Integrity Legal

Archive for June, 2013

30th June 2013

It has come to this blogger’s attention that Thai authorities may one day require that tourists traveling to the Kingdom of Thailand purchase health insurance prior to being granted entry, to quote directly from the website UPI.com:

Lawmakers in Thailand say they want all foreign tourists to be required to purchase travel and health insurance before arriving in their country. Thailand’s Public Health Ministry Wednesday proposed the measure…The health ministry has suggested the cost of health insurance coverage might be included in visa fees, Public Health Minister Pradit Sinthawanarong said at the meeting. Those visiting Thailand without visas would be required to buy insurance at immigration checkpoints or the fees could be added to the cost of airline tickets.

To learn more about this issue readers are encouraged to click HERE to view this story in detail.

Although this policy is still in the discussion stage, if Immigration officials in Thailand eventually do decide to require foreign tourists to obtain health insurance then surely this would increase the costs associated with being granted entry to the Kingdom. Currently, those wishing to enter the Kingdom of Thailand for tourism purposes are required to obtain a Thai tourist visa. A single entry Thai tourist visa grants the bearer lawful presence in Thailand for 60 days, with an optional 30 day extension. It should be noted that foreign nationals from many countries can currently enter Thailand on a Thai visa exemption which is granted at an immigration checkpoint at the foreign national’s port of entry. In most cases a Thai visa exemption stamp in a foreign national’s passport will grant the bearer 30 days of lawful prensence in the Kingdom of Thailand.

Those wishing to travel to Thailand for the purpose of conducting business are required to obtain a Thai business visa which is categorized as a non-immigrant “B” visa by immigration authorities in Thailand. Once present in Thailand if the foreign national holding a business visa wishes to work then a Thai work permit must be first obtained before undertaking any type of labor in Thailand. Those traveling to Thailand to reunite with family may obtain a Thai “O” visa. This type of visa may allow the bearer to apply for a work permit depending upon the bearer’s circumstances. Foreign nationals wishing to retire in Thailand may obtain a Thai retirement visa which will permit the retiree to remain in the Kingdom for one-year intervals. However, those holding a retirement visa cannot apply for a work permit. Also, retirement visa seekers must be over the age of 50 and meet certain financial requirements. Some foreign nationals opt to travel to Thailand in order to receive schooling, in such cases it may be possible to obtain a Thai education visa (officially classified as an “ED” visa). It should be noted that in virtually all cases an ED visa holder cannot obtain a work permit.

For related information please see: Thailand Visa.

 

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29th June 2013

After the landmark decision handed down by the United States Supreme Court in which the Court held that section 3 of the Defense of Marriage Act (DOMA) violates the 5th Amendment of the United States Constitution there has been increasing speculation regarding how this will impact those seeking United States Immigration benefits such as US visas and Lawful Permanent Residence (Green Card status). It recently came to this blogger’s attention that the Secretary of the Department of Homeland Security, Janet Napolitano, recently commented on this issue, to quote her comments directly from the DHS official website:

“I applaud today’s Supreme Court decision in United States v. Windsor holding that the Defense of Marriage Act (DOMA) is unconstitutional. This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits.  I am pleased the Court agreed with the Administration’s position that DOMA’s restrictions violate the Constitution. Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”

Clearly it appears that DHS is in the process of implementing new policies which would comport with the Court’s decision. This is likely to have a tremendous impact upon same-sex bi-national couples. Before the Court handed down their decision it was not possible for most gay, lesbian, bi-sexual, or transgender (LGBT) couples to obtain immigration benefits based upon their marital relationship. Now that the Supreme Court has ruled that same sex marriages will receive the same recognition as different-sex mariages in the eyes of federal law the door is now open for LGBT couples to apply for benefits such as a “Green Card” or an immigrant visa (IR-1, CR-1). It may also be possible for same sex bi-national couples who are not yet married to apply for a K-1 fiance visa based upon the couple’s intention to travel to the United States to marry in one of those States (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington) that recognize same-sex marriage. That being stated, it is likely that it may take some time to implement proper policies to reflect the new legal reality, but the time is right for same sex bi-national couples to begin researching their options with regard to United States immigration as it appears likely that one day soon a same sex spouse of an American Citizen will receive an immigrant visa based upon the couple’s marital status.

