Integrity Legal

The United States Department of Homeland Security recently announced rule changes that will effect those traveling to the United States of America. Under the new rules, clearer lines have been drawn with regard to searches of media devices belonging to those entering the USA. To quote an official press release from the US Department of Homeland Security:

“The new directives address the circumstances under which U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) can conduct border searches of electronic media—consistent with the Department’s Constitutional authority to search other sensitive non-electronic materials, such as briefcases, backpacks and notebooks, at U.S. borders.”

These new rules will have an important impact upon those Americans residing in Thailand who return to the United States of America on a regular basis. These rule changes are even more important for the fiance or spouse of a US citizen traveling to the United States on a K1 or K3 visa. In many cases, the Thai fiancee or spouse has a less than perfect grasp of the English language and therefore cannot adequately communicate with the Customs and Border Patrol (CBP) Officers. Therefore, it may be wise for the American citizen loved one to research the situation in order to explain to the Thai entrant the possible issues that may arise at the port of entry into the United States.

One interesting aspect of this rule change deals with the right of the person being searched to be present while the search takes place:

Searches of electronic devices should be conducted in the presence of the individual whose information is being examined unless there are national security, law enforcement, or other operational considerations that make it inappropriate to permit the individual to remain present. Permitting an individual to be present in the room during a search does not necessarily mean that the individual will be permitted to witness the search itself. If permitting an individual to witness the search itself could reveal law enforcement techniques or potentially compromise other operational considerations, the individual will not be permitted to observe the search itself.

It is important to note that the United States government has a great deal of unfettered search authority because they consider someone who has not actually been admitted into the US to be outside of the jurisdictions of the US constitution. Therefore, since the constitution does not apply, then normal rules restricting unlawful search and seizure do not apply. This can have a major impact upon an alien seeking entry to the USA, because they will not be accorded the same legal protections as they would after having been admitted.

Tags: CBP, Customs and Border Patrol, Department of Homeland Security, DHS, ICE, Immigration and Customs Enforcement, Search and Seizure
Posted in Fiance Visa Thailand, General Legal Information, K-3 Visa Thailand, K1 Visa Thailand, Legal Opinion, Miscellaneous | No Comments »

As many people around the globe have no doubt heard, the venerable Senator Kennedy recently passed away. We on this blog would like to offer our heartfelt condolences to his family as they mourn his death. The loss of Senator Kennedy is something of a setback for the immigrant rights movement as he was a staunch supporter of many initiatives aimed at helping those who had immigrated to the United States of America. To quote an email sent out by the American Immigration Law Foundation:

Senator Kennedy was the driving force behind every significant piece of immigration legislation over the past 40-plus years. Most recently, Senator Kennedy co-authored a comprehensive immigration reform bill which failed to pass in 2007. Upon its defeat Senator Kennedy said, “Immigration reform is an opportunity to be true to our ideals as a nation. Our Declaration of Independence announces that all of us are created equal. Today, we failed to live up to that declaration for millions of men and women who live, work, and worship beside us. But our ideals are too strong to be held back for long.”

With an impending debate upon the future course of American Immigration policy one wonders if the loss of Mr. Kennedy will have an impact upon the ultimate outcome of Comprehensive Immigration Reform.

Senator Kennedy was an ardent defender of same sex couples. Senator Kennedy took many stands in support of the Lesbian, Gay, Bi-sexual, and Trans gender (LGBT) community.To quote another website:

“In the 1990′s Kennedy became the clear Senate leader in the fight to end discrimination against members of the LGBT community, and to fund programs for HIV/AIDS prevention and treatment. He was also one of the very few senators to vote against the Defense of Marriage Act (DOMA).”

As we have mentioned previously on this blog, one of the interesting issues involved in the current debate about US Immigration Reform is that of same sex couples who are currently barred from reuniting with loved ones due to the fact that the Defense of Marriage Act (DOMA) precludes Federal acknowledgment of their relationship. This means that a same sex couple who validly marries  and tries to obtain Immigration benefits will be denied because DOMA does not recognize their marriage, even if the marriage occurred in a US state which recognizes same sex marriage (like Massachusetts). Further, under current legislation the same sex couple cannot obtain a K1 visa if the underlying intention is to marry in the US.

Mr. Kennedy’s death is sad, but his spirit lives on in the continued debates about Immigration reform.

Tags: American Immigration, CIR, Comprehensive Immigration Reform, Edward Kennedy, Ted Kennedy, US Immigration
Posted in Legal Opinion, Miscellaneous, Upcoming Legislation | No Comments »

In recent news the Thailand property market has been placed under increased scrutiny for fear that foreigners are using Thai companies as a way of owning land and thereby circumventing the de facto prohibition placed upon non-Thai citizens seeking to buy Thai real estate. In some cases, the Thai government authorities are forcing companies which are not in compliance to sell their Thai property.

