners, it seems likely that a government shutdown will not adversely impact those seeking immigration benefits from USCIS. Again, as the United States has not seen a government shutdown in nearly two decades some of the details about the impact of the current shutdown remain somewhat speculative. Readers of this blog should take note that further information will be provided herein as it becomes available.

Tags: Consular Reports of Birth Abroad, CRBA, Office of Management and Budget, United States Citizenship and Immigration Service, US Consulate Chiang Mai, us embassy bangkok, us embassy thailand, US passports, US Visa Application, US visa application Thailand, US Visa Process, USCIS
Posted in Adjustment of Status, CR1 Visa, Department of Homeland Security, E1 visa, E2 Visa, EB-1 Visa, EB-2 Visa, EB-3 Visa, EB-4 Visa, EB5 Visa, F1 Visa Thailand, Fiance Visa Thailand, I-601 Waiver, J1 visa, J1 Visa Thailand, K-3 Visa Thailand, K1 Visa, K1 Visa Thailand, K3 Visa, L1 Visa, Legal News, National Visa Center, News, same sex visa, US Consulate Chiang Mai, US Embassy Thailand, US Tourist Visa, US Visa, US Visa Thailand, USCIS | No Comments »

The following are the estimated processing times for petitions submitted to the United States Citizenship and Immigration Service (USCIS). These processing time estimates are quoted directly from the official website of USCIS:

It should be noted that the time it takes to process an immigration petition with USCIS is not the same as the time it takes to undergo the entire US visa process since processing at the National Visa Center and Consular Processing at a US Embassy or US Consulate abroad can be very time consuming.

Tags: United States Citizenship and Immigration Service, US Immigration PEtition, USCIS, USCIS Processing Times
Posted in US Visa and Immigration | No Comments »

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 »

Many Lesbian, Gay, Bisexual, and Transgender (LGBT) couples have questions regarding United States Immigration in the aftermath of the Supreme Court’s finding in the Windsor case that Section 3 of the Defense of Marriage Act (DOMA) is unConstitutional. Both the United States Citizenship and Immigration Service (USCIS) and the Department of State have previously issued answers to frequently asked questions on this topic. In a previous posting on this blog, USCIS’s answers to these FAQs were discussed. However, it recently came to this blogger’s attention that the USCIS has issued further answers to such FAQs to further clarify their position on this issue. To quote directly from these new answers to FAQs on the official website of the USCIS:

Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa? NEW
A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be denied as a result of the same-sex nature of your marriage.

Clearly American Citizens or Lawful Permanent Residents may petition for an immigrant spouse visa such as an IR1 visa, CR1 visa, or by extension a K3 visa (as the K-3 visa petition is a supplementary petition based upon the initial petition for an immigrant visa). Furthermore, when applying for the visa at a US Embassy or US Consulate abroad during the Consular Processing phase of the US immigration process the application will be viewed in the same way as an application based upon a different-sex marriage. Also, adjustment of status applications for the same sex spouse of a US Citizen or Lawful Permanent Resident will be adjudicated in the same manner as a similar application for a different-sex spouse.

A question for many same sex and LGBT couples concerns the State of the couple’s residence versus the State of marriage since there are only a few States which allow such marriages while other states either do not recognize such unions or specifically forbid such unions. USCIS issued further clarification on this issue in their recently updated FAQ section:

Q3: My spouse and I were married in a U.S. state or a foreign country that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse? NEW
A3: Yes. As a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes.  Just as USCIS applies all relevant laws to determine the validity of an opposite-sex marriage, we will apply all relevant laws to determine the validity of a same-sex marriage..

There may be some limited circumstances where the law of the couple’s residence may determine their legal standing on certain issues. However, as can be seen from the above quoted FAQ, the USCIS appears to primarily defer to the law of the State which legalized the marriage when determining whether the couple is eligible for immigration benefits.

