Integrity Legal

Archive for August, 2009

31st August 2009

In an interesting a convoluted situation, it appears that United States officials deported an American Citizen…on more than one occasion. To quote another website:

“Newly released documents show that federal investigators twice ignored FBI records and other evidence and deported a North Carolina native to Latin America, The Charlotte Observer”

One of the most interesting, and somewhat tragic, aspects of the situation is the fact that the Citizen in question could not speak any Spanish and was also mentally ill. To quote the Charlotte Observer:

“At the time of Mark Lyttle’s deportation, immigration officials had criminal record checks that said he was a U.S. citizen. They had his Social Security number and the names of his parents. They had Lyttle’s own sworn statement that he had been born in Rowan County. None of this stopped them from leaving Lyttle, a mentally ill American who speaks no Spanish, alone and penniless in Mexico, where he has no ties.”

Cases such as this really bring to light important issues regarding the overwhelming power of the United States Federal government. The bureaucracy of the United States government is staggering and at times people fall through the cracks. In this situation, the American Citizen at issue not only fell through the cracks, but he should never have been put in a position where he could have fallen through a crack. Had the federal authorities simply done their due diligence, they would have learned that the subject was a Citizen of the United States of America and therefore, could not be subject to deportation. More importantly, he was a native born Citizen of the United States of America. This is important because American Citizens who are born American Citizens cannot lose their Citizenship, except through the process of renunciation. Further, an American Citizen cannot be deported. Therefore the authorities representing the US government made a grave error by wrongfully deporting someone with US citizenship.

It is very disconcerting to see this kind of thing happening to Americans. However, it should be noted that the American deportee had a history of mental illness and actually had claimed Mexican Citizenship on prior occasions. Even still, other government agencies had informed the Immigration officials that the deportee was a Citizen. Further when the deportee went to the US Embassy in Guatemala, “It took someone in Guatemala one day to prove he was a citizen.”This begs the question, if this was easily ascertainable overseas, why couldn’t US Immigration officials figure it out while in the USA.

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30th August 2009

The United States Department of Homeland Security recently announced rule changes that will effect those traveling to the United States of America. Under the new rules, clearer lines have been drawn with regard to searches of media devices belonging to those entering the USA. To quote an official press release from the US Department of Homeland Security:

“The new directives address the circumstances under which U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) can conduct border searches of electronic media—consistent with the Department’s Constitutional authority to search other sensitive non-electronic materials, such as briefcases, backpacks and notebooks, at U.S. borders.”

These new rules will have an important impact upon those Americans residing in Thailand who return to the United States of America on a regular basis. These rule changes are even more important for the fiance or spouse of a US citizen traveling to the United States on a K1 or K3 visa. In many cases, the Thai fiancee or spouse has a less than perfect grasp of the English language and therefore cannot adequately communicate with the Customs and Border Patrol (CBP) Officers. Therefore, it may be wise for the American citizen loved one to research the situation in order to explain to the Thai entrant the possible issues that may arise at the port of entry into the United States.

One interesting aspect of this rule change deals with the right of the person being searched to be present while the search takes place:

Searches of electronic devices should be conducted in the presence of the individual whose information is being examined unless there are national security, law enforcement, or other operational considerations that make it inappropriate to permit the individual to remain present. Permitting an individual to be present in the room during a search does not necessarily mean that the individual will be permitted to witness the search itself. If permitting an individual to witness the search itself could reveal law enforcement techniques or potentially compromise other operational considerations, the individual will not be permitted to observe the search itself.

It is important to note that the United States government has a great deal of unfettered search authority because they consider someone who has not actually been admitted into the US to be outside of the jurisdictions of the US constitution. Therefore, since the constitution does not apply, then normal rules restricting unlawful search and seizure do not apply. This can have a major impact upon an alien seeking entry to the USA, because they will not be accorded the same legal protections as they would after having been admitted.

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29th August 2009

The popular Website Thaivisa.com and the Nation Newspaper are reporting on the news that There is a planned expansion of Thailand’s current international airport. To quote the article:

“Airports of Thailand plans to build a domestic passenger terminal at Suvarnabhumi Airport while inviting the private sector to invest in six projects at the old Don Mueang Airport. Construction of the new terminal will start in 2012 for completion in 2015, to accommodate an additional 20 million passengers a year.”

