Integrity Legal

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


19th March
2020

It now appears that all visa services provided to foreign nationals at American Embassies and Consulates abroad have been suspended. In a recent article from Reuters, the following was reported:

The United States is suspending all routine visa services as of Wednesday in most countries worldwide due to the coronavirus outbreak, a spokeswoman for the State Department said, an unprecedented move that will potentially impact hundreds of thousands of people…The State Department spokeswoman said U.S. missions abroad will continue to provide emergency visa services “as resources allow,” and that the services to U.S. citizens will remain available.

Concurrently, the following message was issued by the US Embassy in Thailand:

Information for Immigrant Visa applicants regarding novel coronavirus: As of March 19, 2020, the United States Embassy and Consulate in Thailand are cancelling Immigrant Visa appointments until further notice.  We will resume routine Immigrant Visa services as soon as possible but are unable to provide a specific date at this time.  Once we resume Immigrant Visa operations, we will contact you with a new appointment date. Applicants who had their Immigrant Visa interviews cancelled due to the cessation of operations will be given first priority for rescheduling.

Meanwhile, it now appears that all intending entrants to Thailand will be required to present a medical certificate prior to boarding a plane for Thailand. To quote directly from a recent article in the Bangkok Post:

The Civil Aviation Authority of Thailand now requires all air passengers, Thai and foreign, to show Covid-19-free health certificates and Covid-19 insurance before boarding their flights to Thailand…Airlines must require passengers to present health certificates issued no more than 72 hours before the  flight departs. The certificates must guarantee that the passengers are free of Covid-19, regardles where they board. Airlines must also require that passengers have insurance covering Covid-19 treatment in Thailand, up to at least US$100,000.

We will keep this blog updated as the situation evolves.


14th March
2020

We have been trying to keep up on the news regarding Coronavirus (also know as COVID-19) in #Thailand. In prior posts on this blog we noted that a number of countries have had their visa on arrival or 30 day stamp privileges suspended. It now appears that Americans coming to Thailand will need to deal with new protocols upon entry. To quote directly from a recent Health Alert from the US Embassy:

There is an ongoing outbreak of Coronavirus (COVID-19) first identified in Wuhan, China.  The global public health threat posed by COVID-19 is high, with more than 145,000 reported cases worldwide. The government of the Kingdom of Thailand has implemented enhanced screening and quarantine measures to reduce the spread of COVID-19.  On March 13, 2020, the Kingdom of Thailand’s Ministry of Public Health added the United States to its list of countries with ongoing local transmission. Travelers entering the Kingdom of Thailand who have been in the United States within the prior 14 days are subject to self-monitoring and reporting requirements.  There are no mandatory quarantine requirements in effect at this time for travelers arriving from the United States who do not display signs of infection.  Travelers should be prepared for travel restrictions to be put into effect with little or no advance notice.  Visit the website of Ministry of Public Health for additional information on these new measures.

We urge readers of this blog to click on the link above to read the complete announcement. Clearly, Thai officials are taking increasingly stringent precautions as the coronavirus pandemic continues to accelerate. It appears officials from the American Embassy will be assisting Americans where possible in the coming days. We will keep readers updated on this blog as the situation evolves.


12th March
2020

It now appears that the previously discussed restrictions of visa exemption and visa on arrival privileges will be implemented. To quote a recent article from The Nation:

(Update) Beginning on Friday (March 13), visitors to Thailand from 18 countries will no longer be eligible for visas on arrival, Interior Minister Anupong Paochinda announced on Thursday…Anupong said visitors must apply for visas in their home countries and bring a certificate of sound health…Visitors from hard-hit locales Italy, South Korea and Hong Kong also become ineligible for visa-free entry, he said. The 18 countries are Bulgaria, Bhutan, Cyprus, Ethiopia, Fiji, Georgia, India, Kazakhstan, Malta, Mexico, Nauru, Papua New Guinea, Romania, Russia, Saudi Arabia, Uzbekistan, Vanuatu and “China (including Taiwan)”…Department of Consular Affairs’ director-general Chatree Atchananant said earlier today that there would be no official announcement of the measure until the Cabinet considers it on March 17, before Anupong came out later to confirm that the measure would be implemented tomorrow (March 13).

As evidenced from the back-and-forth noted above, the coronavirus (or COVID-19) pandemic is causing a great deal of confusion at a policy level as officials seem hard pressed to come to a coherent solution which will protect the uninfected while simultaneously having the least detrimental impact upon foreign tourism and the overall Thai economy.

