Integrity Legal

Archive for May, 2009

27th May 2009

Although it seems like a simple issue, discerning the difference between a fiancée and a wife for the purposes of US Immigration can be crucial, and oftentimes less than straightforward when looked at from the perspective of International law.

The reason for the unexpected ambiguity stems from the fact that different countries have different legal systems and as a result, there are different methods for legalizing marriages. The English common law is in place in the United States, as in many former British Colonies and current members of the British Commonwealth. As a result, in many of these countries the principle of “common law marriage,” has either been in previous existence under the law or is currently still good law. In either case, in common law countries, the concept of “common law marriage,” is a widely understood notion amongst laypeople.

In civil law countries, there is usually no history of judicial recognition of anything akin to a “common law marriage.” That being said, not all civil law countries deal with marital issues in the same way. There are instances where an otherwise “civil law” country will promulgate “common law,” legal mechanisms by statute (an example being where a civil law country adopts trust law via statute).

In countries that have no history of “common law marriage,” a marriage is only legalized upon compliance with whatever rules govern marriage formalization. For instance, in the Kingdom of Thailand a marriage is only legalized by registration at the local government office (known as an Amphur office in Thai). Failure to register a marriage results in a situation in which the couple may consider themselves married, but they are legally unwed. For more on this issue please see:  Marriage Registration Thailand

Deciding whether a couple is legally married is important from a US Immigration perspective because a couple’s marital situation can have a major impact upon their ability to obtain certain types of visas. Marital situation can also impact the processing time of a US visa. Therefore it is important to be clear on the couple’s marital situation upfront. In Thailand, for example, many couples engage in a ceremonial or customary wedding ceremony, but never formalize a marriage. Filing for a marriage visa rather than a fiancee visa can lead to a great deal of wasted time and resources because USCIS and the US Embassy are unlikely to grant the marriage visa because the couple is not legally married.

(Please be advised that all of the information contained in this writing is for educational use only and does not constitute legal advice. Legal advice should be obtained in a one-on-one consultation with a licensed attorney. No attorney client-relationship is formed between any reader of this piece and the author.)

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26th May 2009

The American State Department, as of May 24th, has begun offering benefits to same sex partners of American diplomats and State Department employees. This comes after many years of the US State Department refusing to grant benefits to same sex partners and spouses. The justification that the state department previously used was based upon the Defense of Marriage Act. State Department officials often sighted DOMA claiming that it precluded allowing benefits for same sex partners.

The current move made by the State Department signals a major shift in state department policy on the issue of same sex domestic issues. Of great import is the fact that among other benefits, same sex partners will be issued diplomatic passports along with their diplomat partner or spouse.

In a State Department memo circulated pursuant to this regulatory change Secretary of State Hilary Rodham Clinton hinted that this change was overdue. Secretary Clinton stated, “At bottom, the department will provide these benefits for both opposite-sex and same-sex partners because it is the right thing to do,”

This begs the question that if, at bottom, these benefits ought to be conferred because “it is the right thing to do,” then isn’t granting same sex couple’s US Family Immigration benefits the right thing to do as well? The Uniting of American Families Act is a piece of legislation that would allow US citizens to obtain US visas for their alien same sex partner.

In this situation, the US State Department has disregarded the spirit of the Defense of Marriage Act by conferring these benefits upon same sex partners and will likely prevail in doing so because offering these benefits is a prerogative of the Secretary of State and under the bailiwick of the executive branch of the United States government (Under the doctrine of Separation of Powers, there are certain areas in which each branch of government cannot be challenged by another branch).

The UAFA also subtly avoids the restrictions imposed by the Defense of Marriage Act by creating a new category of US Visa under the United States Immigration an Nationality Act. This new visa category would allow an alien to obtain a US visa based upon family relationship if the meet the definition of “permanent partner.”

As we have previously stated on this blog, the US Immigration implictions of the enactment of the Uniting of American Families Act would be a watershed for Same Sex immigration rights as well as a very interesting case study in conflict of laws.