A question upon the lips of many who read this blog is likely: “What about Getting a Reentry Permit at the airport?” Although these two subjects seem only tenuously related, they may in fact be more related than it appears at first glance.

Up until January 1, 2009 it was possible for long term residents of Thailand to obtain a Reentry Permit at the airport. This is an important stamp to obtain for those present in the Kingdom on a Thai visa extension. When one enters the country on a Thai visa, the visa has a set validity. However, it is possible to have one’s visa extended past the visa’s initial validity. Once obtained this instrument is known as a visa extension. However, the extension does not explicitly permit the bearer to leave the country and return while simultaneously remaining in status. Therefore, it may be necessary to acquire a Reentry permit so that one may leave the Kingdom and return while maintaining the same visa status.

There used to be a Royal Thai Immigration Office at Suvarnabhumi Airport that issued Reentry permits to travelers immediately before they left the country. As could be reasonably assumed, this office was very convenient for those leaving Thailand and wishing to return in status. However, for some unknown reason, this office was closed and currently it is not possible to get a Royal Thai Immigration extension issued at the airport. Those wishing to get a reentry permit must do so at another Thai Immigration office.

Hopefully, with the addition of a new terminal, the increased space at the airport may make it possible to reopen an Immigration office in order to facilitate the issuance of reentry permits. This being said, there appears to be no plan in place for opening any new Immigration offices at the airport.

It should be reiterated that anyone staying in Thailand on a visa extension should obtain a reentry permit before they depart from the Kingdom in order to forestall falling out of lawful visa status upon departure. Those present in the Kingdom on a multiple entry visa can depart and return to the Kingdom until the end of their visa’s validity.

For related information please see Thailand business visa

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28th August 2009

As many people around the globe have no doubt heard, the venerable Senator Kennedy recently passed away. We on this blog would like to offer our heartfelt condolences to his family as they mourn his death. The loss of Senator Kennedy is something of a setback for the immigrant rights movement as he was a staunch supporter of many initiatives aimed at helping those who had immigrated to the United States of America. To quote an email sent out by the American Immigration Law Foundation:

Senator Kennedy was the driving force behind every significant piece of immigration legislation over the past 40-plus years. Most recently, Senator Kennedy co-authored a comprehensive immigration reform bill which failed to pass in 2007. Upon its defeat Senator Kennedy said, “Immigration reform is an opportunity to be true to our ideals as a nation. Our Declaration of Independence announces that all of us are created equal. Today, we failed to live up to that declaration for millions of men and women who live, work, and worship beside us. But our ideals are too strong to be held back for long.”

With an impending debate upon the future course of American Immigration policy one wonders if the loss of Mr. Kennedy will have an impact upon the ultimate outcome of Comprehensive Immigration Reform.

Senator Kennedy was an ardent defender of same sex couples. Senator Kennedy took many stands in support of the Lesbian, Gay, Bi-sexual, and Trans gender (LGBT) community.To quote another website:

“In the 1990′s Kennedy became the clear Senate leader in the fight to end discrimination against members of the LGBT community, and to fund programs for HIV/AIDS prevention and treatment. He was also one of the very few senators to vote against the Defense of Marriage Act (DOMA).”

As we have mentioned previously on this blog, one of the interesting issues involved in the current debate about US Immigration Reform is that of same sex couples who are currently barred from reuniting with loved ones due to the fact that the Defense of Marriage Act (DOMA) precludes Federal acknowledgment of their relationship. This means that a same sex couple who validly marries  and tries to obtain Immigration benefits will be denied because DOMA does not recognize their marriage, even if the marriage occurred in a US state which recognizes same sex marriage (like Massachusetts). Further, under current legislation the same sex couple cannot obtain a K1 visa if the underlying intention is to marry in the US.

Mr. Kennedy’s death is sad, but his spirit lives on in the continued debates about Immigration reform.