As this situation continues we will update this blog accordingly.


12th March
2020

In our prior posting on this blog the issue of coronavirus and the impact upon US and Thai Immigration was discussed. At the time of that posting it appeared that a number of foreign nationals were going to see their visa exemption and/or visa on arrival privileges suspended in the wake of COVID-19 being declared a pandemic by the World Health Organization. It now appears this this policy is being put on hold. To quote directly from the Star:

The government has put on hold its plan to suspend visa on arrival (VoA) for 18 countries and visa-free entry from high-risk areas (South Korea, Hong Kong and Italy) after an urgent meeting on Thursday (March 12). The Department of Consular Affairs director-general, Chatree Atchananant, said that the matter will be discussed further at a Cabinet meeting on March 17.

Exactly if or when this policy will be enforced, if ever, remains to be seen. It is clear that governments around the world are having difficulty in crafting coherent policy in response to the spread of COVID-19. WE will keep this blog as up to date as possible as the situation evolves.


11th March
2020

The Coronavirus, also referred to as COVID-19, has been a major issue in recent days and it appears to be having a substantial impact upon immigration policy in the United States of America and the Kingdom of Thailand. In a recent article from the Bangkok Post, it was noted that visa exemption stamps and visa on arrival privileges are being suspended for citizens of certain countries, quoting directly from a recent article:

Thailand on Wednesday cancelled the grant of visa on arrival for 18 countries and visa exemption for three others…The 18 places are: Bulgaria, Bhutan, China (including Taiwan), Cyprus, Ethiopia, Fiji, Georgia, India, Kazakhstan, Malta, Mexico, Nauru, Papua New Guinea, Romania, Russia, Saudi Arabia, Uzbekistan, and Vanuatu. Visa exemption will be cancelled for South Korea, Italy and Hong Kong…

It also appears that Thai Embassy and Consulate officials will begin requiring medical certificates by visa applicants, to quote directly from a recent article in Reuters:

Chatree Atchananant, director-general of the foreign ministry’s Consular Affairs Department, said visa applicants will need to present medical certificates and insurance as part of the screening at Thai embassies.

Meanwhile, some days ago officials in the USA had previously announced that US visa issuance and travel would be greatly curtailed by those either coming from China or other areas impacted by the virus. More recently, it has been announced that all travel from Europe to the United States will be suspended. To quote directly from a recent article from Bloomberg:

President Donald Trump said he will suspend all travel from Europe to the U.S. for the next 30 days, the most far-reaching measure yet in the administration’s efforts to combat the spread of coronavirus…The World Health Organization earlier Wednesday declared the outbreak is now a pandemic and urged governments to step up containment efforts as the number of worldwide cases topped 123,000 and deaths exceeded 4,500.

As the coronavirus outbreak continues the travel industries of various countries are reeling. In Thailand, the tourism industry has taken a major hit. Concurrently, the immigration systems of both the USA and Thailand are dealing with the issue in different ways. Although the laws governing Thai visa and American visa issuance have not substantively changed, Thai and American immigration and customs officials have broad plenary and discretionary authority to deal with public health and safety matters as they see fit. Exactly how this situation will continue to evolve remains to be seen, but we will continue posting information and analysis on the legal and immigration ramifications of this pandemic.


1st March
2020

In recent months, both Thai and American immigration systems have been in a state of flux. In some ways the systems have become more streamlined, but in other ways it is becoming more difficult to navigate these systems. The Trump administration has been implementing policies which make immigration to the United States more difficult, as a practical matter. Recently, these prerogatives are starting to have an impact on the ground in Thailand, Laos, Cambodia, and ASEAN as a whole. For example, Myanmar has been placed upon a list of countries banned from traveling to the USA. As a result, Myanmar nationals will not be able to enter the USA, nor will such nationals be granted visas to travel to the USA. If and/or when this ban will be lifted remains to be seen.

Meanwhile, there has been a great deal of discussion surrounding the administration’s implementation of new public charge rules in relations to immigrant visas for the USA. It is clear that there will be a direct impact upon those who are seeking family based immigrant and non-immigrant visas to the United States. For example, those seeking a CR-1 visa or an IR-1 visa will need to deal with the DS-5540 Public Charge Questionnaire when undertaking Consular Processing of their cases at the US Embassy or US Consulate in the jurisdiction in which the applicants reside. Concurrently, it is also clear that those who travel to the United States on a K-1 visa or a K-3 visa will need to deal with the I-944 form as part of the implementation of public charge adjudication during adjustment of status to lawful permanent residence (a.k.a. “Green Card” status”).

