TIMING:  The US K1 Fiancée Visa is generally issued faster than the US K3 Marriage Visa.  The K3 visa often takes longer to obtain because proof of marriage must be established, along with other supplementary supporting documentation.  

COST:  There are many factors that influence the cost of a K1 or K3 visa.  For example, the cost of a marriage in Thailand will likely be less expensive than that in America, so in this way, getting married in Thailand and obtaining a K3 visa from Thailand can save you money. 

CONVENIENCE:  For many, dealing with immigration and marriage in Thailand poses more difficulties than dealing directly with authorities in the US.  The K1 Fiancée visa allows the American/Thai couple to engage primarily with US immigration.  Conversely, the K3 visa is a two year multiple entry visa, allowing the Thai K3 visa holder the convenience of easy travel and a longer time period to adjust his or her immigration status.

LOCATION:  While the final intention of both the K1 and K3 visa is to settle down in the US as a married couple, the K1 allows more of an adjustment period than the K3 visa.  Even though the K1 visa is only a 90 day single entry visa, these 90 days can be used to assess whether married life in American is best for you and your Thai fiancée. 

Please See  K1 Visa and K3 Visa Comparison Thailand  for a more detailed analysis.

The case has received significant attention, especially since it was published in national media during Obama’s campaign in 2008—but to the disbelief of many observers, Obama has insisted on staying out of the procedures. Despite his public stance of non-involvement, many critics are saying that his aunt’s extended presence in the country is just an example of American-style nepotism. 

Obama has commented that his aunt’s asylum case should follow procedures according to American immigration law.  And this is precisely how the case is proceeding. 

What might not be so apparent to US citizens residing in the USA is that Zeituni Onyango’s case is an example of the effective functioning of the rule of law.  As a US citizen that has resided abroad for many years, I can testify to the fact that in many other ostensibly democratic countries, a family member of the President or even the family member of an influential person, would receive preferential treatment as a routine matter. 

In fact, Zeituni Onyango’s asylum case is an example of the robustness of the American legal system, rather than a neither failing nor nepotistic system.    This is due process at work.  Yes, there will be scammers and parasites that take advantage of the legal system.  However, the protection of due process and civil liberties within the legal system is, in my humble opinion, more important than individual abuses of the system.

The US Embassy is Thailand uses the OF-164 form when it issues a visa denial.  The denial can be a serious matter, requiring a reply that includes a memorandum of law from an immigration attorney or can be a simple administrative matter that can be corrected in a few simple steps.

 The two most common visa processing problems are typically referred to by their numerical codes within the United States Immigration and Nationality Act (INA).   These are 214(b) visa denials and 221g visa refusals.  A visa application might also be placed in administrative processing or referred to the Fraud Prevention Unit.

214(b) Visa Denial

This type of denial usually occurs with non-immigrant visas, most commonly tourist visas (B1 and B2 visa categories).  However, the denial can occur with other non-immigrant classes of visas as well.  The basic meaning is that the US Embassy fears that the visa applicant will not return to their home country and will, rather, seek to reside in the USA.

Section 214(b) of the INA states that:

Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status…

Section 214(b) requires the consular officer to assume that every applicant for a temporary visa to the U.S. intends to remain in the U.S. permanently, even though the visa they are applying for is for a limited period of time.  Therefore, the applicant must convince the officer that they intend to return to their home country before the visa expires.

The consular officer uses the documents submitted with the application and the personal interview to determine if the applicant intends to abide by the visa rules.  If the officer is not fully convinced of the applicant’s intention to return to their home country he will refuse the visa request.  This is referred to as a 214(b) visa denial.

The applicant must convince the officer that they possess a residence in their home country that they have no intention of abandoning.  They do this by showing that they have very strong “ties” that would compel them to leave the U.S. at the end of their temporary stay.

“Ties” are the various aspects of the applicant’s life that bind them to their home country.  Unfortunately there is no simple rule or single determining factor that guides the consular officer’s decision.  The officers must use their training, experience and judgment to analyze, in totality, the ties presented.  Strong and convincing ties include, but are not limited to, substantial possessions, home ownership, a stable employment history, and strong social and family relationships and obligations.  Each case is examined individually.