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27th August 2009

In recent news the Thailand property market has been placed under increased scrutiny for fear that foreigners are using Thai companies as a way of owning land and thereby circumventing the de facto prohibition placed upon non-Thai citizens seeking to buy Thai real estate. In some cases, the Thai government authorities are forcing companies which are not in compliance to sell their Thai property.

In a recent edition of the Bangkok Post, the aforementioned phenomenon was reported on at length:

“If the investigation [by the land department] reveals that the firm holding the land have an illegal shareholding structure, the Lands Department will ask it to transfer the plots within 180 to 365 days.Recently, the Lands Department found a company in Phuket whose foreign ownership exceeded the legal limit. The firm had formerly registered with a legal ownership – with foreigners holding a 49% stake and Thais the balance. However, it later increased its capital, with foreign nationals taking up all new shares, making it ineligible to own land. After the department learned about this case, it took action to have the firm transfer the land it owned.”

The situation described above is the classic case of a scenario in which those operating the Thai company opted for the expedient route without making certain that the legalities were respected. There are ways in which Thai companies can own land, but they must be carefully structured in order to comport to the laws of the Kingdom of Thailand. That being said, one should not try to set up any type of corporate device purely for the purpose of getting around the laws of the Kingdom of Thailand.

It remains to be seen whether this increased scrutiny will continue, but those wishing to acquire property in Thailand ought to be aware that there are other perfectly legal methods of acquiring interest in Thai real estate. Long term Thailand leases can be a benefit to those wishing to acquire a leasehold. For those who insist upon obtaining a freehold title to a piece of Thai property, foreigners are entitled to take freehold title to a Thai condo. However, there have been regulations passed recently which place more restrictive legal definitions upon what is considered a “condo.”

There is also a very specialized property instrument known as a usufruct, which allows the usufructuary to hold a lifetime usage right in the structures located upon a designated piece of property. Some people opt to split the title to a house from the title to the land. This can be very difficult, but has been done when executed by professionals.

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25th August 2009

Apparently, the State of New York has made the decision to crack down on Immigration Consultants and so-called “visa agencies.” Only a licensed attorney or USCIS approved representative is entitled to prepare visa applications and petitions on behalf of clients pursuing United States Immigration benefits. In flagrant transgression of this rule, many companies in the United States of America provide unlicensed immigration advice. The State of New York has opted to take an aggressive position regarding this practice. To quote the a publication by the State of New York, promulgated through the American Immigration Lawyers Association:

“In thousands of cases across New York City and Long Island, these companies unlawfully filed immigration petitions with United States Citizenship and Immigration Services (USCIS) on behalf of immigrants and their families, jeopardizing efforts to obtain legal status.”

Many people do not recognize how detrimentally these unscrupulous agencies can affect prospective immigrants’ chances of obtaining an American visa. The aforementioned publication quoted the New York Attorney General as saying:

“The consequences of bad legal advice can be absolutely devastating,” said Attorney General Cuomo. “Fraudulent legal services can haunt individuals and their families for a lifetime. Companies and individuals that represent someone in a legal proceeding without having the authority to do so must be stopped, and my office will hold them accountable.”

It is good to see that local authorities in the United States are taking a firm stand against these practices. In a way, cracking down on these types of enterprises is of assistance to all immigrants and prospective immigrants because United States Immigration is a field that has been somewhat plagued by “fly by night” operations masquerading as attorneys and law firms in an effort to swindle clients out of their hard earned money.

Many of these organizations advertise “guarantees” and “full refunds” for failure to achieve desired results. In many cases, these too good to be true propositions are simply gimmicks to get unsuspecting immigrants to part with their money. Unfortunately, in Thailand “visa agencies” and those pretending to be lawyers prey upon uninformed foreigners and Thais. This practice is particularly prevalent in Thailand because many applications for visas are filed on behalf of family members who are of Thai extraction. Since Thailand is a sovereign nation independent of American legal jurisdiction, it is difficult for American authorities to apprehend those falsely claiming to be American attorneys. Therefore, the consumer environment in Thailand with regard to legal services is: Buyer Beware. Always ask if the attorney can provide a copy of their license to practice law from at least one jurisdiction in the United States.

