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Integrity Legal

Archive for September, 2009

15th September 2009

Thailand Work Permit Extension

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For those present in Thailand on a Thai business visa, or another type of Thai visa (except for the F visa), it is incumbent upon the foreigner to obtain a Thai work permit if he or she wishes to take up employment in the Kingdom of Thailand. That being said, Thai work permits are generally only granted with a one year validity. There are exceptional instances where this is not the case. For example, BOI companies can get work permits for their employees that have a validity of two years. In any case, if a foreign national has a work permit in Thailand and wishes to work past the permit’s initial validity, he or she will need to obtain a Thai work permit extension.

A Thai work permit extension is somewhat similar to a Thai visa extension. In both cases, the original document is issued with a short term validity (usually one year, although work permits can be issued for three, six, nine, or twelve months at the individual officer’s discretion). After the permit expires the foreigner will no longer be legally entitled to work in the Kingdom.

In order to obtain a work permit extension, the foreign national must submit an extension application to the Thai Ministry of Labour. Depending upon the makeup and details of the Thai company, it may be possible to submit a work permit extension application to the One Stop Service Center. Upon application approval the work permit will be extended according to the duration approved by the officer.

At each application for extension, the underlying employment will be reexamined to ensure the employment falls in line with the relevant provisions of the Thai foreign business act, the US-Thai Treaty of Amity, and the Thai Civil and Commercial code. There are many protective measures in Thailand which restrict foreigners from certain occupations. Accordingly, non-Thais are not allowed to conduct certain types of activity. Therefore, one must be careful when deciding upon the duties to be undertaken in any type of employment in order to make sure that none of the activities in the work permit are restricted under Thai law. Since work permits must constantly be extended, there is always a possibility that one officer will consider a foreigner’s occupation to be in accordance with Thai law, while another officer will consider the same activity to be in contravention of applicable employment regulations.

Working in Thailand is a daunting proposition for some as the bureaucracy can seem overwhelming. However, it is always a good idea to make sure that one is legally employed in the Kingdom as unlawful employment could lead to civil, criminal, and immigration sanctions. It should also be noted that the Ministry of Labour has proposed an increase in work permit fees. When the fee increase will take effect is still unknown at the time of this writing.

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14th September 2009

In a previous blog posting we discussed the K2 child visa which is a derivative visa of the K1 fiance visa. The K2 visa is intended for the unmarried minor children of K1 visa applicants. Both visas have an initial validity of 90 days, but if the K1 visa holder adjusts status, then the K2 visa holder can “piggyback” their application for adjustment onto that of their parent and obtain permanent residence as both a derivative and a step-child.

K3 visas operate in a similar manner as the K1 visa. K3 visas are non-immigrant visas that allow for dual intent. This means that the entrant can have non-immigrant as well immigrant intent at the time of entry in the United States of America. For those with children, the K4 visa is one way of bringing a K3 visa holder’s unmarried minor children to the United States. Like the K2 visa, the K4 visa mirrors the benefits of its parent category. Therefore, if a K3 visa is issued with a validity of 2 years (which has become the common practice), then the K4 will likely be issued with the same validity period. The K4 visa is also a multiple entry visa just like the K3.

The K3 visa category was created at a time when it was taking nearly three years to process regular I-130 visa applications for foreign spouses. It was created with the idea of providing an expedited non-immigrant visa alternative so that bi-national families could be reunited quickly. As the processing time for the I-130 has decreased, so too has the need for the K3.

For those who travel to the United States on a K3 or K4 visa, eventually the issue of adjustment of status will arise. As the K3 and K4 are non-immigrant visas, the holders must apply for a “green card” before being allowed to remain in the USA. K4 beneficiaries can “piggyback” their application for adjustment on their K3 parent’s application.

As stated previously, for most people the K3 visa, and therefore its K4 counterpart, is generally not the most optimum visa because it takes longer to process when compared to the K1 and it does not confer Permanent Residence as the CR1 or IR1 visa does. However, the K3 has its strategic benefits because it can allow the couple the opportunity to have more control over their case’s adjudication, because the statute specifies that the interview forum is based upon the location of the underlying marriage.

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13th September 2009

An extremely common topic on this blogs involves the US K1 visa. The K1 visa is designed for fiances of American Citizens. This visa allows the foreign fiancee to travel to the United States of America for the express purpose of getting married and adjusting status to lawful  permanent resident. It is a “dual intent” visa meaning that it is non-immigrant, and therefore temporary, but converting to an Immigrant visa is statutorily allowed and in a way somewhat encouraged as K1 visa holders who leave the United States cannot reenter on the same K1 without first obtaining permission to do so, this permission is known as advance parole.