Finally, this blogger does not recall the USCIS previously answering questions regarding immigration petitions which were filed with USCIS prior to the Supreme Court’s holding that Section 3 of DOMA violates the U.S. Constitution. The following section of USCIS’s recently expanded FAQ section would appear to respond to this inquiry:

Q5. My Form I-130, or other petition or application, was previously denied solely because of DOMA.  What should I do?
A5.  USCIS will reopen those petitions or applications that were denied solely because of DOMA section 3.  If such a case is known to us or brought to our attention, USCIS will reconsider its prior decision, as well as reopen associated applications to the extent they were also denied as a result of the denial of the Form I-130 (such as concurrently filed Forms I-485).

• USCIS will make a concerted effort to identify denials of I-130 petitions that occurred on the basis of DOMA section 3 after February 23, 2011.  USCIS will also make a concerted effort to notify you (the petitioner), at your last known address, of the reopening and request updated information in support of your petition.
• To alert USCIS of an I-130 petition that you believe falls within this category, USCIS recommends that you send an e-mail from an account that can receive replies to USCIS at [email protected] stating that you have a pending petition.  USCIS will reply to that message with follow-up questions as necessary to update your petition for processing.  (DHS has sought to keep track of DOMA denials that occurred after the President determined not to defend Section 3 of DOMA on February 23, 2011, although to ensure that DHS is aware of your denial, please feel free to alert USCIS if you believe your application falls within this category.)
• For denials of I-130 petitions that occurred prior to February 23, 2011, you must notify USCIS by March 31, 2014, in order for USCIS to act on its own to reopen your I-130 petition.  Please notify USCIS by sending an e-mail to USCIS at [email protected] and noting that you believe that your petition was denied on the basis of DOMA section 3.

Once your I-130 petition is reopened, it will be considered anew—without regard to DOMA section 3—based upon the information previously submitted and any new information provided.   USCIS will also concurrently reopen associated applications as may be necessary to the extent they also were denied as a result of the denial of the I-130 petition (such as concurrently filed Form I-485 applications).

Additionally, if your work authorization was denied or revoked based upon the denial of the Form I-485, the denial or revocation will be concurrently reconsidered, and a new Employment Authorization Document issued, to the extent necessary.  If a decision cannot be rendered immediately on a reopened adjustment of status application, USCIS will either (1) immediately process any pending or denied application for employment authorization or (2) reopen and approve any previously revoked application for employment authorization.  If USCIS has already obtained the applicant’s biometric information at an Application Support Center (ASC), a new Employment Authorization Document (EAD) will be produced and delivered without any further action by the applicant.  In cases where USCIS has not yet obtained the required biometric information, the applicant will be scheduled for an ASC appointment.

• If another type of petition or application (other than an I-130 petition or associated application) was denied based solely upon DOMA section 3, please notify USCIS by March 31, 2014, by sending an e-mail to USCIS at [email protected] as directed above.  USCIS will promptly consider whether reopening of that petition or application is appropriate under the law and the circumstances presented.

No fee will be required to request USCIS to consider reopening your petition or application pursuant to this procedure.  In the alternative to this procedure, you may file a new petition or application to the extent provided by law and according to the form instructions including payment of applicable fees as directed.

Clearly, USCIS is committed to implementing policies and regulations based upon the US Supreme Court’s recent finding. By reopening previously denied petitions and taking steps to provide same sex couples with the same standing as different-sex couples in future immigration adjudications this agency is making great strides toward equalizing the US family immigration process for families of all kinds.

To review the recently released information on this topic from the Department of State please see: Consular Processing.

Tags: Adjustment of Status, American Consulate, American Embassy, American State Department, Consular Processing, CR-1 Visa, CR1 Visa, Defense of Marriage Act, Department of State, DOMA, DOS, IR-1 Visa, IR1 Visa, K-3 Visa, K3 Visa, LGBT marriage, lgbt visa, Same Sex Marriage, same sex visa, United States Citizenship and Immigration Service, US Consulate, US Embassy, US Supreme Court, US visa LGBT, US visa same sex marriage, USCIS, visa application, Windsor, Windsor Case, Windsor decision
Posted in Adjustment of Status, CR1 Visa, Fiance Visa Thailand, IR1 Visa, K-3 Visa Thailand, K1 Visa, K1 Visa Thailand, K3 Visa, lgbt immigration, same sex visa, US State Department, US Visa, US Visa and Immigration, US Visa Thailand, 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 »

