Integrity Legal

Archive for March, 2010

31st March 2010

The issue of advance parole can be extremely important for those enter the United States on a K1 visa. A K1 visa is a US fiance visa that allows the fiance of a US Citizen to enter the United States for a period of 90 days in order to marry and apply for adjustment of status. Adjustment of Status is the process of acquiring Lawful Permanent Residence (Also Known as a “Green Card”). For those who are awaiting the approval of an adjustment application a sense of being in “limbo” can set in as the applicant does not yet have permanent residence and they cannot leave the United States without falling out of status and thereby, often inadvertently, causing the entire visa process to begin anew.

There is a way that a foreign national can keep from falling out of status and still leave the United States. If the foreign national petitions for, and obtains, advance parole, then they may leave the United States and preserve both their Fiance Visa and their adjustment application.

In the past, applications for advance parole were adjudicated by local USCIS offices. However, in a recent USCIS announcement distributed by AILA, this procedure is changing:

“WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) today announced revised filing instructions and addresses for applicants filing an Application for Travel Document (Form I-131). The change of filing location is part of an overall effort to transition the intake of some USCIS forms from USCIS local offices and Service Centers to USCIS Lockbox facilities. By Centralizing form and fee intake to a Lockbox environment, the agency can provide customers with more efficient and effective initial processing of applications and fees.”

“Beginning March 19, 2010 applicants will file their applications at the USCIS Vermont Service Center or at one of the USCIS Lockbox facilities. Detailed guidance can be found in updated Form I-131 instructions page at www.uscis.gov.”

Many people may already be asking themselves: What if I inadvertently filed my advance parole application at the wrong location because I was unaware of the change? Luckily, USCIS is dealing with this internally, at least for now:

“The USCIS Service Centers will forward incorrectly filed Form I-131 applications to the USCIS Lockbox facilities for 30 days, until Monday, April 19, 2010. After April 19, 2010, incorrectly filed applications will be returned to the applicant, with a note to send the application to the correct location.”

Since USCIS will discontinue forwarding incorrectly filed applications, those seeking advance parole should carefully study this issue before submitting an application as failure to do so could cause delays in being granted permission to leave the USA and preserve one’s status.

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

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30th March 2010

It is common knowledge that many people seek United States travel documents from the US Embassy Thailand. However, are those who have complex questions regarding United States Tourist visas and in many cases, these questions can only be answered by either an attorney or a Foreign Service Officer. Thanks to the internet, there are more and more opportunities for those with sought out knowledge to communicate with those who need specific questions answered. The website Thaivisa.com is reporting that the US Embassy in Bangkok has initiated a live chat program to allow the public to interact directly with Embassy personnel online:

“U.S. Embassy Bangkok Non-Immigrant Visa Webchat

Interested in visiting the U.S. as a tourist? Looking to study in the U.S.? If you have questions about non-immigrant visas to the U.S. here is your chance to ask! The U.S. Embassy Bangkok Consular Section will be online to answer questions about non-immigrant visa services for Thai citizens and residents of Thailand. Join us for this special webchat!

Date: Tuesday, March 30, 2010
Time: 6:00-7:00pm (Bangkok time)

To participate:

1. Go to https://statedept.connectsolutions.com/bangkok
2. Enter as a Guest (Type your name)
3. Submit your questions (We accept questions and comments in advance of, and at any time during the program)

We look forward to chatting with you then!

Please Note: At this time questions can be submitted in English only.”

