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Archive for July, 2009
21st July 2009
What Rights and Privileges Come With a Business Visa to Thailand?
Posted by : admin
There are certain misunderstood aspects of the Thailand Business Visa that may need to be cleared up in order to properly understand how Thai Immigration views those non-Thai nationals in possession of a Thailand B visa.
First, a Thai business visa should not be inferred to impart the right to work in Thailand. Those holding Thai B Visas (Business), must still obtain a Thai work permit before they will be allowed to enjoy employment rights. Even then, Thai law, which in this respect is similar to United States Immigration law, restricts work authorization to a specified geographic location, namely the official address of the employer. That being said, it may be possible to get a second employer stamped into one’s Thai work permit and thereby allow employment with multiple organizations by officially authorizing such employment.
One very difficult concept for many to grasp is the idea that a visa does not confer the “right” to enter the country. This causes some confusion particularly with regard to United States Immigration. A USA visa simply gives the bearer the right to seek permission to enter the United States of America.
The Kingdom of Thailand views visas and travel documents in a similar light. In fact, it may be possible to be turned away at a port of entry in Thailand even where the prospective entrant has what is otherwise considered to be a valid visa. This issue became of acute concern nearly 5 years ago when operators began springing up throughout Thailand who offered to send one’s passport out of the Kingdom and have it sent back in with a new valid visa issued from an Embassy or Consulate abroad. In this situation, even though the visas were issued legally, the Thailand Immigration authorities at the port of entry began not only turning prospective entrants away, but also nullifying visas issued to someone who was in Thailand when the visa was issued at a diplomatic post abroad.
Another common mistake regarding Thai Business visas involves the definition of “multiple entry.” Specifically, does a one year multiple entry Thai visa imply that the bearer may remain in Thailand uninterrupted without being forced to leave? Put simply: No. A Multiple entry visa holder must leave at least every 90 days in order to remain in legal immigration status in the Kingdom. That being said, the multiple entry visa is commonly confused with the Thai visa extension. The extension allows the bearer to remain in Thailand for up to one year without being compelled to depart every 90 days. The downside of the extension is the fact that one needs to obtain a reentry permit in order to leave the country. The multiple entry visa allows the person holding it to leave the Kingdom and return on the same visa so long as it remains valid. Hence the name, “multiple entry.”
For further information, Please see the US-Thai Treaty of Amity as certain Immigration rights are created under this bilateral agreement.
(This is not legal advice. For such advice contact an attorney. No lawyer-client relationship should be assumed to exist between author and reader.)
20th July 2009
The Re-Uniting American Families Act
Posted by : admin
It would appear that although repeal of the Defense of Marriage Act (DOMA) may not be happening anytime during the current legislative session. For same sex partners of United States Citizens, there may be hope that United States Federal Immigration Law could be modified in order to allow for United States immigration benefits for Lesbian, Gay, Bi-sexual, and Trans-gender (LGBT) Couples.
Under the current laws on the books, embodied in the United States Immigration and Nationality Act (INA), Bi-national LGBT couples are precluded from obtaining immigration benefits based upon their relationship. Therefore, the same sex partner of an American Citizen cannot obtain United States Lawful Permanent Resident (Green card) status based upon their relationship in the same way that foreign spouse or fiance could. It would appear that this situation may soon change.
According to CBS News:
“[M]ore than 100 lawmakers in the House and about 20 in the Senate have signed onto bills that would add the United States to the 19 countries that already recognize same-sex couples for immigration purposes.”
Comprehensive Immigration Reform (CIR) is currently being considered in both the United States House of Representatives and the United States Senate. Many lawmakers are hoping to amend the currently pending bills with proposed amendments to correct the immigration injustice being perpetrated against bi-national same-sex couples. However, the proposed amendments to this legislation do not come without challengers, further from CBS News:
“The long-standing fight over the country’s estimated 36,000 same sex couples of two nationalities is a small but emotional part of the debate over immigration reform. But including same-sex couples in the mix could make it harder to pass an immigration overhaul. A key ally in past immigration fights, the U.S. Conference of Catholic Bishops, said it would not support a measure that has a same-sex provision.”
United States Representative Mike Honda is a supporter of the legislation aimed at ameliorating same-sex discrepancies in Immigration law. The so-called Re-Uniting American Families Act is similar to previous legislation known as the Uniting American Families Act (UAFA). In both proposals, an addition of the term “permanent partner,” will be made to the United States INA which will allow for a circumvention of the restrictions placed upon same sex couples under current federal law (DOMA).
