Integrity Legal

Posts Tagged ‘immigration’

14th February 2021

Since the last posting on this blog there have been a number of developments and discussions with respect to both Thai and American immigration issues. One development which has received substantial media coverage has been the Executive Orders signed by President Biden with regard to Immigration policy. Of particular note to the administration of this web log was the order titled: Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans. The content of this Executive Order seems designed to impose a new policy paradigm upon the Immigration bureaucracy (or perhaps reimpose of a previously existing paradigm). This effort to change the prevailing paradigm is evidenced in the opening lines of the order itself:

Consistent with our character as a Nation of opportunity and of welcome, it is essential to ensure that our laws and policies encourage full participation by immigrants, including refugees, in our civic life; that immigration processes and other benefits are delivered effectively and efficiently; and that the Federal Government eliminates sources of fear and other barriers that prevent immigrants from accessing government services available to them…The Federal Government should develop welcoming strategies that promote integration, inclusion, and citizenship, and it should embrace the full participation of the newest Americans in our democracy.

Clearly, the administration seeks to re-establish a sense of decorum and compassion tot eh immigration system. The order goes on the delineate as to more concrete steps toward those ends:

Sec. 3.  Restoring Trust in our Legal Immigration System.  The Secretary of State, the Attorney General, and the Secretary of Homeland Security shall review existing regulations, orders, guidance documents, policies, and any other similar agency actions (collectively, agency actions) that may be inconsistent with the policy set forth in section 1 of this order.

(a)  In conducting this review, the Secretary of State, the Attorney General, and the Secretary of Homeland Security shall:

(i)   identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits and make recommendations on how to remove these barriers, as appropriate and consistent with applicable law; and

(ii)  identify any agency actions that fail to promote access to the legal immigration system — such as the final rule entitled, “U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements,” 85 Fed. Reg. 46788 (Aug. 3, 2020), in light of the Emergency Stopgap USCIS Stabilization Act (title I of division D of Public Law 116-159) — and recommend steps, as appropriate and consistent with applicable law, to revise or rescind those agency actions.

(b)  Within 90 days of the date of this order, the Secretary of State, the Attorney General, and the Secretary of Homeland Security shall each submit a plan to the President describing the steps their respective agencies will take to advance the policy set forth in section 1 of this order.

(c)  Within 180 days of submitting the plan described in subsection (b) of this section, the Secretary of State, the Attorney General, and the Secretary of Homeland Security shall each submit a report to the President describing the progress of their respective agencies towards implementing the plan developed pursuant to subsection (b) of this section and recognizing any areas of concern or barriers to implementing the plan.

It remains to be seen precisely how this will impact the American immigration system, and it should be noted that the apparatus is unlikely to fundamentally change over night. That stated, there is good reason to hope there may be “light at the end of the tunnel” after months of seemingly unnecessary delay and obfuscation in the visa process. There does appear to one area of particular interest to the current administration with respect to US immigration. Namely, there have been a number of issues associated with the “Public Charge rule” and prior to the issue of COVID-19 coming to the forefront of immigration analysis, public charge was shaping up to be a significant obstacle for a number of family based immigration cases (including, but not limited to: the K-1 visa, the K-3 visa, the CR-1 visa, and the IR-1 visa categories). The recently promulgated order seems to take this issue seriously:

The Secretary of State, the Attorney General, the Secretary of Homeland Security, and the heads of other relevant agencies, as appropriate, shall review all agency actions related to implementation of the public charge ground of inadmissibility in section 212(a)(4) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(a)(4), and the related ground of deportability in section 237(a)(5) of the INA, 8 U.S.C. 1227(a)(5).  They shall, in considering the effects and implications of public charge policies, consult with the heads of relevant agencies, including the Secretary of Agriculture, the Secretary of Health and Human Services, and the Secretary of Housing and Urban Development.

(a)  This review should:

(i)    consider and evaluate the current effects of these agency actions and the implications of their continued implementation in light of the policy set forth in section 1 of this order;

(ii)   identify appropriate agency actions, if any, to address concerns about the current public charge policies’ effect on the integrity of the Nation’s immigration system and public health; and

(iii)  recommend steps that relevant agencies should take to clearly communicate current public charge policies and proposed changes, if any, to reduce fear and confusion among impacted communities.