For related information please see: US Visa Thailand or K1 Visa Thailand.

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28th June 2013

Limited Companies in the Kingdom of Thailand

Thai Limited Companies are somewhat similar to limited liability companies in jurisdictions such as the United States, the United Kingdom, or the European Union. However, there are certain formalities which must be adhered to in order to be certain that a Thai company is properly registered. First, a name for the company must be reserved and approved by the Thai Ministry of Commerce and then three shareholders must be utilized in order to meet the requirements for Thai company registration. Meanwhile, depending upon the type of business or the presence of possible future foreign employees certain capital requirements must be met (those wishing to register a Thai Limited Company are encouraged to ascertain the exact amount of capital necessary for a certain type of business before taking steps toward registration). Foreign nationals wishing to register a company in Thailand should note that some types of business are restricted under the provisions of the Foreign Business Act. It should be noted that usage of Thai nominee shareholders to hold shares of a Thai limited company on a foreign national’s behalf solely for the purpose of avoiding conflict with the provisions of the Foreign Business Act is strictly prohibited. American Citizens wishing to register a Thai company or American Companies wishing to set-up corporate offices in Thailand may be eligible to receive certification under the provisions of the US-Thai Treaty of Amity and therefore be in compliance with the Foreign Business Act and other applicable Thai law as companies with Treaty of Amity certification are accorded “National Treatment”.

An issue that may be of interest to those weighing the option of registering a company in Thailand: the corporate tax rate  for small companies making over one million baht per year has been reduced from 23% to 20% as of 2013, according to the official wesite of the Revenue Department in Thailand.

Sole Proprietorships in the Kingdom of Thailand

A sole proprietorship is defined as a business enterprise in which one natural person is the owner. It should be noted that sole proprietorships, unlike Thai limited companies or Thai limited partnerships, provide no limited liability to the owner and therefore the owner’s liability with respect to those conducting business with the sole proprietorship is unlimited.  There are some possible tax benefits arising from operating a sole proprietorship since the sole proprietor may be taxed progressively in much the same way as a natural person. In certain cases, a sole proprietor could opt to be taxed based upon gross receipts, minus a standardized deduction. However, those interested in this type of structure are well advised to contact professionals in order to ascertain further information about whether this type of structure can be utilized for one’s proposed business and the possible tax liabilities of such a proposition.

It should be noted that a sole proprietorship may not be feasible for most foreign nationals wishing to conduct business in Thailand pursuant to the provisions of the Foreign Business Act. It may be possible to obtain a foreign business license for a sole proprietorship in Thailand and thereby maintain compliance with the Foreign Business Act, but such licenses are examined on a case by case basis based upon the type of activity the sole proprietor wishes to conduct. For American Citizens it may be possible to obtain certification for a Thai sole proprietorship pursuant to the provisions of the US-Thai Treaty of Amity.

For related information please see: Thailand Company.



 

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27th June 2013

In an effort to provide relevant information for those Americans living abroad as well as those foreign nationals who may have business to conduct at a US Embassy or US Consulate it has been the practice of the administration of this blog to post the holiday closing times for US Embassies and Consulates in and around Southeast Asia. The following is quoted directly from the official website of the United States Embassy in Bangkok, Thailand:

Official Holidays 2013
Month Date Day Occasion
January 1 Tuesday New Year’s Day
January 21 Monday Martin Luther King, Jr.’s Birthday
February 18 Monday Presidents’ Day
April 8 Monday Substitute day of King Rama I Memorial and Chakri Day
April 12 Friday Songkran Festival
April 15 Monday Songkran Festival
April 16 Tuesday Substitute day of Songkran Festival
May 6 Monday Substitute day of Coronation Day
May 24 Friday Visakha Bucha Day
May 27 Monday Memorial Day
July 4 Thursday Independence Day
August 12 Monday Her Majesty The Queen’s Birthday
September 2 Monday Labor Day
October 14 Monday Columbus Day
October 23 Wednesday Chulalongkorn Day
November 11 Monday Veterans Day
November 28 Thursday Thanksgiving Day
December 5 Thursday His Majesty the King’s Birthday
December 10 Tuesday Constitution Day
December 25 Wednesday Christmas Day
December 31 Tuesday New Year’s Eve

Those seeking information about the United States Embassy in Bangkok, Thailand are encouraged to visit their homepage by clicking HERE.

