Integrity Legal

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21st March 2010

Although delicate, the issue of prostitution in Thailand and the impact upon United States Immigration is something that an American Immigration attorney in Thailand should discuss, if for no other reason than the fact that there is a great deal of misinformation about this topic throughout the internet.

First, the relevant law: The United States Immigration and Nationality Act §212(a)(2)(D) has the following to say on the topic of inadmissibility and prostitution:

(D) Prostitution and commercialized vice

Any alien who—

(i) is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status,

(ii) directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10-year period) received, in whole or in part, the proceeds of prostitution, or

(iii) is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution,

is inadmissible.

It should be noted that legality is not an issue when it comes to prostitution as even a legal act of prostitution is a legal ground of inadmissibility from the United States of America. In the US State of Nevada, prostitution is legal provided the brothel has a license and comports to certain regulatory rules with regard to health and advertising. However, the act of prostitution itself is not illegal under in Nevada so long as the prostitute works in a licensed establishment. Regardless of the fact that the act may be legal, the Immigration and Nationality Act still makes the act a legal grounds of inadmissibility if it occurred within 10 years of the application for admission to the United States of America.

This seemingly glaring disjunction is the result of the American doctrine of Federalism. In the US, there is one sovereign in the form of the Federal government and 50 sovereigns in the form of the 50 US states. It is possible that State and Federal law will occasionally conflict. For Immigration purposes, the Federal regulations and statutes are controlling over state law. Therefore, regardless of the fact that an act of prostitution may be legal in a US state, it may still be a legal grounds of inadmissibility if it occurred within 10 years of an application for admission to the USA.

In Thailand this is important to note because prostitution is only vaguely defined in criminal statutes. Under the provisions of the Thai Prevention and Suppression of Prostitution Act of 1996 the definition of prostitution is defined as:

“‘prostitution’ means sexual intercourse, or any other act, or the commission of any other act in order to gratify the sexual desire of another person in a promiscuous manner in return for money or any other benefit, irrespective of whether the person who accepts the act and the person who commits the act are of the same sex or not…”

The obvious problem with this definition is the phrase “in a promiscuous manner.” Authorities in Thailand seem to operate under the assumption that acts of prostitution occurring in private are not promiscuous and therefore do not meet the legal definition of prostitution. The United States immigration authorities do not take this view and their view of prostitution falls in line with the more traditional definition which mandates finding of previous engagement in acts of prostitution if the individual in question was paid in exchange for providing sexual gratification.

If a Consular Officer at a US Embassy or US Consulate abroad finds an alien inadmissible because the alien has engaged in prostitution within 10 years of filing an application for a US visa, then the alien will not be able to obtain a US visa, nor will they be allowed to enter the United States of America. This decision is not subject to appeal.

What is the solution if an alien is found inadmissible based upon a finding that they have engaged in prostitution within 10 years of applying for a US visa? Fortunately, the Immigration and Nationality Act provides a remedy for those who are found inadmissible under these circumstances. An I-601 waiver may be filed with USCIS and if approved, the alien will be able to seek admission to the United States of America.

Throughout the internet there are those who claim that the best way to avoid this issue is to lie to a Consular Officer or “omit certain facts.” This practice is highly inadvisable. First, it is illegal and in some cases punishable by five years in a federal penitentiary and a $250,000 fine. Second, it could lead to further problems for an alien because lying to a Consular Officer could result in a finding that the alien had engaged in fraud and misrepresentation which is a separate ground of inadmissibility. Third, such advice is highly unethical and reflects adversely upon anyone who advises a client to lie to a Consular Officer or in a visa application. Run, don’t walk, away from anyone who gives this kind of advice as it is unethical, illegal, and could result in a permanent bar to entering the United States.

Our firm’s policy is to disclose all legally relevant facts and deal with the legal consequences in a straightforward manner.

For More Information Please See: US Visa Thailand.

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