(b)  Within 60 days of the date of this order, the Secretary of State, the Attorney General, and the Secretary of Homeland Security shall each submit a report to the President describing any agency actions identified pursuant to subsection (a)(ii) of this section and any steps their agencies intend to take or have taken, consistent with subsection (a)(iii) of this section.

It seems the administration is particularly keen to address the difficulties imposed by rules changes pertaining to public charge and hopefully some revision of the rules may be forthcoming sooner rather than later.

Meanwhile, although there has not been a great deal of substantive change to current immigration policy in Thailand, there has been a great deal of discussion regarding possible policy changes to in an effort to revitalize the Thai tourism sector which, depending upon the source, seems to have seen between 1-3 million layoffs since the response to the pandemic began. Once solution discussed has been the notion of a “vaccine passport” or “immunity passport“. Essentially, this notion centers upon the idea that those who can prove they have been inoculated against COVID-19, via one of the many vaccinations currently on the market, will be allowed to travel to Thailand without the need to quarantine in one of the alternative state quarantine (ASQ) facilities. Notwithstanding the fact that there has ben a great deal of discussion on this matter, it currently appears, as with the so-called “travel bubble” scheme, that this program will not be implemented any time soon. As the tourism sector in Thailand languishes, long stay tourists may avail themselves to special tourist visas or standard TR visas to stay in Thailand. Furthermore, the Thai retirement visa remains a viable option for those wishing to travel to Thailand for retirement purposes.

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5th January 2021

As 2021 dawned the situation in Thailand, specifically the response to COVID-19, deteriorated. Presently, in place of full lockdowns, much of Thailand is operating under a system of provincial imposition of “highly controlled area” status which is restricting many operations many people once took for granted. How has this impacted the immigration system? Initially, it seemed this turn of events would not impact prospects for gaining admission to Thailand. Then, it appeared that those from the UK might be restricted from arriving in Thailand. To quote directly from the Bangkok Post:

The Ministry of Public Health will ask the Centre for Covid-19 Situation Administration (CCSA) to defer the entry of British visitors to the country after the fast-spreading B117 strain of Covid-19 was found in four British nationals entering Thailand on Dec 21.

This caused a great deal of consternation especially among those seeking Thai visas from the Embassy in the UK. However, further deliberation seems to have resulted in the decision that arrivals from the United Kingdom will not be impeded. Quoting directly from The Nation:

Thailand’s measures to control the spread of Covid-19 are strong enough to not warrant special measures against travellers from the United Kingdom, Foreign Ministry spokesperson Thanee Saengrat said.

Based upon the above information, it seems logical to presume that the overall situation regarding foreign nationals arriving in Thailand remains much as it did prior to the new year. Meanwhile, a number of travelers are finding that trying to process their Thai visa application on their own from abroad is a cumbersome endeavor. The overall process of gaining lawful admission to Thailand is greatly changed compared to times past. One major sticking point for many is the addition of the certificate of entry to the process. This document is required in addition to a Thai visa. Concurrently, documentation showing a lack of infection for COVID-19 in addition to fit to fly documentation has proven nettlesome for many. Couple this with the fact that those entering Thailand are still required to undergo Alternative State Quarantine for 14 days prior to gaining total access to the Kingdom. There was some discussion regarding the possibility of seeing the quarantine time frame reduced to 10 days or even less. However, under present circumstances this seems highly unlikely. The notion of “travel bubble” arrangements also being brought online seems unlikely at this time as well.  Although many in Thailand are hopeful that the disbursement of a vaccine may result in a return of tourists in 2021. As of the time of this writing, this remains conjecture.

Turning to American immigration, many have found themselves in a kind of processing “limbo” with respect to cases such as the K-1 fiance visa as well as the various marriage visas including the K-3 visa, CR-1 and IR-1 visa categories. Currently, a large number of cases remain at the National Visa Center and seem unlikely to be processed out for interview soon. There appeared to be hope in the last part of the final quarter of 2020 as some cases were being scheduled for interview, but that hope may be dashed as the current situation in Thailand may result in further interview cancellations. This situation is fluid and still evolving.