With this in mind, there is another visa related to the K1 fiance visa. This visa is referred to as the K2 visa. A K2 visa is designed for the children of the holder of a K1 visa. It is a “derivative visa,” in that the benefits conferred in the K2 visa are entirely dependent upon the K1 visa holder’s status. For example, if a Thai fiancee has a child and they are each applying for a K1 visa and K2 visa respectively, then if the K1 visa application is denied the K2 application will be summarily denied as well.

The K2 visa is also derivative in that it “piggy backs” on the K1 visa during the adjustment of status process. This means that if the K1 visa holder and the K2 visa holder enter the United States together, then they ought to adjust their status at the same time as the process is likely to be more streamlined.

Those holding a United States K2 visa must abide by the same conditions as one holding a K1 visa. The K2 visa is non-immigrant, but the dual intent doctrine applies (this allows for the visa holder to intend to adjust status upon entry). Further, the K2 is also a single entry visa, so the K2 holder would also need to obtain advance parole before leaving the United States. The derivative nature of the K2 creates a difficult situation if the K1 holder leaves the United States without obtaining advance parole. In this situation, the K2 holder would fall out of status the moment the K1 holder leaves and falls out of status. That being said, unlawful presence generally does not accrue against minor children so the child in the US unlawfully would likely not be barred from later reentering based upon a legal grounds of inadmissibility due to an overstay.

It should also be noted that the K2 beneficiary will need to accompany their parent to the K1 visa interview at the US Embassy in Bangkok. In all likelihood, the Consular officer will not wish to speak with the child, but they will want to physically see them.

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12th September 2009

Every year, many people from all over the world enter the United States of America and remain temporarily. As previously mentioned on this blog and on this website, there are many different types of non-immigrant visas for those who wish to go to the United States and remain for a short period of time or for a particular endeavor which has a definitive chronological endpoint.

United States Tourist visas are a prime example of a non-immigrant category visa that can grant the applicant a long duration of stay. This type of visa is meant for those entering the USA for recreational purposes who intend to leave after their vacation has ended. US Student visas are meant for those who are traveling to the United States to engage in a course of study. Finally American Exchange visitor visas are designed for those who wish to travel to America to live and/or work in a travel exchange program.

With any of the aforementioned visa categories the underlying visa’s validity has an end date. When the non-immigrant visa’s expiration date arrives, the applicant must either depart the United States or seek an extension. An US visa extension is similar to a Thai visa extension in that the applicant must apply for the extension while in the country and if granted, the applicant may remain for longer than the initial visa’s validity.

Those who do not depart or extend are considered in violation of their visa as they are overstaying its validity. In US Immigration circles, the alien is deemed to be in the United States “on overstay.” The longer a violator remains in the United States the higher the probability that the violator will be caught and either removed from the country or given the option to voluntarily depart.

After departing the United States due to overstay, the alien may be deemed inadmissible depending upon the duration of the overstay. Further, the duration of the bar on reentry depends upon how long the violator overstayed. The alien could be subjected to a 10 year bar if he remained in the US without lawful status for a long enough period of time.

In cases involving inadmissibility based upon overstay it may be possible to obtain a waiver of the inadmissibility. The applicant will need to file an I-601 waiver in order to clear up the overstay issue because if the waiver is granted the applicant will be allowed to reenter the country on either an immigrant or non-immigrant visa.

If the alien was removed from the United States because of an overstay, it may be necessary to file an I-212 application for permission to apply for reentry. That being said, either application is approved only at the discretion of the adjudicating officer at the United States Citizenship and Immigration Service.

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11th September 2009

On this website, there is a great deal of information regarding I-601 waivers and grounds of inadmissibility.  However, there are other situations where a foreign national can be barred from reentering the United States of America. For example, where an alien has been deported or removed from the United States, they are usually subject to a reentry ban for a statutorily specified period of time. If a foreign national has been previously deported or removed from the United States, then that person must submit an I-212 application to reapply for admission to the United States (also known as advance permission to reenter).