Although this chat session has already occurred one should note that this is a terrific resource for those interested in a tourist visa as it allows for an applicant to have their inquiries answered in real time by one who is knowledgeable about US visa matters. It is interesting to note that the Thaivisa.com posting only makes reference to the the US Tourist Visa and not other visa categories. This is probably due to the fact that employment based visas such as the E2 visa or the L1 visa are granted after an assessment of the unique set of facts and issues in a given case so it would be difficult to discuss such visas through the internet. That being said, tourist visa adjudications are based upon the facts in the case, but judging an applicant’s likelihood of obtaining a US visa is often easier, compared to employment based cases, due to section 214(b) of the US Immigration and Nationality Act. Family based visa applications for visas such as the K1 visa, the K3 Visa, the IR1 visa and the CR1 Visa are also adjudicated based upon the facts of the case and in many cases the likelihood of ultimate approval is not easy to determine unless one delves deeply into the details of the case. This could explain why these types of applications do not appear to be the intended topic of discussion in the aforementioned live chat session.

Hopefully, this will become a regular addition to the already quality service provided by the US Embassy in Bangkok.

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29th March 2010

In recent weeks we have discussed the possibility that Comprehensive Immigration Reform may be in the offing. However, legislation of this magnitude is unlikely to be passed quickly. With that in mind, many different organizations have chimed in with their opinion about Comprehensive Immigration Reform.

Recently, Secretary Napolitano of the Department of Homeland Security conducted a USCIS stakeholders meeting and discussed Comprehensive Immigration Reform. The following is contained in a readout from a press release promulgated by USCIS and distributed by AILA:

“Secretary Napolitano stressed that the broken immigration system is a problem that has been ignored too long, and said today’s meeting was another important step forward in this administration’s efforts to work with our colleagues in Congress and representatives from law enforcement, business, labor, the faith community, advocacy groups and others to fix our current laws. She welcomed the input of the participants and emphasized the importance of continued collaboration between the Department and immigration stakeholders.”

The press release went on to note that support for Comprehensive Immigration reform comes from both parties as most lawmakers feel that change is needed. The Secretary noted her admiration for the spirit of cooperation exhibited by legislators:

“In today’s meeting, Secretary Napolitano commended the bipartisan proposal set forth by Senators Chuck Schumer and Lindsey Graham, which reflects the administration’s commitment to effective enforcement; addresses the need for improved legal flows for families and workers; and offers a firm but fair path to citizenship for those who are already in the United States.”

President Obama has made statements in support of Immigration reform and the Secretary voiced her willingness to work with the President and lawmakers as solutions to the immigration problems are sought:

“Secretary Napolitano looks forward to continued work with President Obama, Senators Schumer and Graham and other Congressional partners, as well as stakeholders across the country as she continues to do everything she can to build a successful new immigration system.”

This author is intrigued to see that the there seems to be increasing support for some form of immigration reform. Although the outcome of any legislative initiative remains to be seen, there are some interest groups, particularly those supporting LGBT immigration rights, who hope to see dramatic changes to the United States Immigration system.

Hammering out a bill to address the major flaws in the current system will not be easy and there are some who believe that no immigration reform will be passed until after the mid-term congressional elections.

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28th March 2010

For many Thai-American couples a prenuptial agreement is an effective method of ensuring that bot parties understand the rights, obligations, and responsibilities that marriage entails. The US Embassy in Bangkok, Thailand issues a large number of visas to the fiancees and spouses of American Citizens. As this is the case, one of the ancillary issues regarding US Immigration involves prenuptial agreements as many couples opt to have a Thai Prenuptial Agreement signed prior to a marriage which is used as a basis for a K3 Visa or a CR1 Visa or they opt to have a prenuptial agreement drafted prior to a Thai fiancee’s departure to the USA on a US fiance visa (also known as a K1 visa). That being said, having a prenuptial agreement properly drafted is extremely important as failure to properly draft such an important document could lead to unforeseen problems down the road.

In previous posting on this blog, this author has discussed the importance of having a licensed US attorney act as a representative in US Immigration matters as “visa companies,” “visa agents” and fly by night operations claiming to be either lawyers, attorneys, or both cannot represent clients before the United States Citizenship and Immigration Service (USCIS). With regard to a Thai prenup, one should retain a licensed American attorney to draft a prenuptial agreement if for not other reason than the fact that they are trained in the working of United States law as well as the common law system in general. Unfortunately, those falsely claiming legal credentials are often drafting documents that are insufficient to ensure the security of one’s assets.