Many hope that a transition to a new administration will herald an end to certain arbitrary and capricious aspects of the immigration process in its current form, but it should be noted that it takes time for bureaucracies to change and therefore a Biden presidency may not immediately see major changes to visa case processing in 2021.

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5th November 2020

For those unaware, our firm maintains a Youtube channel in order to provide daily updates regarding Thai, American, and international immigration matters as well as information of a general nature regarding Thai legal issues and legal news for expats.

In the aftermath of the 2020 election in the USA, there has been a question posed: how will the outcome impact American Immigration? As noted in a video on our aforementioned YouTube Channel, it appears that the ultimate result of the election is unlikely to have a dramatic impact upon American visa processing, at least in the near term. As noted in prior postings to this blog, the US government’s response to COVID-19 has resulted in a slowing of case processing at the United States Citizenship and Immigration Service (USCIS), the National Visa Center (NVC), and US Embassies and Consulates abroad (including the American Embassy in Bangkok). It seems unlikely that even if the government’s administration changes due to the election that we will see faster processing times for immigration cases in the near term. That stated, the situation remains fluid and unforeseen developments could see cases such as K-1 visa applications move with more speed compared to the past months.

The Thai Immigration situation remains fluid as well. Recently, the government terminated the Thai visa amnesty. Concurrently, it appears that some tourists are beginning to return to Thailand using the special tourist visa (STV) scheme. However, the tourist numbers are small compared to numbers in the years leading up to 2020. Thai Immigration and officials at the Ministry of Foreign Affairs seem increasingly keen to allow the return of expats from abroad. The O-A retirement visa category has been prioritized for issuance of certificates of entry (COE) for prospective travelers to Thailand. This is happening as foreign nationals traveling to Thailand in business visa status appear to be on the rise. Those who have a Thai spouse or other family in Thailand can also avail themselves of an O visa in order to enter the Kingdom.

There has been some conjecture that the Thai government may promulgate rules allowing property purchasers to travel to Thailand. This proposal seems to be geared toward increasing the demand for Thai condos. However, these proposals have yet to be taken up by relevant authorities and therefore it remains to be seen whether Thai property ownership will be deemed a sufficient reason for sponsoring a visa and/or certificate of entry for the Kingdom of Thailand.

The entire process for traveling to Thailand remains cumbersome compared to routine protocols. As noted above, a certificate of entry, in addition to a Thai visa, is necessary for one to travel to Thailand. Prospective entrants are also required to obtain fit to fly documentation and remain in alternative state quarantine (ASQ) for 14 days (although there is speculation this may be reduced to 10 days) before being permitted unfettered access to the Kingdom.

 

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8th October 2020

There have been some recent developments with respect to Thai immigration in recent weeks. Notably, the Thai visa amnesty was retroactively extended after ostensibly ending. Concurrently, it now appears that those who hold a Thai retirement visa (specifically an O-A or O-X visa as opposed to an O visa) will now be able to seek a Certificate of Entry to Thailand. There has also been discussion in recent weeks about the notion of decreasing the amount of quarantine that one must undergo when traveling into Thailand. Furthermore, Thai immigration officials have discussed easing travel restrictions for those traveling to Thailand on business as APEC card holders can now seek a COE while there has also been discussion about allowing certain businesspeople into Thailand without the requirement that they hold work permit status. However, implementation on rules regarding this issue remain to be seen. Finally, officials are attempting to bring the new Special Tourist Visa online as fast as they can, but actual practical developments remain to be seen. In short, there seems to be something akin to a “slow thaw” taking place with respect to Thai immigration rules and while things appear to be trending toward further opening of the country there is still a long way to go before normality returns.

Meanwhile, with respect to American immigration there have been some notable developments as the US Embassy in Bangkok has begun processing interviews again for those whose prior interview was cancelled due to the shutdown. It should be noted that interviews are merely being re-scheduled as cases that had not received an interview date prior the shutdown have yet to be scheduled, but the trend seems to be pointing to further interviews occurring in the future. Concurrently, news from inside the United States is not as positive as layoffs related to USCIS funding shortfalls may result in delayed processing times for immigration petitions. It appears likely that certain aspects of the American immigration process are poised to take longer compared to times past, while perhaps other segments of the process may be unaffected or, in limited circumstances, more expedited compared to more routine circumstances.