A question posed to this blogger recently: When seeking a K visa abroad, will I need to fill out a DS-5540? The answer to this question is not overly clear at first glance. This blogger did some research and came upon the following information in the Foreign Affairs Manual:

9 FAM 302.8-2(B)(4) (U) Applying INA 212(a)(4) to Nonimmigrants

d. (U) Alien Seeking Admission as K Nonimmigrants: K nonimmigrants and their petitioners are not permitted to complete form I-864. You may request a K applicant complete Form DS-5540 to assist in evaluating likelihood of becoming a public charge. Note that K applicants will again be assessed under the public charge ineligibility by USCIS at the time of adjustment of status where the K nonimmigrant seeking adjustment of status will be required to submit a Form I-864.

It is clear that non-immigrant visas are not the same thing as immigrant visas, but K visas are an odd hybrid creature in the immigration world and their posture in these matters can be somewhat fluid. Note that the FAM states the adjudicating officer “may request a K applicant complete Form DS-5540,” but it is not required. Meanwhile, it goes on to note that the applicant is not allowed to file an I-864 and that the issue of public charge we be adjudicated again at the adjustment of status phase of the process. Is this wording designed to allow American Embassies and Consulates leeway to not require K visa applicants to file a DS-5540? Perhaps, the practical implications of the public charge rule at the US Embassy in Thailand, Laos, and Cambodia remain to be personally witnessed by this blogger, but rest assured as soon a there is further clarification we will follow up on those developments.


9th February
2020

The coronavirus has been in the news quite a bit in recent days. It appears that China is taking drastic measures to curtail movement of people domestically and internationally in an effort to curb transmission of the disease. This article will look at some of the responses to these circumstances from both the Thai and American Immigration perspective.

Prior to the coronavirus’s prominence as a concern for international health authorities, Thai Immigration officials seemed to be mulling over the notion of waiving the fees associated with Thai tourist visas for Chinese and Indian nationals. This seemed to have been discussed in response to what was viewed by some as a rather less-than-optimal high season. Presently, it seems unlikely that visa fees will be waived for the foreseeable future. This news came at the end of a year which saw Thai Immigration officials promulgating regulations which placed new requirements and scrutiny on those seeking long-stay visas (including retirement, marriage, and business visas). It seems policymakers in the Immigration sector were looking to encourage a higher volume of tourists while simultaneously enhancing scrutiny and on those wishing to live in Thailand for prolonged periods.

As of the time of this posting, the numbers of Chinese nationals entering Thailand as tourists have substantially dropped. This is likely due to the fact that many cities and regions in China have been effectively quarantined and travelers are precluded from departing many cities in China for Thailand, or anywhere else. Concurrently, Thai Immigration authorities in airports are taking measures to screen individuals entering the country. However, it seems China’s domestic travel policies seem to be curtailing more travelers than Thai immigration policy. Exactly how coronavirus-related developments will further impact Thai immigration and tourism policy remains to be seen.

Meanwhile, Coronavirus is impacting United States Immigration policy. However, as of the time of this writing it seems that the impact will not be substantial for those seeking US visas from places such as Thailand, Laos, or Cambodia as a recent proclamation from President Trump stated:

“I have determined that it is in the interests of the United States to take action to restrict and suspend the entry into the United States, as immigrants or nonimmigrants, of all aliens who were physically present within the People’s Republic of China, excluding the Special Administrative Regions of Hong Kong and Macau, during the 14-day period preceding their entry or attempted entry into the United States.”

This news comes after reports that US visas are currently not being issued in China. Clearly, the administration is taking the coronavirus seriously, but it does not seem likely that this will directly impact the bulk of visa seekers from Southeast Asia. The current policy only will pertain to those who have visited China relatively recently. Therefore those seeking visas who hail from other countries (such as member states of ASEAN), and have not visited China, are unlikely to be affected by the new American proclamation regarding the coronavirus.