The obvious question that many people in Thailand have is: how can I be sure that the person drafting my prenuptial agreement is a lawyer? As with United States Immigration matters, the best way to verify an individual’s credentials is to ask for either a State Supreme Court License, a State Bar Association Membership Card, or a Federal license to practice law in a US Federal jurisdiction. After receiving the individual’s credentials, it may be necessary to check with the Supreme Court or Bar Association to be certain that the individual is an attorney in that jurisdiction.

Prenuptial Agreements are very important documents and they should be carefully drafted by someone with legal acumen. Entrusting something so important to those without credentials is a risky endeavor that will likely not be recognized until long after correspondence with the drafter has terminated.

For further information please see: Prenuptial Agreement Thailand.

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27th March 2010

In a few recent blog posts, this author has discussed the proposed fee increases for services offered at US Diplomatic and Consular Posts abroad. Apparently, the Department of State will be increasing the fees associated with Passport procurement. Also, those who wish to obtain new pages in their passport will no longer be able to have pages added free of charge. Finally, although on a slightly different topic, the fees for non-immigrant family based visas is to be raised as well. For those who are unfamiliar with the details of US Immigration the US Fiance Visa (also called the K1 visa) and the Non-Immigrant US Marriage visa (Also called a K3 Visa) are issued at American Embassies overseas.

The Department of State issued some statements in a supplement regarding the proposed rule that would increase the fees for Consular Services:

“The Department of State (“Department”) published two proposed rules in the Federal Register on December 14, 2009 (74 FR 66076, Public Notice 6851, RIN 1400-AC57), and on February 9, 2010 (75 FR 6321, Public Notice 6887, RIN 1400-AC58), proposing to amend sections of part 22 of Title 22 of the Code of Federal Regulations, the Schedule of Fees for Consular Services. The Department’s proposed rules solicited comments, and a number of comments requested additional detail on the Consular Services Cost of Service Study (CoSS) as well as time to comment on that detail. In response, the Department is providing the additional written detail below.”

The Department of State should be commended for taking the time to explain to the public the policy reasons for a fee increase. In many ways, a fee increase is periodically necessary as each US Embassy and/or US Consulate must serve the needs of the Americans using the post while at the same time stay within a budget. Balancing these two objectives can be difficult at times. The statement went further in describing the reasons behind the increase in fees, but used an analogy to make the point:

“Example: Imagine a government agency that has a single facility it uses to prepare and issue a single product–a driver’s license. In this simple scenario, every cost associated with that facility (the salaries of employees, the electricity to power the computer terminals, the cost of a blank driver’s license, etc.) can be attributed directly to the cost of producing that single item. If that agency wants to ensure that it is charging a “self- sustaining” price for driver’s licenses, it only has to divide its total costs for a given time period by an estimate of the number of driver’s licenses to be produced during that same time period.”

As this analogy points out, if an organization is just producing one product, then determining the cost of the product is relatively easy:

“However, if that agency issues multiple products (driver’s licenses, non-driver ID cards, etc.), has employees that work on other activities besides licenses (for example, accepting payment for traffic tickets), and operates out of multiple facilities it shares with other agencies, it becomes much more complex for the agency to determine exactly how much it costs to produce any single product. In those instances, the agency would need to know what percent of time its employees spend on each service and how much of its overhead (rent, utilities, facilities maintenance, etc.) are consumed in delivering each service to determine the cost of producing each of its various products–the driver’s license, the non-driver ID card, etc. Using an ABC model would allow the agency to develop those costs.”

Apparently, the Department of State, through use of modeling, has discovered the true cost of their services and is attempting  to adjust their fees accordingly. It remains to be seen how thee changes will impact expats and Americans using United States Consular Posts abroad. In Thailand, it is this author’s opinion, that this fee increase will have the biggest impact upon the American Citizen Services Unit of the US Embassy Bangkok and the US Consulate Chiang Mai as those respective units deal with issues like new passport issuance on a regular basis.