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24th August 2009

Last week, United States President Barack Obama stated that reform of the US Immigration system is an important issue and one that will not be placed on the “backburner.” In the United States Congress and Senate, the Immigration debate is coming to the forefront with two proposed bills being brought to the floor in the next session. One proposed bill would stiffen enforcement and security measures with regard to illegal immigrants while creating more opportunities for immigrants to enter the United States legally.

The publication Businessweek reports that another proposed bill would, “limit the granting of H-1Bs, visas that are especially popular among U.S. tech companies like Microsoft as well as Indian IT services outsourcers like Infosys and Wipro.”

This same article makes note of the major contributions that many immigrant groups have made to the economy of the United States of America. There is a pervasive belief that only immigrant groups in the distant past have made a substantial positive impact upon the United States economy. As Businessweek points out, the Technology sector of the American economy has been greatly enhanced by immigrants to the United States as companies such as Google, Coca Cola, Pepsi, Motorola, and Berkshire Hathaway were either founded by, or currently managed by members of the American immigrant community.

An interesting aspect of the current immigration debate is the fact that it will occur at a time of decreased immigration to the USA. To further quote Businessweek:

“Ironically, the latest immigration fight will take place at a time when the U.S. has become a less attractive destination for many immigrants. Because of the recession, there’s less demand for low-cost labor. But the U.S. is also turning out to be less attractive for highly educated workers, too.”

As the People’s Republic of China and Asia generally becomes a more important region of the global economy, it stands to reason that more immigrants will be drawn to that continent in order to seek business opportunities. Hopefully, this fact will be taken into account when legislation regarding comprehensive immigration reform is drafted because in order to remain on the cutting edge of innovation the United States must continue to be viewed as the “land of opportunity,” by talented and ambitious prospective immigrants. Ideally, the proposed legislation to reform the American Immigration system will contain provisions that will make it easier for highly educated and highly skilled foreign labor to enter the United States.

For related information please see:

K1 visa

K3 visa

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23rd August 2009

The United States Citizenship and Immigration Service (USCIS) is a very large bureaucracy that handles the processing of many petitions for US Immigration benefits. The Service can take a great deal of time to process visa applications and simple delay is not considered out of the ordinary. That being said, there are certain situations in which a delay by USCIS is unwarranted.

If it becomes necessary to compel a government agency to fulfill their statutorily mandated obligations, then a Writ of Mandamus can be filed to compel the agency or officer to perform their duty. A Mandamus action is a civil action and is promulgated by a court of competent jurisdiction. It specifically compels a government officer to carry out their duties in the manner prescribed by law. A piece of legislation known as the Mandamus Act, can be found at 28 U.S.C.: 1361. This provision specifically states that Mandamus is an, “Action to compel an officer of the United States to perform his duty.”

With regard to USCIS, a mandamus action will likely be brought before a Federal District Judge in a United States District Court. If granted, the court’s order will be binding upon the USCIS officer who allegedly failed to adequately fulfill his duties.

The writ of Mandamus exists for a very good reason as it was designed to create a check on the unfettered powers of government officers. That being said, those thinking of filing for a writ of mandamus should give the decision a great deal of thought because the ultimate result could turn out to be detrimental in certain cases. For example, should a case get caught up in the system making it necessary to file a Mandamus action, because the Mandamus order only compels the officer to take action, and does not compel the officer as to what decision should be made, it could turn out that the officer simply denies the application and the case comes to an end, albeit more quickly than it likely would have had the Mandamus order not been granted.

With this in mind, the Mandamus action should be utilized judiciously as not every case calls for it. In those cases where a Mandamus action would be appropriate, the seeker of such a writ should weigh all of his or her options in order to make a full determination as to whether the Mandamus action is appropriate in light of the unique facts in that particular case.

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22nd August 2009

As the Obama Administration continues to put together a cogent piece of Comprehensive Immigration Reform legislation, immigrant communities in the United States of America are becoming more politically active in an effort to make their views regarding the Immigration situation known.