Amidst all of the turmoil in the immigration world, we are bringing online the Immigator App. Admittedly, the timing is not optimal for an app which assists people in keeping their visas, passport, and immigration documentation organized. However, in many ways it is more important than ever for people to keep careful track of their lawful immigration status and the documentation associated therewith. Therefore, we hope that this free app will assist both clients of our firm and the public at large in navigating the Thai, American, and international immigration systems.

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16th August 2020

The coronavirus pandemic continues to create issue in the realm of immigration. However, in an American context, politics may also be playing a role as noted in a recent article from Forbes:

“Earlier this month, the USCIS notified about two-thirds of its employees that they would be furloughed starting August 30th because of budget shortfalls, which the agency hoped Congress would fill in its next relief package before negotiations stalled recently…“I don’t think I can emphasize enough how large an issue this will be – we’re looking at the final days of legal immigration as we know it in the United States,” said Ruark Hotopp, a representative for USCIS workers in Nebraska…”

A decrease in manpower of the scope and scale contemplated in the article above, when discussing this possible USCIS furlough, would have a tremendous impact upon the American immigration apparatus as it would likely cause substantial increases in processing times and therefore delays in the acquisition of visas. It stands to reason that no visa category would be unaffected by this turn of events. Therefore, it is likely that those seeking employment based visas as well as family based visas (such as the K-1 visa, K-3 visa, CR-1 visa, or IR-1 visa) will see negative consequences should funding fail to materialize.

Meanwhile in Thailand, the Thai immigration system remains in a strange state. On the one hand, those stranded in Thailand have seen a chaotic situation unfold, to quote directly from the Bangkok Post:

“Immigration rules tend to remain unchanged and rather rigid for a prolonged period of time, but when they shift, they shift dramatically. COVID-19 may prove to be the catalyst for a major paradigm shift in terms of Immigration policy thinking in Thailand.”

Concurrently, those with long term Thai visas stranded abroad have had to wait patiently as returning to Thailand has proven effectively impossible until recent days and even those permitted to return to Thailand are only permitted to do so under extremely constrained parameters. The Thai government seems keen to permit entry of tourists to Thailand, while simultaneously concerned about forestalling the spread of infections. For these reasons, initiatives such as the “travel bubble” scheme were initially floated, only to be reassessed as it now appears that the “safe and sealed” initiative to allow in certain foreign tourists may be taking off. However, as the flight ban on the vast majority on in-bound air travel remains in force it seems unlikely that Thailand will see standard tourist numbers return in the immediately foreseeable future. That stated, the future of immigration policy in Thailand remains to be seen.

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7th July 2020

The Immigration systems of both the United States of America and the Kingdom of Thailand have arguably been subjected to more changes recently than they have undergone in many years. Recently, President Trump announced an expansion of his travel ban on certain foreign nationals. The relevant portions can be found in the excerpt from the White House’s website:

Sec2.  Suspension and Limitation on Entry.  The entry into the United States of any alien seeking entry pursuant to any of the following nonimmigrant visas is hereby suspended and limited, subject to section 3 of this proclamation:

(a)  an H-1B or H-2B visa, and any alien accompanying or following to join such alien;

(b)  a J visa, to the extent the alien is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any alien accompanying or following to join such alien; and

(c)  an L visa, and any alien accompanying or following to join such alien.

It should be noted, although the expanded ban appears to have rather wide ranging effects, those seeking the K-1 visa for a foreign fiancee, a K-3 visa, CR-1 visa, or IR-1 visa for the spouse of an American citizen are unaffected by this recent proclamation. That stated, while this ban does not have a direct impact, the fact that US Embassies and Consulates overseas are still not open for visa processing continues to stall immigration matters.

