The K1 fiancee visa has been a popular travel document for those who have a foreign loved one whom they wish to bring back to the United States. In 2009, the K1 visa process remained largely unchanged when compared to 2008. However, there may be changes in store for the K1 visa in 2010. This piece explores the possible modifications that couples could expect to encounter in the year 2010.

For those not familiar with the K1 visa process this is a short overview:

First, a K1 visa petition is filed by a US Citizen fiance at a USCIS Service Center in the United States. USCIS adjudicates the petitioner and, if approved, forwards it on to the National Visa Center. The US State Department’s National Visa Center (NVC) conducts a security clearance and then sends the case to the Embassy or Consulate with proper jurisdiction. Nearly all K-1 fiancee visa applications for those resident in Thailand are adjudicated at the American Embassy in the capital city of Bangkok. Consular Officers at the American Embassy will initiate a visa interview and, assuming the application is approved, issue the K-1 fiancee visa.

Overall, the above outlined process will likely remain the same for most couples in 2010. Although, a recently recommended rule from the American State Department would increase the US Consular processing fees. A current proposal would raise these fees from one hundred and thirty-one to three hundred and fifty dollars. From nearly anyone’s perspective, a fee increase of $220 is substantial. This might have an affect upon those who decide to file for a K-1 fiance visa as this three hundred and fifty dollar Consular Processing fee could turn out to be a prohibitive expenditure.

Another possible change in 2010: Comprehensive Immigration Reform. Currently, United States Senators, Congressmen, and even the President are discussing ways of reforming the US Immigration system. Some have wondered if these changes to the US Immigration system will impact the K category visas under the Immigration and Nationality Act. It is this author’s opinion that 2010 will not likely see dramatic changes for those seeking a K1 fiancee visa, but by being prepared for upcoming legislation attorneys, applicants, and petitioners will be able to better anticipate possible problems before they arise.

(Please be advised that the above post should not be taken as a sufficient substitute for individualized legal advice from a competent licensed lawyer. The above information is for general purposes only and should not be construed as advice regarding a specific set of factual circumstances. For those interested in information about United States Immigration, it may be best to contact a licensed American Immigration attorney.)

The following article explains the so-called “Widow’s Penalty.” Inconsistencies in the United States Immigration and Nationality Act have the effect of placing widows and widowers of United States Citizens in untenable positions should the American spouse pass away before some crucial phase of the Immigration process.

United States Immigration is a deep area of law as it is highly statute driven. There are some facets of US Immigration law that are byzantine, to say the least, one issue that can become very complicated and uncomfortable concerns the loss of immigration benefits upon the death of a US Citizen spouse.

Where a foreign national marries a US Citizen, if the foreign spouse wishes to obtain unconditional US Permanent Residence, then they must run a “gauntlet” of various adjudicatory proceedings to determine the bona fides of the marriage. From a certain perspective one could argue that scrutiny begins when the American Citizen files the K1 visa application. After initial approval, the application will be forwarded to the US Embassy (or it’s Consulate Counterpart) with jurisdiction over the foreign fiance’s place of residence. The Consulate will interview the applicant and if satisfied that the marriage is genuine, they will issue a K1 visa. The foreign fiancee will then pass through an inspection point at a port of entry in the United States where Customs and Border Protection officers will make another determination as to admissibility.

After lawful admission in the United States, the non-Citizen fiancee must marry the Citizen fiance and apply for adjustment of status wthin 90 days. In many cases, the marriage is executed and the non-citizen spouse has their status adjusted. They are accorded conditional resident status. After two years in conditional permanent resident status, the foreign spouse, along with her American husband, will need to file to have the conditionality of residence lifted and thereby make her an unconditional lawful permanent resident. The “Widow’s Penalty” can come into play before either the approval of the adjustment of status or the approval of the petition to lift of conditions of residence. Should the American spouse pass away before the adjustment of status or application for lift of conditions is approved, then technically the applicant no longer meets the requirements necessary to lift conditions or adjust status. Therefore, the foreign widow could fall out of status because they are no longer married to an American. US Courts have attempted to address this problem by interpreting statutes to allow foreign spouses to remain in the United States. The Department of Homeland Security has also taken measures to defer inspection of foreign widows and widowers in order to provide a sort of amnesty for those placed in such a difficult position.

This issue has not been fully dealt with as there are many conflicting interpretations of the current law. The current members of the US judiciary seem to be in favor of eliminating this inequitable provision of US Immigration law as it leads to unfair outcomes for widows and widowers of American Citizens and Permanent Residents.

This post is meant to provide information regarding the many facets of the US Immigration process for Thai Fiancees. All over the world wide web there are websites which claim expertise in US Visas from Thailand. The intention of this piece is to simply provide information and insight.

The K1 visa process is relatively long, and at times, the cause of some consternation. In certain instances, a Thai-American couple will wait between 5-6 months before obtaining approval from USCIS. Upon approval, the application must be sent to the National Visa Center and then finally, in the case of Thai fiancee visa applications, to the file will be sent to the US Embassy in Thailand. For many, this process can be aggravating. In a large number of instances, the wait eventually ends and the visa application is approved.