Deportation and removal are technically the same thing as the terms can be used interchangeably. That being said, forms of removal from the United States should be looked at on a kind of legal spectrum. What is commonly referred to as “Deportation” occurs after a finding by an Immigration Judge that a person should be removed from the United States of America. Another form of removal is known as “expedited removal” this commonly occurs at a port of entry in the United States where a Customs and Border Patrol (CBP) Officer finds that an applicant for admission is not fit for entry under one or more of the  provisions of the United States Immigration and Nationality Act. In many situations, a Border Patrol Officer will allow an applicant for admission to voluntarily withdraw their application and return to the point of origin. In this situation, which is akin to voluntary departure, the applicant’s US Immigration record is not adversely affected. However, it is within the officer’s discretion to place the alien in expedited deportation proceedings and thereby have them removed from the United States.

When an alien is removed from the United States through the use of expedited deportation, that alien is barred from reentering the United States without first receiving approval of the aforementioned statutorily mandated I-212 petition. These applications are somewhat similar to I-601 waivers in that the applicant must show something  like extreme hardship to a United States Citizen would occur if the application were denied and the applicant remained inadmissible.

Avoiding expedited deportation at a port of entry (and the consequences arising therefrom) is just another reason why visa seekers should apply for a visa which comports with their intent. One who is viewed as using a United States tourist visa improperly (hiding their intention to marry in the US and adjust status) could be placed in expedited deportation proceedings. If removed, then a great deal of time and resources would need to be expended to deal with the inadmissibility. Therefore, it is not only ethically incumbent upon all applicants to be honest in their immigration endeavors, but it is also practical because avoiding expedited deportation is a great benefit from a long term perspective.

For the above described reasons, those wishing to bring a Thai loved one to the United States for the purpose of marriage are encouraged to utilize a K1 visa for this purpose as a fiance visa is the appropriate travel document reflecting the couple’s true intentions. For those already married, a CR1 visa or a K 3 visa is preferable to a tourist visa if adjustment of status is the ultimate goal.

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10th September 2009

In an apparent effort to deal with a are number of foreign nationals using Thai Tourist visas for unintended purposes, the authorities at the Ministry of Foreign Affairs are instructing Consular Officials at Royal Thai Embassies and Consulates to heavily scrutinize applicants for tourist visas. This edict seems especially targeted at Consulates and Embassies in the Southeast Asia region.  Thaivisa.com is covering the story and quotes the edict directly:

“As there has been a number of visa applicants having entered Thailand via tourist visa and misused it to illegally seek employment during their stay and, upon its expiry, sought to re-apply their tourist visas at the Royal Thai Embassy or the Royal Thai Consulate in neighboring countries, requests for visa renewal by such applicants are subject to rejection as their applications are not based on tourism motive, but to continue their illegal employment, which is unlawful.

This is in accordance with the Immigration Act, B.B. 2552 which stipulates that visa applicants are required to clearly express their real purpose of visiting Thailand. Should the case be found that the applicant’s real intention were concealed, the application will be rejected.

Please be informed that the intention of applicants to repeatedly depart and re-enter Thailand via tourist visa issued by the Royal Thai Embassy or the Royal Thai Consulate in neighboring countries in recent years upon its expiry, is considered as concealment of real purpose of visiting Thailand. Thus their visas applications will be rejected.”

Unlike the Thai O visa and the Thai Business visa, the Thai Tourist visa is not designed for those who wish to work in the Kingdom.  One present on a tourist visa is not entitled to apply for a Thai work permit. Due to this restriction, many foreigners opt to stay in Thailand and work illegally or “off the books.” Although tolerated at one time, this practice is viewed with increasing animosity by Thai Immigration officials particularly since the world wide economic downturn.

Thailand’s policy regarding this practice is similar to Section 214b of the United States Immigration and Nationality Act. This statute creates the presumption that those entering the United States on a non-immigrant visa, like a US Tourist visa, are in fact intending immigrants. United States Consular officers often reject tourist visa applicants because they cannot demonstrate true “tourist intention,” meaning that they do not have sufficiently strong ties to a country outside of the US which would compel them to depart the United States.  Working in the United States on a tourist visa without work authorization is also considered to be a major violation of non-immigrant status (although not a ground of inadmissibility). Thailand seems like it is beginning to tighten up immigration protocols and coincidentally these measures are making the system resemble the US Immigration system.

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10th September 2009

The Bangkok Post is reporting that the World Bank has released a new report regarding the ease of doing business throughout the world. According to the report, Thailand achieved an overall rank of 12 when compared against other countries.

The Bangkok Post was quoted as saying:

“Thailand ranked relatively well in terms of property registration, trade, investor protection and ease in dealing with construction permits… Kirida Bhaopichitr, senior country economist for the World Bank in Bangkok, said Thailand benefited from improvements in the time and procedures needed to register a business and reduced bureaucracy in customs clearance.”