It has come to this blogger’s attention that the United States Citizenship and Immigration Service (USCIS) has issued a new set of answers to frequently asked questions stemming from the recent decision by the United States Supreme Court which overturned Section 3 of the Defense of Marriage Act (DOMA). In previous postings on this blog the fact that lawful permanent residents and American Citizens with same-sex spouses can now file for immigration benefits for their same sex spouse has been discussed at length. That said, USCIS discussed this issue in their recently issued FAQ release, to quote directly from the USCIS website:

Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa?
A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage. [italics added]

As previously pointed out on this blog, the ability of American Citizens to file for immigration benefits for a same-sex foreign spouse is a fairly clear cut result of the recent Supreme Court decision finding Section 3 of DOMA unConstituional. It should be noted that the USCIS seems to also imply that a K3 visa would also now be a possibility for same sex couples as it could be construed to be an “applicable accompanying application”. However, an issue that was not so clearly dealt with by the Supreme Court’s decision pertains to the K-1 visa (US fiance visa). As Fiance visas are, by  definition, not based upon a marriage, but an intended marriage; further clarification from USCIS on these types of visas post-DOMA is considered by some to be quite helpful. To quote further from the aforementioned USCIS FAQ section:

Q2. I am a U.S. citizen who is engaged to be married to a foreign national of the same sex.  Can I file a fiancé or fiancée petition for him or her?
A2. Yes.  You may file a Form I-129F.  As long as all other immigration requirements are met, a same-sex engagement may allow your fiancé to enter the United States for marriage. [italics added]

This clarification from USCIS regarding the fiance visa in the context of same sex marriage, while helpful, is slightly qualified by the next section of the same FAQ page:

Q3: My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse?
A3: Yes, you can file the petition. In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward. [italics added]

Clearly, the US fiance visa is now a viable option for same sex couples with a bona fide intention to marry in those jurisdictions of the United States which recognize same sex marriage. Since the jurisdiction of the celebration of the intended marriage is USCIS’s primary concern it would appear that a K1 visa itself will be a possibility for same sex couples in the future. However, it would appear that some ancillary immigration benefits may or may not be available at this time for some same sex bi-national couples depending upon the unique residency circumstances of those couples.

Of further interest to some same sex couples will likely be the fact that there are benefits for the foreign same sex spouse of an American Citizen with respect to naturalization:

Q8. Can same-sex marriages, like opposite-sex marriages, reduce the residence period required for naturalization?
A8. Yes.  As a general matter, naturalization requires five years of residence in the United States following admission as a lawful permanent resident.  But, according to the immigration laws, naturalization is available after a required residence period of three years, if during that three year period you have been living in “marital union” with a U.S. citizen “spouse” and your spouse has been a United States citizen.  For this purpose, same-sex marriages will be treated exactly the same as opposite-sex marriages. [italics added]

Therefore, the same sex spouse of an American Citizen will be treated the same way as the opposite sex spouse of an American for purposes of obtaining US Citizenship based upon the couple’s marriage and lawful permanent residence obtained thereby. Finally, of further note in this recently issued USCIS FAQ page relates to the I-601 waiver process:

Q9. I know that the immigration laws allow discretionary waivers of certain inadmissibility grounds under certain circumstances.  For some of those waivers, the person has to be the “spouse” or other family member of a U.S. citizen or of a lawful permanent resident.  In cases where the required family relationship depends on whether the individual or the individual’s parents meet the definition of “spouse,” will same-sex marriages count for that purpose?
A9.Yes.   Whenever the immigration laws condition eligibility for a waiver on the existence of a “marriage” or status as a “spouse,” same-sex marriages will be treated exactly the same as opposite-sex marriages. [italics added]

Waivers of inadmissibility can be difficult to obtain under certain circumstances as they are, by definition, a discretionary waiver. However, one major hurdle for many same-sex bi-national couples in the US immigration sphere has been cast aside by the comendable decision of the United States Supreme Court. USCIS deserves comendation as well for their efforts to quickly and decisively implement policies which bring immigration regulations in line with changes in the law.