Once the visa is issued, some American Citizen fiances become concerned about the information and dates noted on the visa itself. A major source of anxiety for some is the note on the visa which says, “K1 Petition Expires Month Day, Year.” Many American Citizens mistakenly believe that this is the end of the visa’s validity. As a practical matter, the visa is valid for going to the USA until its expiration. Generally, K1 visas are issued with a six month validity period. Although, they could be issued with more or less validity as it is technically at the discretion of the Consular Officer adjudicating the case at the United States Embassy in Bangkok.

The expiration date of the visa can cause confusion as well. The K1 Visa is usually valid for 6 months after it has been approved. After arriving in the USA and being lawfully admitted thereto, the holder of the K1 visa will be able to remain for 90 days. Subsequent to an approval for adjustment of status, the K1 visa holder will be granted conditional lawful permanent residence. Many people, after receiving the K1 visa, are confused by these differing dates. Two critical factors to remember: the K1 may be utilized for 6 months after it is issued, but it only provides 90 days of lawful status upon entry. If the parties do not get married in 90 days, then the K1 visa holder must leave the USA before the visa expires.

As of the day of this writing, USCIS is issuing a new G28 (Notice of Attorney Appearance) form. This document is used to signal the presence of an attorney in a case pending before the DHS (Department of Homeland Security).

United States Citizens meet, date, and form relationships with those from nations outside the USA. Therefore, a significant number of American Immigration applications are presented to the Department of Homeland Security (DHS). In many cases, the petitioner and beneficiary opt to deal with their immigration matter without counsel, in these situations a G-28 is not necessary. A G-28 is a method of informing the United States government that an accredited representative is entering an appearance in the case, it is generally presented by a United States attorney.

A major difference between the new version of the G28 and the old version is that the new form requires the attorney to signal the US agency involved in the matter. For example, if the matter involves the Customs and Border Protection Service (CBP), then the attorney will check the box which states that the attorney is representing the client in a matter before CBP. If the attorney is representing a client who has had been apprehended by the agency known as Immigration and Customs Enforcement (ICE), then he or she will be required to indicate that the G28 is submitted in connection with a pending matter before ICE.

When a G28 is submitted in conjunction with a US visa application it is general practice for USCIS to send a copy of all pertinent correspondence to both the petitioner and the petitioner’s attorney. Also, if the US Embassy sends correspondence to the non-citizen beneficiary, then the American attorney will generally be provided with a copy of the relevant correspondence.

As mentioned in previous articles, submission of a G28 form is one way of making certain that one is dealing with an attorney because only an attorney may be paid to appear before the government in immigration matters. Also, the new G-28 mandates that the attorney provide information regarding his or her license to practice law. A prospective client should not feel shy about asking for a lawyer’s credentials. A practitioner of US Immigration law who cannot provide credentials (Federal Court number, State Bar license number, State Supreme Court number, etc.) should be viewed with caution.

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In the Kingdom of Thailand, and around the world, there are so-called “visa agents,” “lawyers,” and “Immigration Advisors,” making ridiculous claims regarding how they can facilitate visa issuance for the Thai fiances, husbands, and wives of Lawful Permanent Residents and Citizens of the United States of America. One of the most outlandish claims is the notion that one of these operators can guarantee that a visa will be issued. All over the internet there are “fly by night operations” making such claims and they trick otherwise unwitting consumers into thinking that a US visa’s issuance can be guaranteed. One issue should be fully understood: No one can guarantee that a US visa will be granted. No qualified attorney will assert, with 100% certainty, that a visa will be issued. USCIS officers make determinations based upon the unique facts of each United States visa application. The Consular staff at US Embassies and Consulates overseas make more factual findings in order to decide if a US visa should be issued. A licensed US lawyer should act as an advocate for visa application approval. Further, a US Immigration lawyer will advise and assist clients in deciding upon the category of visa that is right for their situation. A competent Immigration attorney will do everything ethical to be certain that a visa is issued.

If one looks at the fine print of most of these so-called “guarantees” one will see that many of these guarantors only guarantee “USCIS approval” which is only one component of the US visa process and not the same thing as visa issuance.

Where an attorney enters their appearance, they are also required to represent their client for the duration of the case, or to the point agreed to by the client. Another unfortunate occurrence in Thailand and elsewhere abroad is to see “visa agents” and “lawyers” abandon their clients and their clients’ Thai fiancees and wives when the case becomes more complicated than originally anticipated.

There are a great number of unsanctioned US “Immigration consultants” operating internationally. Pursuant to USCIS regulations, no individual is entitled as a matter of law to take money in exchange for providing immigration assistance unless they are a licensed attorney in at least one US State or Territory. Thus, unless a client is dealing with a qualified US lawyer they should not be remitting fees for the services of a “visa agent,” or “lawyer” who cannot provide proof of proper licensure. If dealing with someone claiming to be an attorney or lawyer ask to see their credentials, if they cannot produce a state or Federal license to practice US law, then they are not allowed to represent clients before the United States Department of Homeland Security which includes the United States Citizenship and Immigration Service (USCIS).

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