President Obama has signaled his wish that some sort of US Immigration category be created that would allow same-sex couples to have benefits similar to different sex couples. There are questions among same-sex civil rights groups regarding just how much the President really supports their cause as the outcome of the same-sex immigration debate remains in doubt.
(This post is not legal advice. Contact a Licensed professional for legal advice. No lawyer-client relationship is created between the writer and any reader of this article.)
19th July 2009
K-1 Visa Process: USCIS Service Center Jurisdiction
Posted by : admin
For those seeking to submit a visa application the first thing to think about is which office of the United States Citizenship and Immigration Service (USCIS) will take jurisdiction over adjudicating the petition. In instances involving an overseas filing of an Immigrant petition (sometimes known as Direct Consular Filing), this information is not useful, but for those living in the United States and filing non-immigrant spouse or fiance visa petitions, the following information may be helpful.
The K-1 visa application (the I-129f) should be filed with the office having jurisdiction over the petitioner’s home state. There are currently two USCIS service centers adjudicating I-129f petitions (the K-3 visa application requires a supplemental I-129f petition after submission of an initial I-130 petition).
USICS Service Center: California
The California Service Center currently adjudicates petitions from the following US states and territories:
Alaska, Arizona, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, or Wyoming. (As with all information concerning USCIS jurisdictional matters, the above list is subject to change.)
USICS Service Center: Vermont
The Vermont Service Center currently adjudicates petitions from the following US states and territories:
Alabama, Arkansas, Connecticut, Delaware, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, West Virginia and the District of Columbia. (As with all information concerning USCIS jurisdictional matters, the above list is subject to change.)
(Some people confuse the Vermont Service Center with the National Visa Center in New Hampshire. The National Visa Center is not an organ of USCIS, but is a visa application processing center under the administrative jurisdiction of the United States Department of State.)
For those American Citizens who are resident in the Kingdom of Thailand, it may be possible to file an Immigrant Visa application with the USCIS office in Bangkok, Thailand. However, unlike a USCIS Service Center, the Bangkok District Office does not generally adjudicate K-1 visa applications. Further, the USCIS Service Centers in California and Vermont are not the correct locations to submit Immigrant Visa (I-130) applications for spouses of United States Citizens who are resident in the United States. Therefore, one should do careful research before submitting any visa application in order to be sure that an application will not be rejected based upon lack of proper jurisdiction.
(Do not use this information as a substitute for competent legal advice. No attorney-client relationship should be inferred to have formed between author and reader.)
18th July 2009
The United States Citizenship and Immigration Service (USCIS)
Posted by : admin
For those seeking to obtain a USA Visa from Thailand, it is almost inevitable that the United States Citizenship and Immigration Service (USCIS) will be involved in the process. That being said, depending upon the visa being sought, USCIS may play less of a direct role in the initial process.
The United States Citizenship and Immigration Service has had an interesting recent history. Currently, the office is under the administrative jurisdiction of the Department of Homeland Security. USCIS former acronym was INS which stood for the Immigration and Naturalization Service. In the aftermath of September 11, 2001 it was decided that the services provided by INS could be better facilitated under the aegis of the Department of Homeland Security and INS was folded into that agency. For a time, the United States Citizenship and Immigration Service was known simply as the Bureau of Citizenship and Immigration Services (BCIS), but the acronym and name was officially changed to the current form on October 13, 2004.
For Immigrant visas that confer either conditional or unconditional lawful permanent residence (Greencard) to an alien upon entry, USCIS will play a major role in adjudicating the I-130 visa application. In certain instances where the United States Citizen has been living in the Kingdom of Thailand for a specified period of time, it may be possible to locally file an I-130 application at the USCIS office in Bangkok. This procedure is sometimes mistakenly called “Direct Consular Filing,” but, in point of fact, this appellation is misapplied. A direct consular filing can only occur at a consular section when a United States consular officer at a US Embassy or Consulate General accepts a visa application that has not first been adjudicated by USCIS either in the United States or at an office abroad. In Thailand, it is very rare for a consular officer at the US Embassy in Bangkok or the Consulate General in Chiang Mai to accept a visa application directly because there is a large local USCIS office in Bangkok.
For those making a K-1 visa application, it will be necessary to file the application at a USCIS service Center in the United States. The United States Citizen petitioner’s residence will determine what service center should be used when submitting the initial application. For those unfamiliar with the K-1 visa, it is a fiance visa designed to allow an American’s foreign fiance to come to the USA for the purpose of marriage.
For those making a K-3 visa application, the I-129f application must be sent to a USCIS service center and not the Chicago Lockbox. The K-3 visa was designed as an expedited marriage visa for spouses of American Citizens.
