Integrity Legal

Archive for April, 2020

22nd April 2020

An Executive Order has been issued by the Trump administration regarding suspension of immigration to the United States for the forthcoming 60 days. However, the order does not appear to apply to those seeking a K-1 visa to bring a foreign fiance to the USA. Concurrently, it also does not appear to apply to American visas for the spouses and children of U.S. Citizens. To quote directly from the relevant sections of the order as posted on the White House website:

NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a) of the Immigration and Nationality Act, 8 U.S.C. 1182(f) and 1185(a), and section 301 of title 3, United States Code, hereby find that the entry into the United States of persons described in section 1 of this proclamation would, except as provided for in section 2 of this proclamation, be detrimental to the interests of the United States, and that their entry should be subject to certain restrictions, limitations, and exceptions.  I therefore hereby proclaim the following:

Section 1.  Suspension and Limitation on Entry.  The entry into the United States of aliens as immigrants is hereby suspended and limited subject to section 2 of this proclamation.

Sec2.  Scope of Suspension and Limitation on Entry.  (a)  The suspension and limitation on entry pursuant to section 1 of this proclamation shall apply only to aliens who:

(i)    are outside the United States on the effective date of this proclamation;

(ii)   do not have an immigrant visa that is valid on the effective date of this proclamation; and

(iii)  do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

(b)  The suspension and limitation on entry pursuant to section 1 of this proclamation shall not apply to:

(i)     any lawful permanent resident of the United States;

(ii)    any alien seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees;  and any spouse and unmarried children under 21 years old of any such alien who are accompanying or following to join the alien;

(iii)   any alien applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program;

(iv)    any alien who is the spouse of a United States citizen;

(v)     any alien who is under 21 years old and is the child of a United States citizen, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;

(vi)    any alien whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee;

(vii)   any member of the United States Armed Forces and any spouse and children of a member of the United States Armed Forces;

(viii)  any alien seeking to enter the United States pursuant to a Special Immigrant Visa in the SI or SQ classification, subject to such conditions as the Secretary of State may impose, and any spouse and children of any such individual; or

(ix)    any alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

Sec3.  Implementation and Enforcement.  (a)  The consular officer shall determine, in his or her discretion, whether an immigrant has established his or her eligibility for an exception in section 2(b) of this proclamation.  The Secretary of State shall implement this proclamation as it applies to visas pursuant to such procedures as the Secretary of State, in consultation with the Secretary of Homeland Security, may establish in the Secretary of State’s discretion.  The Secretary of Homeland Security shall implement this proclamation as it applies to the entry of aliens pursuant to such procedures as the Secretary of Homeland Security, in consultation with the Secretary of State, may establish in the Secretary of Homeland Security’s discretion.

(b)  An alien who circumvents the application of this proclamation through fraud, willful misrepresentation of a material fact, or illegal entry shall be a priority for removal by the Department of Homeland Security.

(c)  Nothing in this proclamation shall be construed to limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, consistent with the laws of the United States.

Sec4.  Termination.  This proclamation shall expire 60 days from its effective date and may be continued as necessary.  Whenever appropriate, but no later than 50 days from the effective date of this proclamation, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend whether I should continue or modify this proclamation.

Sec5.  Effective Date.  This proclamation is effective at 11:59 p.m. eastern daylight time on April 23, 2020.

Sec6.  Additional Measures.  Within 30 days of the effective date of this proclamation, the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, shall review nonimmigrant programs and shall recommend to me other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.

Sec7.  Severability.  It is the policy of the United States to enforce this proclamation to the maximum extent possible to advance the interests of the United States.  Accordingly:

(a)  if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this proclamation and the application of its provisions to any other persons or circumstances shall not be affected thereby; and

(b)  if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid because of the lack of certain procedural requirements, the relevant executive branch officials shall implement those procedural requirements to conform with existing law and with any applicable court orders.