Readers are encouraged to read the USCIS website and the FAQ section quoted above to find out further details regarding immigration regulations pertaining to same sex couples.

For related information please see: US Visa Thailand.

Tags: Adjustment of Status, American naturalization, celebration of marriage, Defense of Marriage Act, DOMA, Fiance Visas, Fiancee visas, I-129f, I-130, I-601 Waiver, I-601 waiver process, I129f, I130, I601 Waiver, immigration law, K-1 Visa, K-1 visas, K-3 Visa, K1 Visa, K1 visas, K3 Visa, LGBT fiance, lgbt fiancee, marital union, Naturalization, Same Sex Bi-National Couple, Same Sex Bi-National Couples, same sex fiance, same sex fiancee, Same Sex Marriage, same sex spouse, same-sex engagement, Section 3 DOMA, United States Citizenship and Immigration Service, United States Supreme Court, US Fiance Visa, US Fiance visas, US Fiancee Visa, US Fiancee visas, US Naturalization, USA naturalization, USCIS, USCIS FAQ, waiver of inadmissibility
Posted in Fiance Visa Thailand, I-601 Waiver, K-3 Visa Thailand, K1 Visa, K1 Visa Thailand, K3 Visa, same sex visa, US Visa, US Visa and Immigration, US Visa Thailand, USCIS, Visa Waiver | No Comments »

In a landmark case, UNITED STATES v. WINDSOR, EXECUTOR OF THE ESTATE OF SPYER, ET AL., the United States Supreme Court in a 5-4 decision has ruled that Section 3 of the so-called Defense of Marriage Act (DOMA) is unconstitutional. For those unfamiliar with this issue, section 3 of DOMA reads as follows:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

The upshot of this legislation is that up until the Supreme Court handed down this ruling same sex couples have not been able to receive the same federal benefits as different-sex couples. In the case at hand, a widow of a same sex spouse who was legally married and residing in the State of New York (one of 12 States which recognize same sex marriage) was barred from receiving an estate tax refund because the federal government, citing section 3 of DOMA, did not recognize the couple’s marriage. To quote directly from the majority opinion of the Supreme Court:

DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment…By history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the separate States. Congress has enacted discrete statutes to regulate the meaning of marriage in order to further federal policy, but DOMA, with a directive applicable to over 1,000 federal statues and the whole realm of federal regulations, has a far greater reach. Its operation is also directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect…By seeking to injure the very class New York seeks to protect, DOMA violates basic due process and equal protection principles applicable to the Federal Government. The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U.S. 528, 534–535. DOMA cannot survive under these principles. Its unusual deviation from the tradition of recognizing and accepting state definitions of marriage operates to deprive same-sex couples of the benefits and responsibilities that come with federal recognition of their marriages.

In order to shed further light upon this decision it is necessary to quote the Fifth Amendment of the United States Constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

As the majority of the Court held that “DOMA violates basic due process and equal protection principles applicable to the Federal Government” pursuant to the Fifth Amendment it appears that from this point on those same sex couples legally married in a State which recognizes same sex marriage (or possibly in international jurisdictions which legalize same sex marriage as the parties in the Windsor case were actually married in Canada) will receive federal recognition of those marriages and be able to enjoy federal benefits arising from their marital status. The question of interstate recognition of same sex marriage remains a bit murky as there has yet to be a decisive ruling regarding this issue, but the issue of federal recognition of a same sex marriage would appear to be fully resolved.

How Might This Decision Impact The United States Immigration Process?