One of the major benefits to those doing business in the Kingdom of Thailand is the improved registration process for setting up a Thai company. At one time, the process of registering a Thai company was extremely time consuming and also required the seven shareholders.

Recently, the corporate laws have been changed to allow companies to have a minimum of three shareholders. If correctly executed, the company registration process can now be completed in as little as one day.

One slightly misleading aspect of this article concerns Thai property registration. Although it is true that Thai property can be registered relatively easily, the article does not go on to mention the fact that foreign nationals are virtually barred from owning land in the Kingdom of Thailand. In theory, it is possible for foreign nationals to own land in Thailand, but they must have the transaction signed off by the Minister of the Interior. Obtaining this signature is considered nearly impossible in some cases.

The Bangkok Post article also said, “Penelope Brook, acting vice-president for financial and private sector development at the World Bank, said Thailand could do more to improve areas such as transparency and investor protection.” There is some truth to this criticism as regulation of Thai investments is enforced less strenuously than in other countries. However, the Thai economy is often more transparent than many countries. That being said, one of the main reasons many people consider it non-transparent is due to the fact that the Thai method of doing business is very different from that of the West. Therefore, a result of these differences is that the economy is viewed as less transparent when the real issue is probably one of culture clash.

This article only dealt with the economic sphere and did not really deal with the political front. That being said, business and politics will always have an impact upon each other.

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8th September 2009

US Visa Thailand: The L1 Visa

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An L1 Visa is a travel document which is used to enter the United States of America for the express purpose of working in lawful L1 visa status. The visa categorized as L1 is a non-immigrant visa. The visa is valid for a short amount of time when compared to longer term United States visas, usually L1 visas are granted with a validity of 1-3 years.

L1 visas are statutorily intended to be used by the employees and executives of companies and business entities with an international presence. Generally, these entities have offices in countries abroad and in the United States. Some companies with no presence in the United States of America seek to set up a business presence in that jurisdiction while also maintaining a business presence in the home country. L1 visas were created for foreign employees to transfer to the company’s United States office after having been employed with the company’s foreign office for a minimum of at least one year prior to being approved for  L1 visa status. The office in the United States of America must be the direct owner of the US company (parent company relationship), subsidiary to the US company (child company relationship), or an affiliate of the US company (sister company relationship). The major factor in determining if two entities meet the L1 criteria has to do with a “commonality of shareholders.” This means that the two companies must be substantially intertwined from an ownership perspective.

There are two subcategories of the L1 visa. The L1A visa and the L1B visa.

L1A visas are reserved for for Managers and Executives.  The term “Manager” means one who oversees the day-to-day operations of the company or organization. Usually, Managers either supervise the endeavors of other subordinate managers or specialists, or else they oversee important tasks within the corporation. As a rule, a manager is one who has a great deal of authority with regard to routine operational issues.

Those employees who are considered “Executives” are tasked with providing leadership to the management of the company or of a significant division within the corporate hierarchy. Managers set company policy as well as long term goals and have a great deal of autonomy to make decisions regarding the direction of the company. They function with little or no scrutiny from supervisors.

L1B visas are granted to those with specialized knowledge of the company’s business or the inner workings of the company itself. The specialized knowledge denoted in this category is company specific, meaning that an L1B visa holder should be intimately aware of issues relevant to the overseas entity specifically.

A major concern of US immigration authorities is the, not unfounded, suspicion that some companies are changing their corporate structure in order to obtain visa benefits for their executives, managers, and specialists. This is of particular concern with regard to small companies. Readers should note that it is never advisable to make business decisions solely for the purpose of obtaining Immigration benefits as doing so could bring up issues of immigration fraud.

Note: The L1 visa is a dual intent visa, so even though the visa is for non-immigrants it is possible that the visa holder could eventually adjust status in the United States and obtain lawful permanent residence.

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7th September 2009

Under Section 214b of the Immigration and Nationality Act, a Consular officer can deny a non-immigrant visa (J1, F1, B1, B2) if they believe that the foreign applicant has not overcome the statutory presumption that they are actually an intending immigrant. In some cases, a consular officer may grant a tourist visa application, but the foreign national will be refused entry upon arrival in the United States of America.