In a recent edition of the Bangkok Post, the aforementioned phenomenon was reported on at length:

“If the investigation [by the land department] reveals that the firm holding the land have an illegal shareholding structure, the Lands Department will ask it to transfer the plots within 180 to 365 days.Recently, the Lands Department found a company in Phuket whose foreign ownership exceeded the legal limit. The firm had formerly registered with a legal ownership – with foreigners holding a 49% stake and Thais the balance. However, it later increased its capital, with foreign nationals taking up all new shares, making it ineligible to own land. After the department learned about this case, it took action to have the firm transfer the land it owned.”

The situation described above is the classic case of a scenario in which those operating the Thai company opted for the expedient route without making certain that the legalities were respected. There are ways in which Thai companies can own land, but they must be carefully structured in order to comport to the laws of the Kingdom of Thailand. That being said, one should not try to set up any type of corporate device purely for the purpose of getting around the laws of the Kingdom of Thailand.

It remains to be seen whether this increased scrutiny will continue, but those wishing to acquire property in Thailand ought to be aware that there are other perfectly legal methods of acquiring interest in Thai real estate. Long term Thailand leases can be a benefit to those wishing to acquire a leasehold. For those who insist upon obtaining a freehold title to a piece of Thai property, foreigners are entitled to take freehold title to a Thai condo. However, there have been regulations passed recently which place more restrictive legal definitions upon what is considered a “condo.”

There is also a very specialized property instrument known as a usufruct, which allows the usufructuary to hold a lifetime usage right in the structures located upon a designated piece of property. Some people opt to split the title to a house from the title to the land. This can be very difficult, but has been done when executed by professionals.

Tags: Thai Condo, Thai Lease, Thai Nominee Shareholders, Thai usufruct, Thailand Property, Thailand Real Estate
Posted in General Legal Information, Legal Opinion, Miscellaneous, Thailand Business, Thailand Property, Thailand Real Estate | No Comments »

The United States Citizenship and Immigration Service (USCIS) is a very large bureaucracy that handles the processing of many petitions for US Immigration benefits. The Service can take a great deal of time to process visa applications and simple delay is not considered out of the ordinary. That being said, there are certain situations in which a delay by USCIS is unwarranted.

If it becomes necessary to compel a government agency to fulfill their statutorily mandated obligations, then a Writ of Mandamus can be filed to compel the agency or officer to perform their duty. A Mandamus action is a civil action and is promulgated by a court of competent jurisdiction. It specifically compels a government officer to carry out their duties in the manner prescribed by law. A piece of legislation known as the Mandamus Act, can be found at 28 U.S.C.: 1361. This provision specifically states that Mandamus is an, “Action to compel an officer of the United States to perform his duty.”

With regard to USCIS, a mandamus action will likely be brought before a Federal District Judge in a United States District Court. If granted, the court’s order will be binding upon the USCIS officer who allegedly failed to adequately fulfill his duties.

The writ of Mandamus exists for a very good reason as it was designed to create a check on the unfettered powers of government officers. That being said, those thinking of filing for a writ of mandamus should give the decision a great deal of thought because the ultimate result could turn out to be detrimental in certain cases. For example, should a case get caught up in the system making it necessary to file a Mandamus action, because the Mandamus order only compels the officer to take action, and does not compel the officer as to what decision should be made, it could turn out that the officer simply denies the application and the case comes to an end, albeit more quickly than it likely would have had the Mandamus order not been granted.

With this in mind, the Mandamus action should be utilized judiciously as not every case calls for it. In those cases where a Mandamus action would be appropriate, the seeker of such a writ should weigh all of his or her options in order to make a full determination as to whether the Mandamus action is appropriate in light of the unique facts in that particular case.

Tags: American Immigration law, Mandamus, US Immigration, US Immigration Law, US Visa, US Visa Thailand, USCIS
Posted in Legal Opinion, Miscellaneous, US Visa and Immigration, US Visa Thailand, USCIS | No Comments »

As the Obama Administration continues to put together a cogent piece of Comprehensive Immigration Reform legislation, immigrant communities in the United States of America are becoming more politically active in an effort to make their views regarding the Immigration situation known.

