Integrity Legal

For those entering the United States of America on a non-immigrant visa, there is generally a requirement that the entrant have non-immigrant intent. This means that the person entering the country must intend to simply remain on a temporary basis and not have the intention to reside in the United States permanently. United States Visas that require non-immigrant intent include the US Tourist Visa, the F1 Student Visa, and the J1 Exchange Visitor Visa. For each of these categories, the prospective entrant could be denied access to the United States either by visa denial or entry denial at the United States Embassy in Bangkok or the port of entry in the USA. Due to the risk of visa denial or entry denial, it is always recommended to apply for a visa that comports to the applicant’s true intentions.

Conversely, it may be unwise to apply for an immigrant visa if the parties true intentions do not actually involve residing in the United States. In this situation, the issue of intent is somewhat more fluid, but it is still advisable that the parties have a bona fide intention to reside in the USA.

With both of these issues in mind, there is something of a “middle path,” with regard to United States Immigration. This middle path is the doctrine of dual intent. This doctrine is a legal concept that deals with the fact that there are some cases where a US Visa must permit foreign nationals to be present temporarily in the United States of America in legal status and still have immigrant intent. The doctrine was promulgated due to practical necessity as there are situations in which aliens come to live and work in the USA on temporary visas, but they themselves wish to eventually obtain lawful permanent residence. United States Immigration authorities and experts have come to recognize that there are certain situations where this seemingly paradoxical situation must be accepted and, to a certain extent, encouraged.

An example of a commonly sought visa category in Thailand, is the K1 fiance visa. The K1 is a non-immigrant visa, but the alien entering the US on this visa is generally doing so in order to: reunite with their fiance(e), marry, and adjust status to permanent residence.  Therefore, the K1 visa is essentially a dual intent visa as it only allows for a 30 day temporary stay, but provides the opportunity to acquire US permanent residence.

To some extent, the K3 visa is a dual intent travel document as it is technically a non-immigrant visa, but once in the United States, the visa holder must eventually adjust status as the K3 does not confer lawful permanent residence. Usage of the K3 has declined in recent years as visa processing times have decreased for immigrant visas and increased slightly for K3 visas.

L1 visas as well as H1-B work visas are further examples of temporary visas which allow for dual intent. Although, these categories are employment based visas.

Tags: Dual Intent Doctrine, K1 Visa, K1 Visa Thailand, K3 Visa, us embassy bangkok, US Immigration Law, US Tourist Visa, US Visa Thailand
Posted in Adjustment of Status, F1 Visa Thailand, Fiance Visa Thailand, J1 Visa Thailand, K-3 Visa Thailand, K1 Visa Thailand, L1 Visa, Legal Opinion, us embassy bangkok, US Tourist Visa, US Visa and Immigration, US Visa Thailand | 2 Comments »

This blog has often compared and contrasted the difference between the Immigration procedures for obtainment of a US Visa and a Thai Visa. To further compare the two systems, this post will provide a brief overview of the financial requirements one must meet in order to obtain a visa to Thailand or the United States of America.

In order to sponsor a traveler to the United States, one must first decipher the type of visa the traveler will be using. In the case of Non-Immigrant visas (F1 student visa, J1 exchange visa, or B1 Business Visa) the applicant must be able to prove that they or their sponsor will be able to pay the expenses related to the trip. In the case of F1 and J1 visas, the applicant must show that they will also fully pay for their educational endeavors or their exchange program. In some cases, the J1 visitor must reimburse the public education system where they stay in order to obtain the J1 visa.

In the case of United States Immigrant IR1 and CR1 visas for family members from Thailand, the American Citizen must show that they meet the income or financial requirements in order to act as sponsor for their loved one. The basic concern of the Consular officer revolves around the notion that the Immigrant could become a “public charge,” if the American Citizen does not have the resources to pay for the foreign spouse. An I-864 affidavit of support is used to assist in determining if the American is capable of sponsorship.

The K1 visa is a combination of the non-immigrant and immigrant visas. That being said, an affidavit of support must be filled out by the American Citizen. The difference between the I-134 and I-864 is the fact that the I-864 is more legally binding with regard to the sponsor. If the foreign entrant ever becomes a ward of the state, then the sponsor could be forced to reimburse the American government for the expenses the foreign national incurs. The K3 visa, although a marriage visa, is technically a non-immigrant visa so the American Citizen must simply submit an I-134 affidavit of support.

In Thailand, there are certain Thai visa categories which require that the applicant show that they have some sort of financial safety net. Visas such as the Thai retirement visa and the Thailand O visa (based upon marriage), require the visa holder to continually prove that they either meet a prescribed minimum monthly income or have a certain amount of money in a Thai bank account.