An applicant receiving a 214(b) denial of visa may not appeal the decision of the consular officer.  The applicant will likely never learn the specific reason for the denial beyond the information that they failed to convince the officer of their intention to return to their home country prior to the expiration of the visa.  They will not receive a refund of the application fee.  However they may submit another application with additional supporting documents.

The 214 (b) visa denial is usually encountered by persons acting pro se (without counsel) or by applicant represented by unqualified practitioners.  A qualified immigration practitioner should be able to anticipate this risk and advise their client. . 

221g Visa Refusal

Due to the complexity of the visa application procedure it is not uncommon for a visa application to be incomplete, improperly completed, or to require additional administrative action.  If this is the case, the applicant will receive a 221g visa refusal letter.  This may also be referred to as a 221g visa denial.

This letter will explain the deficiency in the application and the steps required by the applicant to remedy the problem.  There is no additional application fee and often the visa can be quickly approved when the required documents are provided or the application is resubmitted as instructed.

On the other hand the 221g denial may request additional information or documents that may point to a larger issue, such as a criminal record or marriage fraud.  If the consular officer suspects there are grounds for denying the visa based on legal considerations, she may first request additional information according to 221g.  If the information or documents requested cannot be produced to the consular official’s satisfaction, this may lead to a substantive denial or a waiver situation.

Administrative Processing

Some visa applications may require additional processing time.  The decision to place the visa application into this category may come before or after the applicant’s interview with the consular officer.  The reason for an extensive application review might include such things as a name hit in a data base, missing or incomplete information, or a decision by the officer that the application needs further investigation.

Although some applications are processed within sixty days, it is difficult to predict how long a visa application will remain in administrative processing status and there are few options for the applicant during this time period.  The applicant will generally not be allowed to make any inquiries about the status of their application during the first sixty day period.

Fraud Prevention Unit

If the consular officer suspects that the applicant has submitted fraudulent information within the application or during the interview, the officer may refer the application to the Fraud Prevention Unit.  They will investigate the suspected fraud and refer individuals, as appropriate, for prosecution under local or U.S. law.  Immigration fraud is taken quite seriously and is a federal offence.  A conviction for marriage or visa fraud can have long lasting repercussions in the criminal justice system and in the immigration law system.   It is not unusually for federal indictments to issue for immigration fraud and there have been extraditions from Thailand.

For more information see:

US Visa Denial Thailand

On Tuesday 21 October, however, Congress passed a bill removing the two year marriage requirement, which will allow widows and widowers to apply for a US green card for both themselves as well as for their children born abroad. 

The provision is part of a Homeland Security Appropriations bill that will now head to the White House for review. 

The two year marriage requirement has several implications.  One of the most overlooked is that married couples seeking a US K3 visa may be eligible for immediate adjustment of status to permanent residence based on a two year marriage.  Many persons mistakenly assume that the two year period begins running upon arrival in the US.  In actuality, the two year period runs from the date of the marriage. 

Hundreds of foreign spouses are believed to be facing deportation under this “widow penalty”, and thousands are believed to have been deported in the past. 

See US K3 Marriage Visas Thailand and US Adjustment of Status Thailand for more information

This new test puts more emphasis on the concept of American democracy, basic U.S. history and the rights and responsibilities of citizenship in an effort to increase national efforts at integration of immigrants. 

The new test has been in use for one year, but during the past year, applicants were able to choose which test they preferred to write.  As of 1 October, the new test is mandatory.   Currently, the overall pass rate for the new test is 91%.

Andy Promisiri, a 48 year old college financial aid advisor, was told that he would be deported as a result of his mother’s divorce certificate from 1975. 

Promisiri’s mother, Pai Ciesiolka,  left Thailand in 1971 with her two young sons to join her husband in America who was in the country on a student visa.  Four years later, the couple filed for divorce and Ciesiolka remarried with a Colorado man.  Thus Ciesiolka flew back to Thailand, reapplied for legal permanent residency, was approved, and returned to the US. 

The problem only began when Promisiri and his family attempted to become US citizens in 1998.  Officials responded that not only was their application for citizenship being denied, they were also to be deported because his mother’s divorce certificate was invalid.  Immigration authorities claimed Ciesiolka had actually been married to two men when her Green Card had been approved. 