In the past, same sex bi-national couples were unable to receive immigration benefits such as a Green Card or a K-1 visa (fiance visa) because The Defense of Marriage Act (DOMA) precluded federal recognition of same sex marriage. This preclusion even applied to those same sex bi-national couples who were married in one of the 12 States which recognize same sex marriage (some could argue that there are now 13 States which recognize same sex marriage since the Supreme Court in another decision handed down at roughly the same time as the Windsor decision effectively leaves the door open for California to legalize same sex marriages). As a result of the federal government failing to recognize same sex marriage agencies such as the United States Citizenship and Immigration Service (USCIS) could not grant immigration benefits such as lawful permanent residence (Green Card status) to the same sex spouse of an American Citizen or lawful permanent resident solely based upon the couple’s marrriage. Now, that would appear to no longer be the case, although the Court did not explicitly rule upon the issue of immigration benefits for same sex couples the fact that the Court struck down section 3 of DOMA means that a same sex marriage must be accorded the same federal recognition as a different-sex marriage. Therefore, it is logical to surmise that the Court’s decision should allow same sex couples to undergo adjudication for immigration benefits such as visas and Green Cards in a manner similar to different-sex couples. There are likely to be complications as federal regulators implement policies which comport with the Court’s decision, but one thing is clear: the Windsor decision is a major victory for same sex bi-national couples.

For related information please see: Equal Protection or same sex marriage.

Tags: Defense of Marriage Act, DOMA, equal protection, Fiance Visa, Fifth Amendment, Green Card, K-1 Visa, Same Sex Marriage, same sex spouse, same sex visa, United States Citizenship and Immigration Service, UNITED STATES v. WINDSOR, USCIS
Posted in same sex visa | No Comments »

In order to provide pertinent information to those researching issues associated with American immigration from Asia the administration of this web log routinely posts the holiday closing schedules of various US posts in Southeast Asia. To quote directly from the official website of the United States Embassy in Vietnam:

Those wishing to visit the official website of the US Embassy in Vietnam are encouraged to click HERE.

Those seeking services which can only be provided by an American Mission abroad, such as: Consular Reports of Birth Abroad, American notarial services, passport renewals, or passport issuance are encouraged to ascertain whether it is necessary to schedule an appointment online prior to traveling to the post as this  can greatly streamline processing of requests.

On a related note, it recently came to this blogger’s attention that the US Embassy in Vietnam will apparently no longer process adoption cases. In order to provide further insight into these developments it is necessary to quote directly from a posting on the official website of the United States Citizenship and Immigration Service (USCIS) dated February 2, 2012:

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) today announced it cannot approve a Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative, filed on behalf of a child to be adopted from Vietnam. The Department of State (DOS) has determined that Vietnam has not proven capable of meeting its obligations under The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention). As a result, DOS consular officers cannot issue the required Hague Adoption Certificate or Hague Custody Declaration…Until further notice, USCIS will not be able to approve any Form I-800 that is filed on behalf of a child to be adopted from Vietnam. Because U.S. prospective adoptive parents cannot complete the immigration process for an adopted child from Vietnam, USCIS strongly urges parents to not file any Form I-800 on behalf of a child to be adopted from Vietnam…

Readers are encouraged to click upon the hyperlinks noted above to read this posting in detail. Foreign adoption can be a complex and, at times, convoluted process hopefully this announcement will spare prospective adoptive parents from any undue frustration.

In cases in which an American fiance or spouse is seeking a K-1 visa (fiance visa), K-3 visa (non-immigrant spouse visa), or either an IR-1 visa or CR-1 visa (immigrant spouse visa) there may be a misconception that adoption is necessary to bring the child of the foreign fiancee or spouse to the USA. Under such circumstances this may not be the case if the foreign spouse is the sole parent, sole custodial parent, or the other parent consents to the child’s immigration to the USA since a derivative visa category may be available to the child in the form of visas such as the K-2 visa, the K-4 visa, or the IR-2/CR-2 visa. In any case, United States immigration can be a complicated endeavor and the process may vary depending upon the circumstances of the family in question.

Tags: Adoption, Adoption from Vietnam, CR-1 Visa, CR-2 visa, Hague Adoption Certificate, Hague Adoption Convention, Hague Custody Declaration, Holiday Closing at US Embassy Vietnam, I-800, IR-1 Visa, IR-2 visa, K-1 Visa, K-2 Visa, K-3 Visa, K-4 visa, The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, United States Citizenship and Immigration Service, US Embassy Vietnam, USCIS
Posted in CR1 Visa, IR1 Visa, K1 Visa, US Embassy Vietnam | No Comments »