Sec8.  General Provisions.  (a)  Nothing in this proclamation shall be construed to impair or otherwise affect:

(i)   the authority granted by law to an executive department or agency, or the head thereof; or,

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This proclamation shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c)  This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

IN WITNESS WHEREOF, I have hereunto set my hand this
twenty-second day of April, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty-fourth.

DONALD J. TRUMP

 

Clearly, there are many who might see their cases negatively impacted by this order. To preface any further analysis, it should be noted that visa processing has been suspended at the US Embassy in Bangkok, Thailand as well as the US Embassy in Vientiane, Laos and the US Embassy in Phnom Phen, Cambodia due to the COVID-19 outbreak. So regardless of this order, it is not currently possible to obtain a visa from these posts as interviews have been suspended. Bearing the above in mind, the following analysis will demonstrate that this order will NOT have an impact on fiance visa and marriage visa cases for the fiances and/or spouses of American citizens:

The executive order states: “The entry into the United States of aliens as immigrants is hereby suspended and limited subject to section 2 of this proclamation.” The K-1 visa is designed for the fiance of an American citizen to to travel to the United States with the intention of marriage. It grants the bearer 90 days of lawful status in the USA in which to marry their American fiance and file for adjustment of status to lawful permanent residence (aka Green Card status). It is important to note: the K-1 visa is a non-immigrant visa, albeit a dual intent visa. For purposes of processing it is treated as an immigrant visa (for example K-1 cases process through the Immigrant Visa Unit of the American Embassy in Thailand), but pursuant to United States law it is in fact a non-immigrant visa. The above cited executive order only pertains to immigrant visas. Therefore, this order does not have any bearing upon the processing of a K-1 fiance visa case.

What about cases involving the spouse of an American citizen where the spouse would enter the USA and be granted an I-551 stamp thereby granting permanent residence to the foreign spouse upon entry? The above executive order speaks directly to such a situation: “The suspension and limitation on entry pursuant to section 1 of this proclamation shall not apply to:…(iv) any alien who is the spouse of a United States citizen“[Emphasis Added]. Clearly the suspension ordered in Trump’s executive order will exempt spouses of Americans. Therefore, those foreign spouses of American citizens seeking a K-3 visa, CR-1 visa, or IR-1 visa will not be adversely impacted by the provisions of this executive order.

Finally, the following should be noted: “This proclamation shall expire 60 days from its effective date…This proclamation is effective at 11:59 p.m. eastern daylight time on April 23, 2020.” Thus, unless this order is extended it will expire 60 days from now. We will keep readers updated on this blog as the situation progresses.

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21st April 2020

It recently came to this blogger’s attention that President Trump has announced he will be suspending immigration into the USA. To quote directly from a recent artcile in Bloomberg.com:

President Donald Trump said he’ll sign an executive order temporarily suspending immigration into the United States as the country tries to contain the spread of the coronavirus. Trump made the announcement by tweet late Monday night, and did not offer specifics, such as the time frame or the scope of who would be affected. The White House did not immediately respond to a request for comment.

Clearly, the ramifications of this announcement are significant. However, as noted above, the specifics of this suspension have yet to be fully explained. That stated, as this executive order is designed to be temporary there may not be long term ramifications. Concurrently, it seems probable that while immigration is suspended it is still possible to file immigration petitions so as to have one’s case in the queue when the visa interview facilities are brought back online at US Embassies and Consulates abroad and, provided the proposed executive order is lifted, immigration to the USA can continue.