For those applying for Thai visas outside of Thailand, certain consulates have differing financial requirements depending upon the visa category. Therefore, one wishing to obtain a Thai Business Visa may be required to show a minimum bank balance. The minimum financial requirement may vary from post to post.

The United States Embassy in Thailand, diligently scrutinizes the financial resources of those applicants wishing to obtain an American visa. Many people believe that there is some sort of magic numerical amount of money that if shown in a bank account will guarantee visa application approval. In reality, the Embassy looks at the “whole picture” when making decisions on US tourist visas and often simply having a large bank balance is not enough to obtain a tourist visa. Further, in cases where an American boyfriend tranfers a large amount of money into a Thai applicant’s bank account in an effort to “beef up” the applicant’s credentials, the Embassy can tell that the bank balance is artificially inflated and will likely deny the application. It is never wise to manufacture evidence in order to obtain a United States visa on behalf of another.

Tags: Affidavit of Support, B2 Visa, CR1 Visa, F1 Visa, Financial Requirement Immigration, I-134, I-864, I134, I864, Immigrant Visa, IR1 Visa, J1 visa, K1 Visa, K3 Visa, Thai Visa, Thailand Immigration, Thailand Visa, US Tourist Visa, US Visa Thailand
Posted in F1 Visa Thailand, Fiance Visa Thailand, J1 Visa Thailand, K-3 Visa Thailand, K1 Visa Thailand, Thailand Visa, US Consulate Chiang Mai, us embassy bangkok, US Embassy Thailand, US Visa and Immigration, US Visa Thailand | No Comments »

In a recent announcement from the United States Citizenship and Immigration Service (USCIS), Deferred Action will be granted to those widows and widowers of United States Citizens who die before the two year anniversary of the foreign spouse’s arrival in the United States of America. To quote the AILA press release:

“U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano, on June 9, 2009, announced that DHS would grant deferred action relief to surviving spouses of U.S. citizens who died before the second anniversary of their marriage. Based on the Secretary’s decision, U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend adjudication of visa petitions and adjustment applications filed for widow(er)s where the sole reason for an adverse decision from USCIS would be the death of a U.S. citizen spouse prior to the second anniversary of their marriage.”

The first question that probably comes to the mind of the reader is:  ok, so what does “deferred action” mean in practice? To further quote the USCIS press release:

“Deferred action is an exercise of prosecutorial discretion not to pursue removal from the United States of a particular foreigner for a specific period. Deferred action is not intended to be a permanent remedy for this situation; rather it is a temporary discretionary solution.”

In cases involving United States Immigrant visas, there are two types of immigrant visa categories for spouses of American Citizens. There is the Conditional Resident Visa (CR1) and the Immediate Relative Visa (IR1). The Conditional Resident Visa is meant for spouses of United States Citizens who have been married for less than two years. IR-1 visas are meant for those who have been married for more than 2 years. When a Permanent Resident is in CR-1 status, then they must apply for a lift of conditions before they change status to IR-1. If residence is conditional, then the immigrant must leave the USA  if the lift of conditionality is not filed and approved. In many cases, only the US Citizen spouse can file to have the conditions lifted. Therefore, if the US Citizen spouse dies before the lift of conditions is filed and approved then the Conditional Permanent Resident could fall out of status as soon as 2 years is up. Deferred action places the Resident in a kind of limbo in which they can lawfully remain in the USA, but are not moved in IR-1 status. The press release goes further and states:

“Aliens with deferred action may apply for an Employment Authorization Document (EAD) if they can establish an economic necessity for employment.”

Therefore, the alien in the US in this situation could work and reside without fear of being removed, but the situation would seem to be simply a temporary stopgap measure and it does not appear that this would be a viable long term legal option.

Bear in mind that this issue only deals with US spousal and fiancee visas after adjustment of status. Therefore, the above analysis is not relevant to the K1 visa or the K3 visa per se, although it would be relevant if the foreign fiancee or spouse adjusts to CR1 status.

Tags: American Visa, CR-1 Visa, CR1 Visa, Deferred Action, K1 Visa, K1 Visa Thailand, US Immigration, US Visa, USCIS
Posted in Adjustment of Status, Fiance Visa Thailand, General Legal Information, K-3 Visa Thailand, K1 Visa Thailand, Legal Opinion, Miscellaneous, Upcoming Legislation, US Visa and Immigration, US Visa Thailand, USCIS | No Comments »

Apparently the Thai government officials in Phuket are actively investigating companies that might be using Thai nominees in order to conduct otherwise restricted activities in Thailand.  To quote the Nation via Thaivisa.com:

“A fact-finding effort is underway in Phuket to compile information about local businesses in which Thai people are hired by foreigners as their nominees – a practice considered suspicious and possibly illegal.”