For more information on US Immigration from Thailand Please see:

K1 Visa Thailand

Fiance Visa Thailand

K3 Visa Thailand

(Please note that the information contained herein is for educational purposes only and should not be used as a substitute for legal advice. No lawyer client relationship is formed between author and reader).

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25th May 2009

An issue that many Thai-American couples grapple with is that of deciding whether or not to register a marriage in Thailand or wait and conduct a marriage in the United States. This is an issue that can have a major impact on a Thai-American couple’s US Immigration options because United States Citizenship and Immigration Services as well as the US Embassy in Thailand view a couple with a registered marriage differently than a couple without a registered marriage. Also, a US Citizen’s marital status vis-a-vis a Thai Fiancee or Thai wife will affect the processing time for the type of visa being sought, and not in a way that most people expect.

The Irony of K1 Visas from Thailand: Why being Unmarried may be Beneficial

A counter intuitive aspect of K1 visas is the fact that they are generally a faster visa and immigration option than a marriage visa. This is due to the fact that there seems to be a lower case backlog of K1 visas at USCIS when compared to CR-1 and IR-1 Visas.  Also, the fact that a K1 visa is a non-immigrant visa might lead to less scrutiny from both USCIS and the US Embassy because the visa does not confer permanent residence, conditional or otherwise. This is not to imply that either adjudicators at USCIS or consular officers at the US Embassy in Bangkok are not fully conducting due diligence, but instead there seems to be an inherently lower level of scrutiny for non-immigrant visas when compared to immigrant visas. This is also true when comparing the K1 visa to a US tourist visa because the applicant for that visa must overcome the 2statutory presumption of immigrant intent. Since a fiance visa is a “hybrid visa” there is no need to overcome the presumption of immigrant intent threshold in order to be granted the visa, as with other non-immigrant visas.

Marriage Visas from Thailand

Some people who have already married in Thailand ask if it is possible to register a Thai divorce and subsequently apply for a K1 visa. Although technically feasible, the discretionary power of adjudicators in both USCIS and the Embassy in Bangkok could result in a finding that the relationship is not bona fide because the couple is divorced only to enjoy the benefit of faster processing times of the K1 visa over the US Marriage visas. For those married and residing in Thailand it may be possible to apply for an immigrant visa at the local USCIS office in Bangkok, in this situation marriage registration may be a boon to the Thai-American couple.

Thanks for reading, for more information please see: Marriage Registration Thailand or US Visa Thailand

(Please note: this writing is intended for informational purposes only and should not be utilized as a substitute for legal advice from a Licensed US Immigration Lawyer. No attorney client relationship is created between the author and any reader of this piece.)

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24th May 2009

The US-Thai Treaty of Amity is an agreement between the Kingdom of Thailand and the United States of America that provides benefits for Thai investors and businessmen in the USA and also provides economic benefits to Americans in Thailand. The most important benefit conferred by the Treaty of Amity is the right of Americans to form a Treaty of Amity Company. A Treaty of Amity Company is a corporate structure similar to a Thai limited company.

The major difference between a Thai limited company and an Amity Treaty company is the fact that an Amity Company can be one hundred percent owned by non-Thais provided the owners are American Citizens. Under Thai law there must be at least three shareholders, but one shareholder could virtually own the Amity Company outright by owning 99% of the shares in the company.  

The content written heretofore begs the question: why is American ownership such a big deal? For those unfamiliar with the Thai legal system, a statute known as the foreign business act stipulates that a Thai company must either be majority Thai owned or an application for a foreign business license will be necessary. Foreign business licenses are somewhat difficult to obtain. That being said, the Amity Treaty preceeds the Foreign Business act and its provisions supercede the foreign business act.

A major issue regarding the Treaty is the fact that it only applies to Americans. No other group of foreign nationals is accorded the same level of economic protection as that conferred upon Americans doing business in Thailand under the Thailand Treaty of Amity. As a result, many prospective business owners from nations other than the USA often ask if it is possible to utilize nominee American shareholders in a Thai company in order to meet the technical requirements of the US-Thai Treaty of Amity.