Meanwhile, on a somewhat brighter note, it appears that Thai Immigration will be extending the automatic Thai visa extension program, also referred to as the Thai visa amnesty or Thai visa waiver program, for those who have been stranded in Thailand, to quote directly from a recent article from Reuters:

Thailand’s cabinet approved a second automatic visa extension for foreigners for three more months on Tuesday, in a bid to prevent long queues at immigration centres and stem the spread of the coronavirus. Foreigners whose visas had expired since March 26 will be permitted to stay until July 30 without having to apply for an extension, said Narumon Pinyosinwat, spokeswoman for the Thai government…

Although this is certainly good news it remains to be seen if this announcement will pertain to those who are present in Thailand in a non-immigrant visa, such as a Thai Business Visa, Thai Retirement Visa, or Thai O visa. Further, those who saw their visa status expire prior to March 26, 2020 may have issues maintaining visa status if they used  an Embassy letter to maintain lawful status prior to the enactment of the amnesty. It should also be noted, that the previous announcement regarding visa extension took some time to see implementation after cabinet approval as the regulatory scheme had to be drawn up. Therefore, it remains to be seen exactly what the practical implications of both of these announcements will be.

We will keep readers posted via this blog.

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18th April 2020

Those following this blog are likely well aware that that the Coronavirus (or COVID-19) is having a dramatic impact upon logistical issues around the world. In Thailand, the Immigration Bureau has promulgated regulations to allow certain tourists stranded in Thailand to automatically extend Thai visa status. Meanwhile, while the American Embassy in Bangkok has been assiduous in providing up to date information regarding the ongoing ramifications of the crisis with respect to travel arrangements to the USA, a recent segment of a Health Alert from the Embassy drew this blogger’s attention. To quote directly from the Embassy’s website:

When booking a flight out of Thailand we urge you to do so at the earliest opportunity, ideally within the next several days.  If you have booked a flight after this time period, you should consider rebooking for an earlier date or make plans to stay in Thailand indefinitely. [Emphasis Added]

Although readers were likely aware that COVID-19 is causing consternation in booking travel arrangements, this particular warning definitely made this reader acutely cognizant of the possible long term ramifications of failing to make timely travel arrangements back to the USA. On the one hand the term “indefinitely” could be viewed simply as “unspecified period” or “foreseeable future,” but, on the other hand, it certainly has a somewhat ominous undertone. Therefore, those with an intention to return to the USA sooner rather than later are well advised to make all necessary arrangements as soon as possible in order to forestall a situation wherein one’s return to the USA is delayed for a substantially prolonged period of time. Concurrently, those wishing to remain in Thailand are strongly advised to fully ascertain the posture of their visa status as falling into overstay could result in the precarious predicament of being stuck in Thailand out of visa status while simultaneously being unable to return to the USA. This could lead to a situation wherein one finds themselves arrested and/or placed in the Thai Immigration Detention Center. Under such circumstances detention could prove to be a prolonged ordeal as  arranging an expedited deportation could prove difficult in light of the fact that international flights have been severely truncated and the latitude of travel for the deportee may be restricted as other countries may not wish to accept such an arrival especially if onward travel to the USA cannot be readily arranged.

Although we will be updating this blog as the situation evolves, the administration of this platform strongly urges readers to seriously ponder their situation as failure to make a decision in a timely manner could have serious consequences in the future.

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4th April 2020

It recently came to this blogger’s attention that the Thai government has halted all incoming flights from overseas to Thailand. To quote directly from a recent article in Thai PBS World:

“[T]he prime minister wants to see stringent measures imposed on overseas arrivals for the period between April 2-15.  The Foreign Ministry has been tasked to find out ways to implement the directive from the prime minister.”

Further, in another article from The Nation, the following was noted:

“Taweesin Visanuyothin, spokesman for the Centre for Covid-19 Situation Administration, said Prime Minister Prayut Chan-ocha has told the Foreign Ministry to issue a new directive prohibiting new arrivals.”For the immediately foreseeable future, it appears that it will not be possible for anyone to enter Thailand by air.

Clearly, the Thai government has deemed the COVID-19 issues of a seriousness that it warrants across the board restriction of incoming flights. That stated, there appears to be a end date for these restrictions on the horizon. In a further article from the Bangkok Post:

“All passenger flights have been banned from landing in the country to curb the outbreak of the new coronavirus, the aviation agency said on Friday. The ban came into effect on Saturday morning and will run until the end of Monday, the Civil Aviation Authority of Thailand said in an order published late on Friday.”

