Integrity Legal

Posts Tagged ‘visa’

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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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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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.

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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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