In theory, such a scenario was once possible. However, amendments to the foreign business act have made nominee shareholders expressly illegal. Also, the Foreign Business Office of Thailand has determined that only an American or a Thai is allowed to be the Managing Director of a company with protection under the US-Thai Amity Treaty.  The upshot of both of these rules is that, as a practical and legal matter, only Americans or Thais can own a majority position of a Thai company with Treaty benefits.

For more details about US-Thai Economic Relations please see: Amity Treaty Thailand

(Nothing herein is meant to act as in the place of competent legal advice from a licensed attorney. No Attorney-Client relationship shall be formed between the writer and any reader of this piece.)

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23rd May 2009

There are many immigration options for those wishing to stay in Thailand on either a full time or part time basis. The Immigration option most familiar to short term travelers is the Thai visa exemption which allows a non-Thai national entry into the country without obtaining a visa. Many people who enter Thailand on a visa exemption believe they are actually on a visa. In reality, they have been granted lawful presence in Thailand without a visa.

Map to Thailand Immigration Bureau

Thai Education Visas

An Education visa in Thailand is very useful as a long term visa option particularly in light of the proliferation of affordable Thai schools that offer assistance in applying for a Thai ED visa. The major downside to the ED visa is the fact that there is no automatic right to work inherent to the visa. Also, the ED visa does not accrue time necessary to obtain Thai Permanent Residence.

Thailand Retirement Visa

A Thailand retirement visa is very useful for those who fit the criteria set forth under Thailand Immigration Law. One of the major criterion for obtainment of a Thai retirement visa is that the applicant be at least 50 years old at the time of application. Another requirement is that the applicant meet the minimum financial threshholds determined by the Thai Immigration Bureau’s internal regulations. A positive aspect of the Thai retirement visa is the fact that one holding such a visa does not need to go on “border runs,” every 90 days. However, a person present in Thailand on a retirement visa will not be able to secure a Thailand work permit.

Thailand Business Visas

As discussed in previous posts, a Thai Business visa is a very flexible option for those wishing to remain in Thailand in order to work, invest, or conduct business negotiations. The visa itself does not confer a right to work, a Thai work permit is still a necessity, but a work permit is usually easy to obtain where the visa holder has secured legitimate employment or has registered a Thai company.

Thailand Other Visas

The Thai “O” Visa, the “O” stands for other, is a designation for a visa that does not really fit into any of the aforementioned categories. The “O” visa is used for Thailand Family Immigration especially where a foreign spouse of a Thai national wishes to reside in Thailand. For those present in Thailand on an “O” visa, there may be some difficulty securing a work permit if the visa is not based upon filial realtionship to a Thai.

Thanks for Reading,

For information on US Immigration from Thailand please see:

multiple entry visa

Fiance Visa Thailand

Marriage Visa Thailand

US Embassy Bangkok

(No content written in this post should be used instead of consulting an attorney. No attorney-client relationship is created between the writer and any readers of this post).

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22nd May 2009

In Thailand there are many so-called “visa agents,” “Immigration Consultants,” and “Immigration Specialists,” who sound legitimate, but who are in fact unlicensed practitioners of law. Only an attorney licensed and in good standing in at least one of the 50 United States, territories, or possessions is entitled to practice United States Immigration law. Internal memos at USCIS have even delineated exactly what constitutes the “practice of law,” for US Immigration purposes. 

According to USCIS, even advising another person about which form should be used to file for a certain type of visa constitutes the practice of law. To advise another in this manner without being duly licensed by at least one US state to practice law would constitute the UNLICENSED, and therefore UNLAWFUL practice of law. 