The major concern seems centered around use of Thai nominees to own Thai property. Thailand has imposed many legal restrictions on foreign ownership of Thai property. Many are under the mistaken idea that foreigners are completely barred from owning land in the Kingdom of Thailand. This is in fact not true as foreigners can own land, but they need Ministry of Interior approval and this approval is virtually impossible to obtain except in limited cases involving inheritance.

The above quoted article doesn’t really mention anything new regarding the attitude of Thai authorities, but instead seems to mark a change in attitude regarding the use of nominee shareholders. Although nominee shareholders are expressly prohibited under Thai law, it is difficult to ascertain exactly what constitutes a “nominee.” Basically, a passive shareholder could be considered a nominee, but the term would be inaccurate because the supposed nominee has a vested interest in the company and is not holding shares for anyone else. The real poison pill comes down to land. Where a company is being used to own Thai real estate the issue of nominee shareholders is a major one that will likely be heavily scrutinized by Thai authorities. That being said, a Thai company that owns property is not illegal as a Thai company is not barred from owning land in Thailand. This being said, the Thai land department is taking a very tough stand regarding the use of nominees:

“The provincial land office said legal action would be taken against any businesses found to have been operated illegally with a majority of foreign ownership, because Thai land laws imposed strict sanctions on foreigners owning land plots in Thailand.”

For those who wish to own property in Thailand, it may be best to obtain a Foreign Freehold Title to a Thai Condo rather than attempting to circumvent land department regulations. At the present time, it would appear that Thai authorities are stringently enforcing the land laws and foreigners in Thailand should be prepared to deal with increased scrutiny. Strict observance of the law may be the best method of ensuring the least amount of difficulty.

Tags: Thailand Business, Thailand Legal News, Thailand Property Law, Thailand Real Estate Law
Posted in General Legal Information, Legal Opinion, Miscellaneous, Thailand Business, Thailand Property, Thailand Real Estate | No Comments »

Speculation abounds as rumors circulate about possible price increases for Thai work permits. A common misunderstanding regarding Thai law is that the right to work is built into a foreigner’s Thai visa. This misconception is particularly acute with regard to the Thailand Business Visa. It is easy to believe that a business visa would entitle the holder to work in the country, but in Thailand, as in the United States on a B1 visa, foreign nationals are only allowed to work after obtaining Thai Ministry of Labour approval in the form of a Thai work permit.

The Nation, in conjunction with Thaivisa.com is reporting on the matter, to quote their report:

“The Phuket Gazette has learned that recent rumors of substantial increases in work permit fees may be well-founded. Discussions are underway in the Department of Employment that could once again lead to massive hikes in these annual fees.”

This situation appears quite alarming to expats in Thailand because within recent memory another dramatic fee increase caused consternation due to the enormity of the difference in cost before and after the fee increase took effect. To quote further from the Thaivisa.com website:

“The last hike in work permit fees occurred in September 2002, delivering an impressive 200% hike, an event that triggered lively and colorful comments on ThaiVisa.Com, host to Thailand’s largest English-language Web forum. Some recent comments in that forum, albeit from sources undisclosed and/or unofficial, foreshadow this month’s hike as likely to be something well over 100%.”

Six thousand Thai baht is only roughly equivalent to approximately two hundred United States dollars and compared to the Immigration system in the United States, United Kingdom, or many countries in the European Union the fees are relatively low when one takes into account the fact that the bearer of a work permit is given the right to work in a foreign country. Even keeping these factors in mind, an increase of one hundred percent is still considerable and substantial, particularly for the small Thai business employing foreigners or for the expat living in Thailand and running a small business.

One explanation for this fee increase could be economic. Although not as hard hit by the worldwide economic crisis, Thailand still has had flat numbers in tourism and the economy is sagging. Further compounding the problem is the prospect of another less-than-optimal high season and the specter of new demonstrations causing foreign investment to flee in search of economies with more stable government. These factors could explain why this fee increase is being brought forward at this time as protectionist attitudes and the need for government revenues increases. It is uncertain if or when the fee increase will occur, but one thing is certain: some foreigners will always want to work in Thailand and they will probably always have to pay some sort of government fee for the privilege.

Tags: B1 visa, Thai Visa, Thai Work Permit, Thailand Business Visa, Thailand Immigration, Thailand Work Permit, Thailand Work Permit fee
Posted in Legal Opinion, Miscellaneous, Thailand Business, Thailand Visa, Upcoming Legislation | No Comments »