One immigrant group of particular interest is that of first and second generation Asian-Americans. The blog Immigration Impact recently discussed the political clout that these Asian groups are beginning to harness:

“According to the Asian American Justice Center, there are currently more than 15 million Asian Americans residing in the United States—the majority of whom are foreign born and thus have firsthand knowledge of our woefully outdated immigration system. Countless Asians are caught in the family immigration backlogs and remain separated from close family members, and there are more than 1 million undocumented Asians in the U.S. today. Because the broken immigration system affects them in such a personal way, many in the Asian American community are banding together this week to attend town hall meetings with members of Congress, hold press conferences and petition lawmakers to fix our currently broken immigration system that restricts due process rights, breaks up families, and ultimately hurts the economy.”

The United States Embassy in Thailand processes a large number of US visa cases each year. Among the many US family based petitions are those for the K1 visa and Immigrant visas based upon an I-130 application and these are probably the most popular American visa categories.  The people entering on these types of visas eventually take up Permanent Residence either through adjustment of status or upon entry as an intending immigrant. Once stateside, many of these Thai immigrants in the United States eventually go on the naturalize as United States Citizens. These immigrants and their children have something of a unique opinion regarding immigration reform and as such it is most likely a net positive if they enter the public discourse on this important issue.

As Citizens or Lawful Permanent Residents of the United States, Asian American Immigrants probably account for a disproportionately large number of family based petitions in lower preference categories. A result of this situation is the fact that many of these families remain apart for long periods of time due to the quotas set on the various immigrant visa categories and the large caseload being processed by the United States Citizenship and Immigration Service (USCIS). Hopefully, Comprehensive Immigration Reform will untie the Gordian Knot of US Immigration for these separated families while at the same time assuring that America is safe and secure.

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21st August 2009

For those who opt to take up an expatriate lifestyle the issue of Thai visa status can be a crucial one. One’s Thai visa status is determined by the category of visa that is initially issued. Therefore, if a Thai consulate outside of the Kingdom of Thailand issues an applicant a Thailand Business visa, then that entrant’s visa category, and therefore status, is “B.”

In cases where a foreigner wishes to remain in Thailand in order to pursue legitimate educational objectives, then a Thai ED Visa is the category used to remain present in the Kingdom. For “miscellaneous” purposes and for reasons related to filial kinship, the O visa category is the proper Thai visa to acquire. Depending upon the reason for Thailand O Visa issuance, a Thai work permit may or may not be easily obtainable.

The ability to file for a Thai work permit depends heavily upon one’s status in the Kingdom. For instance, the holder of a Thai Education visa generally cannot obtain a Thai work permit. A situation such as this is one where change of status comes into play. A foreigner in possession of a Thai education visa will need to switch to another category in order to apply for a Thai work permit. An interesting corollary to this notion is the Thai F visa category which is a visa for official or quasi-official purposes (this is different from the US F visa, which is an education visa). Those who hold an “F” category Thai visa do not need to obtain a Thai work permit in order to work in the Kingdom because the right to work is inherent in the visa itself.

Visa status conversion can be a somewhat difficult process within the Kingdom. There is always the option of going abroad, obtaining a new visa, and reentering under a different immigration classification, but for those who do not wish to leave the country, this option may be unacceptable.

When changing categories in the Kingdom, the general rule is that the applicant for change of status must have at least 21 days of validity left on their current Thai immigration stamp. Changing status from one category to another can be more difficult depending upon the original category. Generally, the Royal Thai Immigration Police do not prefer to change an applicant’s status from visa exemption to a proper category. In these situations, they prefer that the applicant depart the country, obtain a proper visa, and return for a Thai visa extension at a later date. That being said, conversion from an exemption to a visa category can be achieved, but conversion is done at the discretion of the Royal Thai immigration officer.

It should be noted that change of status is different from obtaining a Thailand visa extension. For those who enter the Kingdom on a 60 day Thai tourist visa, it may be possible to obtain an extension of the visa for thirty days at the Immigration office. However, this does not mean that the applicant has changed visa category, only that they have increased the valid period of their Tourist visa. This is the same for those who enter the Kingdom upon a business visa and opt to extend the visa to have a year’s validity. The applicant remains in “B” visa status, but the validity period is extended.

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