Meanwhile, Thailand is taking stringent measures in an attempt to forestall any further spread of COVID-19 in the Kingdom. With nearly 6 weeks of zero in-country transmissions, Thailand is a proving to be a global success story in the “fight” against Coronavirus. These measures appear to be bearing fruit, but Thailand remains in lock down from an international travel context. It was recently announced that some foreigners would be allowed to enter Thailand. At the same time, Thai officials are attempting to implement a “travel bubble” scheme which will allow some tourists to enter Thailand under specific conditions. As of the time of this writing, the initiation of “travel bubbles” has yet to be seen, but they are expected to come online in September. Thereafter, there will be a phased program of increasingly less stringent restrictions with the culmination presumably manifesting as tourism to resume as normal. It should be noted that the countries surrounding Thailand appear to be taking similar positions to that of Thailand with respect to inbound tourist arrivals, at least for the foreseeable future.

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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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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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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.

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27th May 2017

It has come to this blogger’s attention that the new administration in the USA has promulgated policies which will place more scrutiny upon those who may be applying for visas to the USA in the future. The proposed “extreme vetting” of US visa applications in a Consular Processing context appears to be aimed at narrow subsets of “red flagged” visa applicants. In order to best summarize this policy shift, it is necessary to quote directly from a relatively recent Reuters article:

The final cable seen by Reuters, issued on March 17, leaves in place an instruction to consular chiefs in each diplomatic mission, or post, to convene working groups of law enforcement and intelligence officials to “develop a list of criteria identifying sets of post applicant populations warranting increased scrutiny.” Applicants falling within one of these identified population groups should be considered for higher-level security screening…

The new administration appears keen to narrowly target those applicants which are deemed to be appropriate for “increased scrutiny”. However, a rather recent proposal has been submitted by the U.S. Department of State requesting implementation of the emergency review procedures of the Paperwork Reduction Act of 1995. In short, the DOS is requesting expedited processing of a request to modify the forms associated with applications for US visas. To quote directly from the US government website Regulations.gov:

The Department proposes requesting the following information, if not already included in an application, from a subset of visa applicants worldwide, in order to more rigorously evaluate applicants for terrorism or other national security-related visa ineligibilities:

  • Travel history during the last fifteen years, including source of funding for travel;
  • Address history during the last fifteen years;
  • Employment history during the last fifteen years;
  • All passport numbers and country of issuance held by the applicant;
  • Names and dates of birth for all siblings;
  • Name and dates of birth for all children;
  • Names and dates of birth for all current and former spouses, or civil or domestic partners;
  • Social media platforms and identifiers, also known as handles, used during the last five years; and
  • Phone numbers and email addresses used during the last five years.

 

Most of this information is already collected on visa applications but for a shorter time period, e.g. five years rather than fifteen years. Requests for names and dates of birth of siblings and, for some applicants, children are new. The request for social media identifiers and associated platforms is new for the Department of State, although it is already collected on a voluntary basis by the Department of Homeland Security (DHS) for certain individuals.

It is this blogger’s opinion that the long term implications of these policy changes will be broad. However, from reading the aforementioned notice, it appears that, at the present time, DOS personnel will only be seeking more detailed information on certain individual applicants, and not from all applicants seeking visas to the USA. How will the narrow subset of applicants subject to increased scrutiny be determined? To answer that it is necessary to quote further from the Regulations.gov website:

Department of State consular officers at visa-adjudicating posts worldwide will ask the proposed additional questions to resolve an applicant’s identity or to vet for terrorism or other national security related visa ineligibilities when the consular officer determines that the circumstances of a visa applicant, a review of a visa application, or responses in a visa interview indicate a need for greater scrutiny.

Notwithstanding the fact that enhanced scrutiny will apparently only be applied on a case by case basis and only upon those individuals who are deemed to be in need of such scrutiny it seems logical to infer that at some point these additional screening protocols may be applied on a broader basis; if for no other reason than the fact that applying such scrutiny across the board might save time and resources of Consular Officials making cases by case determinations. As it stands, as of the time of this writing, the new protocols add a degree of uncertainty to the visa application process and Consular processing in general as it is difficult to foresee what may be considered a trait which warrants heightened scrutiny. Therefore, planning for such an eventuality is problematic.

As this situation continues to evolve this blog will post further updates.

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