In the United States there is a prevalence of so-called “notarios,” these are operators who prey upon unsuspecting immigrants in both the United States and Mexico. In Thailand, these people use names such as: visa consultant, visa agent, visa specialist, immigration consultant, immigration agent, immigration specialist, legal consultant, or simply legal advisor. A problem in Thailand is the fact that the government has no mechanism for regulating us visa lawyers in Thailand. This is especially confusing for the layman because only a licensed American attorney is authorized to represent a client before USCIS. Therefore utilizing a Thai attorney or Thai law firm to prepare an immigration petition is not proper procedure per USCIS regulations if the attorney filing the petition is not licensed in the USA. 

Even worse than mere visa agents, there are those who falsely claim to be attorenys from the United States. Again, the lack of foreign attorney registration in Thailand contributes to a proliferation of this type of character.

The real problem with these outfits and unscrupulous operators is the fact that often they have no real grasp of US Immigration Law. Immigration law is one of the most complex areas of American jurisprudence and because it is entirely statute driven it can change very quickly and for a non-lawyer who does not keep abreast of new legislation the ignorance can be damaging to a client’s case. 

In cases of great complexity (601 waivers, IMBRA issues regarding fiancee visas, forum issues for K3 visas, etc.) a visa agent or anyone else without a great deal of experience and education in immigration can detrimentally affect a prospective immigrant’s chances of entry into the USA, possibly for life.

There are certain non-profit organizations that are allowed to represent immigrants before USCIS. Generally these groups deal with refugees, but in certain instances they deal with other issues. That being said, the operative term is NON-PROFIT meaing that this type of representative generally will not charge a fee, and if they do, then the fee is usually nominal.

That being said, when contacting an attorney or anyone regarding American Immigration, always ask which state the attorney is licensed in and inquire about his or her bar number.  

For more please see:

US Immigration Lawyer Thailand

K1 Visa Thailand

K3 Visa Thailand

(The information in this piece is intended for educational and informational use only and should not be used in place of an attorney consultation. For legal advice please consult a licensed attorney in your jurisdiction. No attorney client relationship is formed between the reader and author of this post).

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20th May 2009

If a child is born in Thailand and one of the child’s parent’s is a US citizen, then it may be possible to obtain a US passport for the child in Thailand. Before the passport can be obtained, it will likely be necessary to file a consular report of birth abroad.

A Consular report of birth abroad is akin to a birth certificate in that by making a report of birth abroad, an American Citizen is putting the United States government on notice that they have had a child and as per the the legal doctrine of jus sanguinis, the child may be eligible for US citizenship. Jus Sanguinis (a Latin term meaning “right of blood”) is a legal and social policy under which citizenship or nationality is not determined by the place a person was born, but through the presence of an ancestor who is a citizen or national of the state concerned. This policy stands in contrast to jus soli (a Latin term meaning “right of soil”). In the United States, jus soli and jus sanguinis are both methods of acquiring US citizenship. Therefore it is not necessary for a child to be born in the United States in order for that child to be born a US citizen. If the child is born abroad to at least one US citizen parent then the parent’s US citizenship will be transferred to the child.

There are restrictions on this doctrine for the purposes of US citizenship. In situations where the US citizen parent has not spent a statutorily required amount of time in the United States, the parent’s citizenship may fail to transmit to the child. In a case such as this where the US citizen parent wishes to obtain US citizenship for his or her child, it would be necessary to file an I-130 application on behalf of the child and obtain an immigrant visa for the child. Upon entry into the United States, the child would be vested with citizenship automatically by operation of law, because the permanent resident child of a US citizen will be vested with citizenship upon entry into the US on an immigrant visa.

In Thailand consular reports of birth abroad can be obtained at the US Embassy in Thailand or the US Consulate in Chiang Mai. In some instances, the US Embassy will require a paternity test in order to prove that the child is indeed that of the United States Citizen filing the report.  In some cases (particularly in a relationship with previous children present) this requirement may be waived.  In the cases in which a paternity test is requested, the couple has yet to finalize a legal marriage and has instead opted to perform a customary marriage due to the fact that they are seeking to obtain a K1 visa and by getting married it would preclude that type of visa application. Although, there are many situations in which a paternity test is requested.