Whether the government decides to extend this restriction on in-bound flights due to Coronavirus concerns remains to be seen. However, it seems logical to infer that if the restriction is lifted and in-bound flights are allowed to come to Thailand, the previously enacted restrictions on foreigners traveling to Thailand is likely to remain in effect over the medium term. To quote directly from the aforementioned Civil Aviation authority of Thailand:

With reference to the declaration of state of emergency in Thailand on 25 March 2020, the Civil Aviation Authority of Thailand hereby issues travel advisory to passengers planning to enter Thailand as follows:

1. Passengers or persons shall be permitted to enter, Transit or Transfer Thailand through international airport only if they fall under one of the following categories:

(a) Being in the situation or a person exempted by the Prime Minister or Permanent Secretary of Ministry of Foreign Affairs, under certain conditions and prescribed time period

(b) Carriers of necessary cargoes, but required prompt exit after the mission is completed

(c) Pilot-in-command, and crew members of the flight entering Thailand with clear schedule to depart

(d) Persons on diplomatic or consular mission, or under International Organizations, representatives of the government performing their duties in Thailand or other persons or international agencies that the Ministry of Foreign Affairs gives permission, and their families. In this case, certificate of entry to the Kingdom issued by Ministry of Foreign Affairs is required.

(e) Non-Thai nationals with work permit or who have been granted permission from Thai government agencies to work in Thailand (Smart Visa only)

(f) Thai nationals with certificate of entry to the Kingdom issued by Royal Thai Embassy or Royal Thai Consulate in their country of residence certifying that they are Thais returning to Thailand, and a Fit to Fly Health Certificate.
2. The persons in (d) (e) and (f) must have Fit to Fly Health Certificate issued no more than 72 hours before traveling.
3. Passengers or persons permitted to enter Thailand shall strictly comply with disease prevention measures imposed by the government.
4. The immigration officers have the power to deny the entry of Non-Thai nationals who have been tested positive for COVID- 19, or under the suspicion of being infected or who refuse to undergo such test.
5. All previous Notifications of CAAT become ineffective.

With limited exception, the vast majority of foreigners are not going to be permitted to enter Thailand in the upcoming weeks. The vast majority of those who are permitted to enter the Kingdom are likely to be Thai Work Permit holders. Bearing that in mind, it is notable that foreign nationals in Thailand maintaining work permit as well as Thai business visa status are likely to find unforeseen issues in renewing their work permits in coming months. This will likely be due to the unintended consequences of all of the lay-offs, furloughs, terminations, and voluntary reductions of work hours for Thai employees working in the Thai business sector.

In order to maintain a Thai work permit and business visa it is required that a Thai company maintain a 4-to-1 ratio of Thai employees to foreign employees. For those foreigners using a Thai marriage visa as a platform for maintaining lawful status in Thailand as well as employment authorization the ratio of Thai employees to foreign employees is 2:1. With this in mind, the small business sector of Thailand is likely to see a significant contraction of its workforce in the second and third quarter of 2020. As Thai employees are furloughed, terminated, or resign (sometimes in order to be eligible for newly created Thai unemployment benefits) it is likely that this will have a direct impact upon the Thai/Foreign employee ratio. If the ratio of Thai to Foreign employees is not maintained within a Thai business organization, then an application for a Thai business visa extension or Thai work permit renewal may prove impossible. Therefore, those businesses, small and large, employing foreigners in Thailand should keep a sharp eye on their labor force if they wish to maintain their foreign employees’ lawful status. This can be an especially acute issue for self-employed foreign nationals in Thailand who are using their Thai limited company as a platform to maintain their status. Those in the precarious position are strongly encouraged to seek the advice and counsel of legal professionals experiences in Thai corporate compliance, accounting, staffing, immigration, and labor issues

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