After the Associated Press ran the story last year, the government held off on deporting the family—and after serious scrutiny—decided to approve them for citizenship. 

This story is yet another reminder of the importance of keeping all important and related documents for future, unforeseen immigration complications.

Form I-134 is the Affidavit of Support for an alien fiancée that must be submitted with the application for a K1 visa.  The I-134 is to be completed by the sponsor in order to assert that the fiancée/fiancé will not become a “public charge” upon entry to the US and that the sponsor has sufficient income or financial resources to ensure that his/her fiancée/fiancé will not become dependent on public services such as welfare. 

Supporting evidence required for the I-134

The Affidavit of Support requires evidence of financial resources through the submission of: a) statements from financial institutions in which one has deposits; b) statement from one’s employer detailing nature of employment and salary; and if self-employed, c) copy of tax return or commercial rating concern, d) details regarding any bonds owned. 

After filing form I-134 the sponsor will become financially responsible, under certain circumstances, if the fiancée/fiancé becomes a public charge.  The agency that provides this assistance may be able to file a claim for reimbursement against the sponsor in order to recover the full cost of any benefits that have provided to the visa beneficiaries. 

Under what circumstances should Form I-134 be used?

The Affidavit of Support I-134 is primarily for K1 visa applications.  For those that are applying for permanent residency, Form I-864 is required.  When filing for a K3 marriage visa application, neither the I-134 nor the I-864 is required because the latter will be filled out once the spouse adjusts his or her status in the US. 

For the I-864, the sponsoring US citizen must prove that its financial funds and assets are 125% over the poverty line.  But under Section 212(a)(4) of the INA,  the I-134 requires proof that the sponsor’s income is 100% of federal poverty guidelines.  There are also special financial requirements for active duty military personnel and for residents of Florida and Alaska.

For Thailand, the majority of migrant workers are from Myanmar, working in the areas of fisheries,   and fish processing; agriculture; construction; and as domestic helpers.  Significant numbers of migrants also come from Laos and Cambodia.  In the US, the majority of migrants are from Mexico. The government of both the United States and Thailand are currently reviewing their immigration policies for migrant workers. Thailand issues temporary work and residence permits to Burmese workers.  These permits are the equivalent of US visas, for example, the H2-A for agricultural workers.

 The US Embassy in Bangkok and the US Consulate in Chiang Mai recently hosted a labor economist from the University of California—Dr. Phillip Martin—to speak at a series of conferences in Thailand.  These conferences addressed questions facing both Thailand and the US, particularly the rights of migrant workers, and the possibility of extending permanent residency or citizenship for migrant workers.

In July of this year, Thailand announced new registration for migrant workers in the country.  The system involves four time specific steps:  before 31 July, migrants were expected to apply for a new registration document, even if they already possessed registration; next, before 14 August, migrants were expected to get a medical health examination; only after these steps may migrants apply for their work permit.  Finally, however, migrants are expected to go through a “national verification” process, meaning they must confirm their citizenship.

Thai Prime Minister Abhisit recently acknowledged that the Thai government must legalize the status of these migrants and bring them into the formal job market.

But many are questioning whether the national verification process will in fact protect the rights of migrants.  Some migrants and migrant advocacy groups believe that the verification process will open up migrants’ families to extortion by Myanmar authorities or put migrants themselves at risk of deportation.

1)      Make copies of all your original documents, including birth certificates, passports, marriage registration and insurance.

2)      Scan all your original documents and keep electronic versions.

3)      Keep hard copies and originals in separate locations, including those stored electronically.

4)      Keep a copy of your entire application package. 

5)      If sending documents by mail, keep the sending confirmation number. 

6)      Keep all associated receipts, including money transfer receipts. 

7)      Use photocopies of originals at all times unless the original versions are specifically requested.

Many couples who have gone through the K1 visa process need copies of their filing documents for  any possible occurrences in the future, including the adjustment of status process—the application for permanent residence—tax purposes, and other future family matters.  In the unfortunate case of divorce, or other legal matters, these documents can prove to hold important information.