Thanks for reading,

Feel free to email us at [email protected] for more information on this and other US Immigration issues.

(Please not: nothing contained herein should be used in place of personalized legal advice from an attorney. No attorney-client relationship is created between the reader and the author of this post.)

For more information on our website please see:

fiance visa Thailand

US visa lawyer Thailand

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20th May 2009

I was reading a piece written by the American Immigration Lawyers Association that could be useful for refugees in Thailand. With the political situation in Burma remaining abysmal, refugee issues will probably continue to be a problem in Thailand. The following is an original writing based upon information included in a piece written by AILA:

Recognition of Unregistered Customary Marriages in Refugee Camps

How do the United States Citizenship and Immigration Service Centers view marriages conducted in refugee camps that are not duly registered at a government office or  properly formalized under the laws of the country in which the marriage takes place? For instance, if a customary wedding ceremony occurs in a Burmese refugee camp in the Kingdom of Thailand and the wedding ceremony is properly conducted by the authorities in charge of the refugee camp, but the marriage is not registered, recorded, or recognized by the Thai government officers at the local Amphur, or District, Office which is generally a requirement of legal marriages occurring within the jursdiction of the Kingdom of Thailand, then that marriage will not be considered legal under Thai law. Will the United States Citizenship and Immigration Service recognize the marriage as valid for reasons pertaining to the I-730 refugee/asylum petition? If USCIS will recognize this type of marriage for immigration puposes, then is there any special kinds of evidence that must be submitted to prove up the bona fide nature of the marriage?

USCIS may consider marriages in circumstances described above as valid for immigration purposes, but there are some caveats. In the past, the United States Citizenship and Immigration Service has made the decision that the lack of legal perfection or registration of a marriage might not cause the marriage to become invalid for the purpose of immigration if the reason for the failure to register or perfect stems from the applicants flight from persecution.

If those seeking asylum as refugees in the United States were precluded from executing a valid marital perfection or registration of their religious, tribal, or customary wedding ceremony with the government at the time of the marriage and this preclusion was based upon a situation outside of their control; should this situation be associated with the underlying persecution of this collection of peoplet, then the marriages might be considered valid by USCIS for purposes relating to US immigration. Situations beyond the control of a refugee couple’s control that fit this category include (but may not be limited to): the inability to utilize government institutions in a host country because of one or more policies of the refugee camp, host government regulations that are discriminatory in nature, or any preclusion of marital recognition resulting from the flight from the refugee’s home country.

Much like Fiance Visas, CR1 visas, or other family based visa petitions, it is incumbent upon the couple to prove that the marriage is bona fide. Ways of proving the bona fides of the marriage include: evidence of the couple holding themselves out as married, evidence of the couple having lived together, offspring resulting from the marriage, and execution of a marriage ceremony.

For More Please See:

K1 visa Thailand

(Please not: Nothing in this article should be used in place of legal advice from a competent licensed attorney. No attorney client privilege, either express or implied, is created by reading this post.)

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16th May 2009

Conflict of Laws and the Uniting of American Families Act

A controversial and important issue with regard to US Immigration law and policy is the Uniting of American Families Act which would confer family immigration benefits upon same-sex couples. However, a question that many people ask me is: can I get a fiance or marriage visa for a same sex partner if we plan to marry, or have already executed a marriage, in a state that allows same sex marriage, domestic partnerships, or civil unions? At the time of this writing, the short answer to this question is: under current law, NO.

State recognized same-sex marriages and civil unions represents one of the biggest conflict of laws issue in America today. With regard to same-sex marriage issues within the USA, the issue has been raised as to whether a state that does not allow same sex marriage or does not recognize same sex marriage can grant a divorce of a same sex couple. This issue has not been fully explored and no policy or legal principle has been set in stone.