The US Embassy in Bangkok is tasked with adjudicating visa applications for non-immigrant visas such as the B-1 visa, the B-2 visa, and the F-1 visa; the immigrant visa section adjudicates applications for visas such as the CR-1 visa, the IR-1 visa, the K-1 visa, and the K-3 visa. American Citizen Services is responsible for assisting Americans in renewing passports, issuing new visa pages for US passports, issuing Consular Reports of Birth Abroad, providing notary services, as well as a wide variety of other functions. Generally, it is advisable to make an appointment prior to traveling to the Embassy as this can facilitate quicker processing of relevant requests.

For related information please see: US Visa Thailand.

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26th June 2013

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.

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25th June 2013

It has come to this blogger’s attention that the United States Supreme Court is poised to hand down decisions in two cases in which the question of Federal recognition of same sex marriage is at issue. The first case involves one Edith Windsor, a woman from New York who was compelled to pay 363,000 United States Dollars after her same sex spouse, one Thea Spyer, died. Notwithstanding the fact that Spyer and Windsor were legally married, the fact that said marriage was apparently recognized under the laws of the State of New York, and the fact that a different-sex couple in the same situation would likely have been accorded a tax deduction regarding such estate taxes the United States government fails to recognize the couple’s marriage pursuant to the provisions of the so-called Defense of Marriage Act (DOMA) and therefore Mrs. Windsor was not granted similar tax benefits as compared to a different-sex widow. Meanwhile, the United States Supreme Court is also expected to hand down a ruling regarding the Constitutionality of a ballot initiative called Proposition 8 in the State of California which made same sex marriage illegal. This ballot measure followed closely upon the heels of a Court decision in that State which called for the legalization of gay marriage.

Section 3 of the Defense of Marriage Act 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 provision is that the United States Federal government refuses to recognize same sex marriages even where the marriage was legalized, solemnized, and/or celebrated in a State which explicitly recognizes such unions. Many scholars and experts on the Supreme Court theorize that the Court may issue a narrow opinion in the two cases cited above, but that the Court may also strike down section 3 of DOMA thereby requiring, or so it could be inferred, that the United States Federal goverment recognize such marriages and accord them the same benefits as different sex couples. This would be something of a narrow decision because many feel that section two of the Defense of Marriage Act (DOMA) may not be struck down in these decisions. Section 2 of DOMA reads as follows:

“No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”

Should the Supreme Court hand down a relatively narrow opinion in these cases and should they strike down only Section 3 of DOMA (which should not necessarily be viewed as a foregone conclusion), then it seems logical to assume that the practical outcome would be that same sex couples could be only accorded benefits arising from their marriage in the State in which the marriage was legalized, and possibly those other States which also recognize such unions; and at the Federal level. States which do not recognize same sex marriage may not be compelled to do so if section two is not struck down.

In the context of United States Immigration: as American immigration benefits, such as US visas, are Federal benefits it seems logical to surmise that if section 3 of the Defense of Marriage Act is repealed, then same sex bi-national couples may become eligible for immigration benefits similar to those of their different-sex counterparts. Therefore, an American citizen who has a same-sex fiance might be able to obtain a K-1 visa if the couple has the intention of getting married in one of those States which allow same-sex marriage. Furthermore, the same-sex spouse of an American Citizen or lawful permanent resident may become eligible to apply for lawful permanent residence as a result of the decision to overturn section 3 of DOMA. This remains speculation at this time as the Supreme Court has yet to hand down their decision and the various agencies tasked with adjudicating immigration matters will likely require an interval of time in order to update relevant regulations so as to comply with a possible Supreme Court decision; but there appears to be at least some hope on the horizon that same sex marriage and the immigration benefits which could be granted as a result of Federal recognition of such unions may become a legal reality.

For related information please see: DOMA or Full Faith and Credit Clause.

 

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