How can a foreign national be granted a visa and still be denied entry to the United States? There is a common misconception that visa application approval creates a “right” to enter the United States of America. In fact, Customs and Border Patrol (CBP) Officers have the discretion to turn away alien nationals if they believe that there is a ground of excludability. If a CBP officer reasonably believes that an ostensible non-immigrant actually has immigrant intent, then they have the right to deny entry and it is further within the officer’s discretion to use expedited deportation to remove the prospective entrant.

The following paraphrases the INA:

According to section 212(a)(7)(A)(i) of the United States Immigration and Nationality Act (INA), any immigrant who, at the time of application for admission:

is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by the Immigration and Nationality Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the INS regulations, or whose visa has been issued without compliance with the provisions of the Immigration and Nationality Act is excludable [from the United States].

A waiver is available under INA §212(k) where the Attorney General is satisfied that the exclusion was not known to, and could not have been ascertained by the exercise of reasonable diligence by, the immigrant before the time of departure of the vessel or aircraft from the last port outside the United States and outside foreign contiguous territory or, in the case of an immigrant coming from foreign contiguous territory, before the time of the immigrant’s application for admission.

The powers of CBP officers described above illustrate the reason for seeking a proper visa rather than attempting to circumvent the Immigration rules. For example, there are some Americans who have a Thai loved one and they wish to bring them to the USA for the purpose of marriage and adjustment of status to lawful permanent residence. Generally a K1 visa (also known as a fiancee visa) would be the proper travel document for this purpose. However, some opt to pursue a US Tourist visa because the K1 visa has a processing time of approximately 6-7 months whereas a tourist visa generally takes a few weeks to acquire if the application is approved. Even if the visa application is approved, denial at the port of entry poses the risk of expedited deportation as well as the underlying monetary loss due to the fruitless visa application as well as travel expenses to get to the port of entry and be turned away. Removal from the United States can later be used to bar admission particularly if an Immigration officer finds that the entrant was intentionally misrepresenting themselves. In a situation such as this, the only way to remedy the inadmissibility could be the use of an I601 waiver.

Entry denial does not automatically lead to expedited deportation, the CBP officer has the discretion to allow the prospective entrant to withdraw their request for entry and leave at their own expense, but improper usage of non-immigrant visas does include the inherent risk of removal and those seeking entry to United States of America should bear this in mind when researching US Immigration issues.

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6th September 2009

Being denied for a visa to the United States of America is certainly not something that people researching the immigration process wish to think about. However, visa denials do occur and by understanding the reasons for denial it may allow prospective immigrants to make more informed decisions regarding their immigration strategy.

When it comes to American Family Immigration a common miscalculation involves applying for a US Tourist Visa on behalf of a foreign loved one. For example, if an American Citizen has a Thai fiancee and he attempts to assist in obtaining a US Tourist Visa for her, it will very likely result in a denial of the visa application. This is not due to some sort of malevolent feeling on the part of the United States Consular Officers, but it is rooted in American Immigration law.

It is probably best to simple quote the US Department of State website:

“Section 214(b) is part of the Immigration and Nationality Act (INA). It states:

‘Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status…’

To qualify for a visitor or student visa, an applicant must meet the requirements of sections 101(a)(15)(B) or (F) of the INA respectively. Failure to do so will result in a refusal of a visa under INA 214(b). The most frequent basis for such a refusal concerns the requirement that the prospective visitor or student possess a residence abroad he/she has no intention of abandoning. Applicants prove the existence of such residence by demonstrating that they have ties abroad that would compel them to leave the U.S. at the end of the temporary stay. The law places this burden of proof on the applicant.”

Overcoming the presumption of immigrant intent has always been a somewhat major obstacle, but visa denials under this section of the law became more prevalent after the tragedy of September 11, 2001. After 9/11, there were some changes made in the way that non-immigrant visas were processed. A particularly critical change was the requirement that the applicant for a United States tourist visa be interviewed in person. This requirement, combined with increased scrutiny and heightened security concerns lead to more Tourist visa denials. In many cases, the denials were based upon section 214 (b) because the applicants failed to show that they were going to return to their home country, or, at the very least, leave the USA.

Where the foreign applicant is a loved one of a US Citizen, particularly where the Citizen primarily resides in the USA, it is unlikely that the tourist visa application will be approved unless that applicant can show sufficiently “strong ties,” to their home country. However, to forestall needlessly wasting of time and resources, it may be wise for a couple to look into the prospect of submitting a K1 visa application or seek to obtain a K3 visa. The K1 visa is a travel document which allows a temporary stay in the United States, but leaves room under the Doctrine of Dual Intent to allow for the visa holder to adjust status to US permanent residence.

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