F-1 visa applications and J-1 visa applications are generally submitted directly to the United States Embassy with jurisdiction over the applicant’s place of residence. US Tourist Visa applications are also submitted directly to the US Embassy.
(This is intended for educational purposes only, it is not legal advice. For Legal advice about Immigration law, contact a visa lawyer. No attorney client relationship is created between the author and any reader of this piece.)
17th July 2009
What is a United States “V” Visa?
Posted by : admin
Yesterday I received an inquiry regarding the possibility of obtaining a United States V Visa. It had been a while since I had read anything about that category so I decided to do some quick research and share a few things regarding the US V Visa.
The Immigration Category known as the V visa was created under the Legal Immigration Family Equity Act of 2000. In the provisions of this legislation, spouses and minor children (not married and under the age of twenty-one) of United States Lawful Permanent Residents (green card holders) could receive a temporary visa in order to join their family member in the United States, while the immigrant visa process is pending.
As a rule, spouses and children of American permanent residents must wait for a comparatively longer period of time to get a visa than the spouse of a United States Citizen or a child (or step-child) of a United States Citizen. That being said, lawful permanent residents cannot avail themselves of the comparative benefits of a fiance visa, also known as a K-1 visa, because that visa category is only available to those betrothed to an American Citizen.
Currently, the V visa is only available to spouses and children of Lawful Permanent Residents who filed their visa application on or before December 21, 2000, as a result of this provision, fewer and fewer V visas are being issued as the pending applications are adjudicated.
The V visa is somewhat similar to the K-3 visa because they were statutorily designed with the intention of allowing spouses and children to travel to the United States of America while their immigrant visa was processing through the United States Citizenship and Immigration Service (USCIS). A major difference between these two visa categories is the fact that the K-3 is still currently obtainable for the spouse of any United States Citizen and has not been effectively “phased out,” by statute. Thai being said, those that enter the United States on a K-3 visa after the approval of a K-3 application still must go through the adjustment of status process or return to Thailand in order to go through consular processing and visa interview at the US Embassy in Bangkok, Thailand because, like the V visa, the K-3 is a two year non-immigrant multiple entry visa and therefore is only issued for a validity of limited duration.
(This post is not legal advice and should not be construed as such. Please contact an Immigration lawyer for individualized legal advice. No Attorney-Client relationship is formed by reading this piece.)
17th July 2009
K-3, CR-1, and IR-1 Visa Thailand: Filing for a Step-Child
Posted by : admin
There are many family relationships that can be used as a basis for obtaining a US visa. In cases where a betrothed couple wishes to get married and live in America there is a US fiance visa, also known as a K-1 visa. For an expedited marriage visa, some people opt utilize a K-3 visa. Further, in cases where a couple wishes to have some discretion about where the visa application will be adjudicated a K-3 visa could theoretically be used to “forum shop.” However, the classic marriage visa are the immigrant spouse visas discussed further below. Of particular interest to those applying for an immigrant spouse visa is the fact that a step-child can also receive an immigrant visa based upon the child’s relationship to the United States Citizen and foreign beneficiary.
In cases where a couple gets married overseas and wishes to immigrate to the USA, there are immigrant spouse visas known as CR-1 and IR-1 visas. These visas require the filing and approval of an I-130 immigrant visa application. In many cases, the foreign spouse will have children. Therefore, the question arises: what is to be done with the step children? In most cases, a step child will be able to travel to the United States in order to take up residency, but it is possible that a step child will be precluded from immediately traveling to the United States.
For step children over the age of twenty-one, an visa petition will have a lower priority than for a step child under 21 years of age. An Immediate question that usually follows up this statement: what about a child who turns 21 while the visa application is pending? Under current Immigration law the step child who was under 21 at the time of USCIS approval will have their status preserved until visa issuance, so turning 21 after petition approval will not cause the applicant to fall into a lower preference category.
Another issue with regard to step-child petitions involves the age of the step child at the time of the marriage this fact can have a crucial impact upon the step-child’s status and possibly preclude the step-child from obtaining an immigrant visa in an expedited manner. In complicated cases, it may be best to consult an Immigration lawyer, but for those who wish to deal with the matter on their own, the website of the United States Citizenship and Immigration Service can be very helpful.
In cases involving K-4 visas, which are derivative of K-3 visas for step-children, some of the above analysis is correct, but due to the different nature of the K-3 application, the laws and regulations could be different. Where possible, it is usually better to obtain an Immigrant visa because the beneficiary obtains permanent residence (Green Card) upon entry into the USA.
(This article is not legal advcie. This article does not create any type of Attorney/Client relationship.)