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26th March 2010

In a recent posting on the Immigration Equality.org web log, the organization described the current situation with regard to Comprehensive Immigration Reform:

With healthcare out of the way, now is the time to act!

In the last few weeks, comprehensive immigration reform has been moved forward through a series of events. Senators Schumer and Graham have met with President Obama to outline a comprehensive immigration proposal. They presented that proposal in the Washington Post, and Obama released a statement of support. The President has also met with the Congressional Hispanic Caucus about moving comprehensive immigration reform forward. Finally, the March For American last Sunday brought over 200,000 supporters to Washington, DC demanding comprehensive immigration reform.

For those with loved ones in the Immigration system, an overhaul of the current apparatus is believed to be increasingly necessary. This belief is even more acute in the LGBT community as current United States law precludes bi-national same-sex couples from being accorded that immigration benefits that are regularly provided to different-sex couples. At the heart of this issue is the Defense of Marriage Act (DOMA) which legally defines the term “marriage” as being between a man and a woman. Many in the LGBT community feel that this legislation should be repealed or thrown out by the US courts, but so long as it is the law it has a very detrimental impact upon those bi-national same sex couples who wish to receive American family based immigration benefits. The aforementioned blog post describes ways in which supporters of LGBT immigration rights can contact their representatives about Immigration reform:

“Call the U.S. Capitol Switchboard at 202-224-3121 and ask for your Representative and Senators. Tell them:

‘I urge you to support and to work to pass comprehensive immigration reform that includes the Uniting American Families Act.’

Call 3 times so you can talk to your Representative and two Senators!

If you want to speak to your representatives in person, the best time is during a Congressional Recess or on a weekend.

Congress is in recess during the following times:
• March 29 – April 9
• June 1 – June 4
• July 5 – July 9
• August 9 – September 10″

As with any legislative initiative, support must come from concerned citizens and the best way for citizens to voice their concerns is by contacting their elected representatives. Hopefully, through community action, legislative proposals such as Comprehensive Immigration Reform and the Uniting American Families Act (UAFA) the dream of a better and more egalitarian immigration system will become a reality.

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25th March 2010

This author recently came across a discussion of the forecast of the Thailand property market in 2010. For those who are not up to speed on the Thai property market, the year 2009 was not a particularly buoyant year for those in the Thailand real estate sector. This may be due to the fact that the overall economy around the world was not particularly vibrant. That being said, there are optimists who believe that 2010 will be a better year for Thai property.

There has been some talk in and around government circles about reforming Thailand property law. Some believe that a reform of Thailand real estate law would provide more economic efficiency and make foreign buyers (particularly commercial buyers) more amenable to purchasing land in Thailand or other forms of property in the form of Thai condos or houses.

To quote the website ThailandPropertyNews.com:

“The initiative of this government to reform property and land taxation with a view to creating fairness sounds positive, but it will only be possible to determine the effect on the property market once the details of the proposed legislation have been finalised. “So long as the new tax legislation is on a fair basis and the tax rate not so excessively high as to discourage investment, CBRE sees this reform as beneficial for the market,“ Ms. Aliwassa Pathnadabutr, Managing Director of CBRE Thailand said. An additional measure that CBRE urges the government to consider is the extension of the long lease term from the current 30 years up to a maximum of 90 years. This will help improve the market mechanism and make large-scale commercial projects viable which would not be feasible if such developments were freehold due to the high land cost or if they were on a 30-year lease due to the limits on lease terms. The extension of the lease term will also have a direct benefit for resort destinations such as Phuket and Samui where the property markets are primarily driven by foreign demand.”