1st January
2020

By any estimate, 2019 was not a great year for those dealing with either the American or Thai Immigration systems. In 2019, those seeking to live in Thailand under an O retirement or marriage visa saw many of the rules regarding that visa category changed. For example, it is now no longer possible for many expats in Thailand to use income affidavits issued from the Embassies or Consulates of their home country in order to prove their financial ability to remain in the Kingdom. Concurrently, the regulations regarding the income or bank balance requirements associated with the marriage and retirement visas are now more strictly enforced and may require a more prolonged maintenance of a bank balance compared with times past. Meanwhile, with respect to Thai retirement visas specifically, the rules regarding retirement visa issuance and extension underwent another adjustment with the introduction of the rule that retirement visa holders in Thailand must obtain health insurance coverage in order to cover medical expenses while maintaining their retiree status in Thailand. Although there were no specific changes with regard to the rules pertaining to Thai business visas, 2019 saw a level of scrutiny with respect to adjudication which is rather unprecedented.

Meanwhile, in the USA the Immigration apparatus has seen a great deal of administrative transformation. Some Immigration practitioners in the USA are calling this the “Invisible Wall” in reference to the current President’s promise to build a wall to deter illegal immigration. With respect to US visas from Thailand specifically, it should be noted that 2019 saw the closing of the USCIS office in Bangkok. Moving forward through 2020 and beyond it appears that those who could once file for Immigration benefits through that office, including applications for IR-1 and CR-1 visas from Thailand, must now file their cases through the relevant USCIS office in the USA. Furthermore, it appears that the number of requests for evidence in cases involving American family based cases is on the rise while it remains to be seen exactly what the National Vetting Center is doing as cases processing through the National Visa Center seem to be processed in increasingly slowly. In cases involving K-1 visas from Thailand the overall process has seen little fundamental change, but the as with other American immigration petitions there seems to be a rise in the number of RFEs issued especially in the wake of changes to the relevant forms associated with such matters.

What can be expected moving forward? With respect to Thai Immigration it seems unlikely that fundamental changes to the retirement visa category (such as the medical insurance requirement) are in the offing. In fact, it seems that the current regulatory framework has been set in place as a rather permanently. However, there is speculation that insurance requirements may be imposed for other categories such as marriage visas and perhaps even business visas, but this remains pure speculation. Further, in light of recent down turns in certain parts of the Thai tourism sector and the increasing strength of the baht it seems Immigration officials are signaling a more moderating tone in order to forestall damage to the tourism sector. With regard to American immigration it seems logical to surmise that the trends of 2019 will continue into 2020 with everyone focusing upon the forthcoming election in November as a possible indicator of where immigration policy will be heading in the forthcoming decade.


6th December
2019

It is becoming increasingly clear that Thai Immigration officials are becoming ever more concerned with those who are working illegally in Thailand. Therefore, this state of affairs begs the question: how does one obtain and/or maintain work authorization in Thailand?

It should be noted that there are two ways in which one can obtain employment authorization in Thailand. One way is to receive an offer of employment from a Thai company. Generally, if the prospective employee is offered employment while abroad, then a WP3 work pre-authorization letter will need to be obtained and the foreign worker will need to apply for a Thai business visa before traveling to Thailand to have their work permit booklet issued. However, if the foreign worker is not abroad, then that individual may need to travel abroad in order to see to it that a WP3 is issued as the Thai Labor Department will only issue such documentation on foreign workers who are physically residing outside of Thailand. Within Southeast Asia, the WP3 is increasingly necessary as those Royal Thai Embassies and Consulates in the region which issue Thai business visas will only do so for those who have been issued a WP3.

Once in Thailand with a B visa, the prospective employee can seek their work permit booklet. Their employer must formally request such documentation as the employer is the sponsor of the work permit. After the permit is issued it should remain either on the premises of the place of business or if the employee must travel to another location to undertake work-related activity a copy should go along with the employee. It is worth noting that in March of 2018 the Thai Labor Department relaxed Thai work permit rules and therefore it is now possible for foreign work permit holders to engage in work activity away from their sponsoring-business’s premises.

The protocols regarding work permit issuance in the context of a business owner are qualitatively different compared to work permit issuance for someone wishing to be employed at a company in Thailand. One significant difference, especially in the context of an SME or a startup company is the “Catch-22” situation some prospectively self-employed foreigners find themselves in. For example, in order for an entrepreneur to obtain a work permit, they need a business visa, a WP3 is often necessary, and in order to obtain a WP3 a company is necessary. Therefore, Thailand company registration is often the first step toward obtaining a Thai business visa and work permit. Those wishing to setup a Thai company are well advised to seek professional guidance as there are multiple ways to incorporate a Thai business which, depending upon the legal structure, may provide differing benefits.


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