15th July 2009
US Visa Thailand: Reflections Regarding the 100% Guarantee
Posted by : admin
One of the most prevalent advertising incentives utilized by people claiming to be a “visa agent,” “immigration consultant,” or “lawyer,” is the 100 percent guarantee that a visa will be issued. A variation on this scheme is also the 100% money back guarantee if the visa is not obtained.
The most common visa category in which people run into these “guarantees” is the K-1 visa. When doing research regarding US Immigration Lawyers in Thailand, prospective petitioners and beneficiaries come across something that is seemingly too good to be true: a no-lose situation. The “agent,” does all of the work and should the visa be denied the fee will be refunded.
Sounds great right? Except for the fact that it really is too good to be true. First, no one can guarantee a visa will be obtained. Let me make this clear: NO ONE CAN GUARANTEE THAT A VISA WILL BE OBTAINED. Much like any other field of law, US Immigration has success and failure and there is a common incorrect belief that a marital, or intended marital, relationship with an American citizen gives the Thai spouse or fiancee the “right” to a marriage or fiance visa. Although an American Citizen does have the right to marry or date whomever they please, this relationship does not, in itself, create a right to United States Immigration benefits. Therefore, no visa guarantee can honestly be made regarding United States Immigration and visa regulations or how United States consular officers and USCIS adjudicators will interpret those regulations.
I have seen many cases in Thailand where an “agent” or “lawyer,” provided a 100% money back guarantee, failed to obtain a visa for his client, and did not subsequently provide a refund.
In the same vein as the 100% Guarantee is the notion that some “agents” have a special relationship with the US Embassy in Bangkok with regard to visa matters. In reality, no one has any type of special pull with Embassy and consular officials. In fact the US Embassy will occasionally comment regarding this phenomenon, if for no other reason than to explain that no person or organization has any special influence regarding Immigration or visa obtainment matters.
Although it is true that currently the US Embassy in Thailand will allow licensed American attorneys to present follow up documentation if a US visa is denied based upon section 221g of the US Immigration and Nationality Act, Embassy policy dictates that only the visa applicant may be present for the visa interview. Further, simply being able to present follow up documentation does not connote any sort of “special relationship,” but merely a policy decision.
(This posting doesn’t constitute legal advice. No attorney-client relationship should be inferred from reading this posting.)
14th July 2009
Laws and Rules Regarding Extraterritoriality
Posted by : admin
When dealing with issues involving US Immigration or Immigration to Thailand, one will often run into situations where the legal systems of two sovereign states come into play. Further, dealing with diplomatic missions in the form of Embassies, Consulates, and Charges D’Affairs the concepts of jurisdiction, sovereignty, and extraterritoriality come to the forefront. In this post we will take a quick look at extraterritoriality and how it applies to United States Embassies and Consulates in Thailand and abroad.
What is Extraterritoriality? Extraterritoriality is a legal situation in which one is exempted from the jurisdiction of the law of the locality where one is situated. Generally, this situation results from the commencement or continuation of diplomatic discussions. In certain instances, extraterritoriality can be applicable to tangible locations such as non-native military installations and in modern times: the United Nations compound in New York City.
There is a common misconception that Embassies and Consulates have extraterritoriality. As anecdotal evidence of this misconception, people will often say things like, “the US Embassy sits upon United States soil.” For the most part, this is not the case as extraterritoriality is not conferred upon an Embassy or Consulate, but in some situations extraterritoriality may be created by Treaty. That being said, members of diplomatic legations (Ambassadors, Representatives, Consuls, Vice Consuls, Deputy Ambassadors, and Charges D’Affaires) may be accorded extraterritorial status within the foreign state to which they have been accredited. Also, the property of such representatives may have extraterritorial status. For example, an official diplomatic pouch will not be subject to search and seizure by a country other than the country with ownership of the pouch.
These legal rights were created in order to allow diplomatic agents to have the ability to freely conduct correspondence with their home nation. Also, these privileges are generally conferred as a courtesy from one sovereign to another. As a practical matter, “diplomatic immunity” puts the diplomat outside of local law. However, these privileges are usually extended reciprocally and therefore neither state is being accorded inequitable privileges.
At one time, the Kingdom of Thailand conferred extraterritorial rights upon foreigners in the country. As time went by, these rights were viewed with more resentment by Thai people. After World War II, the Thai government began renegotiating treaties with foreign governments in an effort to do away with these disproportionate extraterritorial concessions. Today, Thailand maintains normal diplomatic relations with most countries around the world.
(This is not legal advice. For such advice contact an attorney. No Attorney-Client relationship is formed between the reader and writer of this posting.)
13th July 2009
US Visa Denial & Waiver: Are State Department Statistics Reliable?