In the realm of US Immigration, the issue is more clear cut, but no less confusing for the layman. Under the Defense of Marriage Act, the US Congress made the following laws:

  1. No state (or other political subdivision within the United States) needs to treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.
  2. The United States federal government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.

This means that even though a same-sex marriage is properly executed in a state and recognized by a state government, it will not be recognized as such by the US government. American Immigration law is a body of jurisprudence that is wholly federal law, so even though a marriage is properly conducted and recognized by a state, the provisions of the Defense of Marriage Act precludes the Federal government, in the form of the United States Citizenship and Immigration Service (USCIS), from conferring immigration benefits if based upon the underlying marriage, or intention to marry (however legally binding same sex marriage at the state level may be).

The Uniting of American Families Act is a rather clever piece of legislation because it circumvents the Defense of Marriage Act (DOMA) by creating a whole new visa category under the US Immigration and Nationality Act. In its current form, the UAFA would allow “permanent partners,” the right to US Immigration benefits. This means that an alien permanent partner would be entitled to a visa like a CR-1 or IR-1 in which permanent residence in the USA could ultimately be secured.

It is the authors opinion that proving up the bona fides of the relationship when applying for a “permanent partner” visa will be more difficult than in different-sex relationship cases, because both USCIS and the consular post will be more heavily scrutizing these applications because they coule be used to defraud the government for US Immigration benefits. In a way, the permanent partner visa would be something akin to a hybrid visa like a K1 fiance visa. That being said, if and when the UAFA passes, it will be a major step toward equal rights of same sex bi-national couples.

(This information is intended for academic purposes only and should not be used to make legal deciions without consulting a licensed attorney in your jurisdiction. No attorney client privilege, express or implied, is created between the author and reader of this content.)

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15th May 2009

US Visas for Immediate Relatives related by Marriage

For those who wish to bring their family to the United States there are options under United States Immigration Law that allow immediate relatives of American Citizens entry into the United States as well as the possibility of permanent residence. At one time, the most common method of bringing a loved one to the United States was by marriage and petitioning for an immediate relative visa to the USA. The application for an Immediate Relative Visa was the I-130.

Congress then passed legislation creating two visa categories, where before there had been only one, for relatives related by marriage. Currently, there is what is known as a CR-1 visa which stands for Conditional Resident Visa. The conditionality of this visa means that the visa is conditioned upon the marriage lasting for two years. The other type of marriage visa is the IR-1 Visa. This visa is a Immediate Relative visa and there are no conditions implied with this visa.

As the legal situation evolved and the backlog of Immigration petitions increased, it became necessary to provide a more expedited visa for spouses of American Citizens. For this reason, legislation creating the K3 visa was enacted.

As recently as 2 months ago, this author advised clients that the K3 was an efficient and expeditious method of bringing a spouse to the USA in comparison to the CR-1 or IR-1 Visas. However, the United States Citizenship and Immigration Service (USCIS) has recently cleared a great deal of its backlog of cases and as a result the processing times for the I-129f petition (the Supplemental petition filed in order to obtain a K3 visa, those seeking a K1 visa will recognize this as the application form for that visa category) are nearly the same as the I-130 petition.

A K3 visa has many advantages and tactical uses, but the speed advantage of the K3 visa has recently been diminished by the faster processing time of the I-130 petitions. The I-130 is currently processing quickly, but the backlog could increase again later, although it does not seem likely. At its inception the K3 visa was being issued as a multiple entry non-immigrant visa with a validity of ten years. However, at the time of this writing, the K3 visa is being issued with a validity of two years. CR-1 Visas conditional period lasts for two years while IR-1 Visas, as mentioned previously, are unconditional

Deciding which category of US marriage visa to use is a decision that should be made after thoughtful study and consultation with the loved one who will be immigrating as well as an attorney should a couple find it necessary to retain one.

(Note: The information contained herein is meant for general use only and is not meant as a commentary on specific situations. This writing should not be used as an alternative for personalized legal advice from a competent attorney. No Lawyer-Client relationship is created between the reader and writer of this piece.)

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