It is interesting to note that some feel that an easing of the legal restrictions placed upon Thai leases would be a net benefit to the Thai real estate market. Currently, the Thai Civil and Commercial Code places restrictions upon the length of time that a Thai lease will remain enforceable in Thailand. There are exceptions, but currently, the enforceability period is 30 years or less. Providing foreign buyers with the option of obtaining a 90 or 100 year lease might cause an increase in demand for Thai property. It will be interesting to see how the government deals with these issues and what impact any legislative changes will have upon the Thai real estate market.

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24th March 2010

The issue of extradition is becoming more important as the world becomes increasingly “small” thanks in part to technology and the movement towards globalization. In a global environment, legal issues are becoming increasingly international as people are leaving their home countries and taking up residence in countries abroad. In order to understand extradition we need to understand how the international legal system operates when it comes to the issue of dealing with individuals who have warrants or arrests in multiple jurisdictions.  First we need to define what “extradition” means as it can have a significant impact upon individuals throughout the world.

The online informational resource wikipedia.com defines Extradition as follows:

“Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal. Between nation states, extradition is regulated by treaties.”

This leads to the question: If extradition is the process of surrendering foreign criminals to another nation, then how do countries determine when it is appropriate to extradite individuals? This can be incredibly important as activities which are considered criminal in one jurisdiction may be considered legal in another. To further quote wikipedia:

“The consensus in international law is that a state does not have any obligation to surrender an alleged criminal to a foreign state as one principle of sovereignty is that every state has legal authority over the people within its borders. Such absence of international obligation and the desire of the right to demand such criminals of other countries have caused a web of extradition treaties or agreements to evolve; most countries in the world have signed bilateral extradition treaties with most other countries. No country in the world has an extradition treaty with all other countries…”

Extradition Treaties represent the agreement between two countries regarding the procedure for dealing with those individuals who have a criminal warrant or conviction in one of the nations that is a party to the Treaty. The Kingdom of Thailand and the United States of America have an Extradition Treaty. To quote the American State Department’s website:

“There is a bilateral treaty on Extradition in force between the United States and Thailand, 11 Bevans 1008, 43 Stat. 1749 (1924) and Treaty relating to extradition signed at Washington December 14, 1983, entered into force May 17, 1991. There is a treaty on transfer of prisoners “Treaty on Cooperation in Execution of Penal Sentences” signed at Bangkok October 29, 1982, entered into force December 7, 1988.”

From a practical standpoint, the existence of an Extradition Treaty does not necessarily mean that those with arrest warrants, convictions, or fugitive warrants in the USA will be automatically picked up, arrested, and extradited by authorities in Thailand. Instead, this is unlikely as the Thai authorities do not have direct access to the databases that contain US criminal warrant information. However, recently the Thai immigration authorities have announced that they are taking measures to streamline their information gathering process when it comes to foreign nationals. Authorities in Thailand hope to be “plugged in” to US law enforcement databases soon.

Another issue with regard to US warrants involves US passports as Consular Officers at the American Citizen Services Section of the US Embassy in Bangkok may confiscate an American’s passport if they have outstanding US warrants. In such a scenario, the American would likely be accorded an opportunity to willingly return to the USA.

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23rd March 2010

This author has been increasingly asked about the impact of recent political demonstrations upon those living in Bangkok. From personal experience, this author must admit that the demonstrations have had little or no impact upon living conditions in Bangkok. That being said, it appears that the recent protests are having an effect upon the Thai tourist industry.

In a recent posting on Thaivisa.com the issue of the protests and the detrimental effect they are having on the Tourism industry was discussed:

“The Thai Hotels Association said Thursday that room cancellations in Bangkok have been made at about 1,000 rooms per day, although the Tourism Authority of Thailand (TAT) has assessed Red Shirt demonstration in the capital has not had a great impact on tourism so far. Thai Hotels Association director Sakrin Chorsawai said the demonstration has affected tourism operators, particularly in hotel businesses in Bangkok. A significant drop in the number of foreign tourists was seen and room reservations fell some 10-20 per cent. About 1,000 rooms were canceled daily on average as tourists feared possible violence during the mass demonstrations, in particular from March 12-23, Mr Sakrin said. However, tourism operators in other regions have not been affected, and are enjoying a normal rate of hotel bookings, he said. Local tourists, who are worried about the political situation, do not travel. If the demonstration is prolonged, its negative effects on tourism will be clearly seen, said Mr Sakrin. Meanwhile, TAT director Surapol Svetasreni said the tourism in January and February had recovered but since the Red Shirt protest began in Bangkok last week, the national agency is vigilant on the current situation to alleviate and to minimise possible effects on tourism. TAT’s promotional campaign this year still focuses on overseas roadshows and targets the number of foreign tourists at 15 million people in 2010.”

Although room cancellations may be attributable to the protests, this author believes that other factors may explain the recent downturn in Thai tourism overall. In a previous post, it was noted that the free Thai tourist visa scheme had come to an end. Subsequent to that posting, it was reported that the Thai visa fee waiver would go back into effect for Tourist visas beginning on April 1st of 2010. However, this left a window of about one month in which Thai tourist visas would not be granted free of charge. There is a possibility that some of those planning to tour Thailand are awaiting the re-institution of the free tourist visa scheme. This is mere speculation on the part of this author, but it may be the case.

For more information about Thai Immigration generally please see: Thailand visa.

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22nd March 2010

The authors of this blog keep a close eye upon pending legislation in both the Kingdom of Thailand and the United States of America. Vigilance must be maintained in order to be fully aware of all of the current Immigration policies, procedures, rules, regulations, and laws in both countries. This blog has repeatedly reported on issues involving same-sex couples seeking United States Immigration benefits as this poses one of the most politically pressing and legally confusing issues of United States Immigration at this time.

Currently, the United States Congress is debating legislation that would attempt to tackle some of the major problems in the area of US Immigration. Recently a bill was introduced that would reform current American Immigration law with regard to refugees. Some feel that an even more pressing piece of legislation is that which would provide comprehensive immigration reform in the USA.

Same Sex Immigration issues have been dealt with in separate proposed legislation called the Uniting American Families Act (UAFA), but there are those who hope that a Comprehensive Immigration Reform bill will eventually include immigration benefits for same sex couples. A very popular website and blog, Immigration Equality.org, has been posting updates regarding the situation in Washington D.C. where marchers will be falling upon the US Capital to demand Comprehensive Immigration Reform legislation. Most notable, is the fact that among the marchers LGBT rights activists are campaigning for equal rights in the US immigration process. To quote Immigration Equality’s blog directly:

“In the midst of the tens of thousands rallying for reform, a contingent of 300 to 500 people will on hand, with rainbow flags in hand, to bring attention to the struggles of lesbian, gay, bisexual and transgender (LGBT) immigrants and their families. And before they set their first foot on the grassy lawn off Constitution Avenue, their presence is already being felt and making change.”

The blog added a personal touch to its report of this demonstration:

“[Laurie] Larson will be marching with the Immigration Equality contingent in honor of her close friend Steve – an American citizen – whose partner of nearly a decade, Joe, was recently forced to leave the country after losing his job and, by extension, his work visa, too. Had Steve been in a heterosexual relationship, he could have married his partner and they would have qualified for residency. But because Steve and Joe are both male, that option doesn’t exist for them. Under current U.S. immigration law, Steve cannot sponsor Joe for residency simply because they are gay.”

The idea that an American Citizen, who could legally marry a foreign national of the same sex in some US jurisdictions, cannot obtain a US family based visa for their same sex loved one definitely smacks of inequality where the same American could petition for visa benefits for their loved one if the loved one was of a different sex. That being said, these issues have yet to be played out and there are some who believe that the issues of same sex family based immigration will likely be dealt with in the US Courts as the Defense of Marriage Act‘s (DOMA) constitutionality is currently being challenged by the Commonwealth of Massachusetts.

For information on US Immigration in general please see: US Visa Thailand.

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