Posted by : admin
There is some confusion regarding the American State Department’s estimates regarding visa denials from around the world. There are some who are under the mistaken impression that the State Department’s numbers are the definitive source for information regarding waivers of inadmissibility. In fact, any numbers published by the United States Department of State regarding I-601 waivers should be taken with a grain of salt because the American Department of State is not the agency tasked with handling the adjudication of I-601 waiver applications after the a United States Consular Officer at an Embassy or Consulate General has made a finding that a legal ground of inadmissibility exists in a particular Immigration case.
The United States Citizenship and Immigration Service (USCIS) has the authority to grant waivers of inadmissibility under United States Immigration law. Therefore, USCIS’s internal statistics would be the proper government source to consult regarding the number waivers of inadmissibility applied for and ultimately granted. That being said, USCIS does not keep categorical statistics according to the Agenda of the USCIS National Stakeholder Meeting on January 27, 2009:
“Although we track the total number of Forms I-601 processed, USCIS International Operations does not have a system to track the specific grounds of inadmissibility that applicants seek to waive.”
The document that is causing the confusion regarding visa denials can be found at the following url. The first major cause of confusion in this document is the seemingly small number of findings of legal inadmissibility under section 212 (a)(2)(D)(i) for engaging in acts of prostitution or deriving profits from activities that are presumed to be prostitution. According to the table there were only 2 non-immigrant visa waivers granted in 2008 under section 212 (a)(2)(D)(i) of the United States Immigration and Nationality Act (INA). I find this number difficult to believe as this author has recently discussed the prostitution ground of legal inadmissibility with two highly experienced United States Immigration attorneys and between the two of them, they had applied for and obtained more than 2 non-immigrant visa waivers in 2008. Further, I believe it is highly likely that other prospective US Immigrants and non-immigrants were granted waivers of this ground of inadmissibility because I doubt that only two United States attorneys handled all of the waivers granted under this section of the INA in 2008; particularly if one takes into account not only other immigration attorneys, but I-601 waiver applications filed pro se as well.
For more on US Visas Please See: K-1 Visa or K-3 Visa
(This document is not intended as a source of legal advice, but for educational purposes. For legal advice contact an Attorney. No Lawyer-Client relationship should be deemed to exist between the writer and reader of this blog post.)
12th July 2009
Thai Nationality: Can Thai Men Lose Their Thai Citizenship?
Posted by : admin
I was speaking with a Thai-British Dual national recently who only just obtained documentation reflecting his Thai nationality. There are some interesting misconceptions regarding Thai Nationality. One of the first major misconceptions is the idea that one is not Thai until they obtain a Thai Identification Card or a Thai passport. In point of fact, if one is born Thai, then regardless of whether they obtained a Thai ID card, they are Thai from birth.
There is also a mistaken belief that if one is born to a Thai mother outside of Thailand, then the child is not a Thai national. Again, this is not the case. Any person born to a Thai mother is Thai. Another very interesting aspect of Thai law regarding nationality is the idea that any person born of two immigrants in Thailand is Thai. This provision should not be misconstrued, under Thai law an immigrant is one who has what we call Thai permanent residence. Therefore, a child of two Non-Immigrant visa holders (Thai B Visa, Thai O Visa, Thai ED Visa, etc.) will not be born a Thai national. However, in the past what is now known as Thai permanent residence was given out quite frequently to those entering the Kingdom and as a result, the offspring of those immigrants were given Thai nationality from birth.
After reading through the provisions of the Thai nationality act, it is clear that specific legal mechanisms were created for Thai women to renounce their Thai Citizenship. Women could renounce their citizenship if they were taking the citizenship of their foreign husband (other provisions in the act were created to allow Thai citizenship to be reclaimed after renunciation should the Thai woman deem it necessary). However, there are no provisions providing for male renunciation of Thai citizenship. This begs the question: Can a Thai-born man renounce his Thai Citizenship? The answer appears to be: No. The policy reason behind this bar on renunciation probably stems from the fact that male Thai nationals are subject to conscription for military service. Therefore, the bar on renouncing Thai citizenship seeks to limit the ability of those who may wish to avoid military service, but it creates some confusing scenarios where a Thai man seeks to obtain another nationality. There are certain countries that require renunciation of one’s prior citizenship before naturalization, but where the Thais do not recognize the renunciation it creates a situation in which a person is unable to renounce his citizenship. This then creates a precarious legal predicament because if one is required to renounce previous citizenship, but cannot do so, does this bar them from taking another citizenship?
(None of this post should be considered legal advice. For such advice contact an Attorney. No relationship with an attorney is formed by reading this post.)
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