One immigrant group of particular interest is that of first and second generation Asian-Americans. The blog Immigration Impact recently discussed the political clout that these Asian groups are beginning to harness:

“According to the Asian American Justice Center, there are currently more than 15 million Asian Americans residing in the United States—the majority of whom are foreign born and thus have firsthand knowledge of our woefully outdated immigration system. Countless Asians are caught in the family immigration backlogs and remain separated from close family members, and there are more than 1 million undocumented Asians in the U.S. today. Because the broken immigration system affects them in such a personal way, many in the Asian American community are banding together this week to attend town hall meetings with members of Congress, hold press conferences and petition lawmakers to fix our currently broken immigration system that restricts due process rights, breaks up families, and ultimately hurts the economy.”

The United States Embassy in Thailand processes a large number of US visa cases each year. Among the many US family based petitions are those for the K1 visa and Immigrant visas based upon an I-130 application and these are probably the most popular American visa categories.  The people entering on these types of visas eventually take up Permanent Residence either through adjustment of status or upon entry as an intending immigrant. Once stateside, many of these Thai immigrants in the United States eventually go on the naturalize as United States Citizens. These immigrants and their children have something of a unique opinion regarding immigration reform and as such it is most likely a net positive if they enter the public discourse on this important issue.

As Citizens or Lawful Permanent Residents of the United States, Asian American Immigrants probably account for a disproportionately large number of family based petitions in lower preference categories. A result of this situation is the fact that many of these families remain apart for long periods of time due to the quotas set on the various immigrant visa categories and the large caseload being processed by the United States Citizenship and Immigration Service (USCIS). Hopefully, Comprehensive Immigration Reform will untie the Gordian Knot of US Immigration for these separated families while at the same time assuring that America is safe and secure.

Tags: American Visa Thailand, CIR, Comprehensive Immigration Reform, K1 Visa Thailand, US Immigration, US Visa Thailand, USCIS
Posted in Fiance Visa Thailand, K-3 Visa Thailand, K1 Visa Thailand, Legal Opinion, us embassy bangkok, US Embassy Thailand, US Visa and Immigration, US Visa Thailand | No Comments »

As President Obama appears to be retreating from campaign promises for Comprehensive Immigration Reform, there are new reports emerging that Immigration may be a boon to the economy of the United States of America.

The Wall Street Journal’s website from August 18, 2009 is quoted as stating:

“A new study published by the Cato Institute finds that the focus on repelling immigrant labor does more harm than good to the U.S. economy. “Increased enforcement and reduced low-skilled immigration have a significant negative impact on the income of U.S. households,” write Peter Dixon and Maureen Rimmer, the study’s authors. “In contrast, legalization of low-skilled immigrant workers would yield significant income gains for American workers and households.” A program that allowed more low-skilled foreigners to enter the U.S. workforce lawfully would put smugglers and document-forgers out of business, explain the authors. “It would also allow immigrants to have higher productivity and create more openings for Americans in higher-skilled occupations.”

Though somewhat counter intuitive, the tightening of security measures at United States borders may be helping to keep the American economy in the doldrums.

Of further interest in the Wall Street Journal’s article regards Mr. Obama’s backpedaling on the major issues involving American Immigration. To further quote the Wall Street Journal online:

“President Obama continues his quiet retreat from a campaign pledge to make comprehensive immigration reform “a top priority in my first year as President.” Following a summit meeting in Guadalajara last week with the leaders of Mexico and Canada, Mr. Obama said that an immigration overhaul will have to wait until next year.”

In the next Congressional session it is hoped that Comprehensive Immigration Reform will be dealt with and the current problems associated with large numbers of illegal aliens in the United States will finally be put to rest. Of further concern to some immigration equality advocates  is the issue of US family based visas for couples of the same sex. Currently the Defense of Marriage Act bars the Federal government from granting US Immigration benefits based upon a same sex marriage or an intent to enter into a same sex marriage.

However, these issues are resolved the underlying issue is one of decisiveness. The current Presidential Administration needs to begin making some difficult choices with regard to immigration. Many of these choices will not be well received by all segments of the United States population. Nonetheless, definitive action needs to be taken as many people in the United States continue to live in a kind of limbo and many couples remain separated from their loved ones abroad.

Tags: Comprehensive Immigration Reform, same sex visa, US Immigration, US Visa
Posted in Legal Opinion, Miscellaneous, Upcoming Legislation, US Visa and Immigration, US Visa Thailand | No Comments »

There appears to be growing frustration among many groups who supported President Barack Obama when he was campaigning for the White House. During his bid for the Presidency, Mr. Obama was quite vocal about the need to reform the current immigration system in the United States of America. However, as Mr. Obama’s Presidency has begun as a very busy administration, Comprehensive Immigration Reform (CIR) has seemed to have been shunted to the “back burner.”

In a recent web posting entitled, “Obama Pushes Immigration Reform to 2010, Jokes About Being Called ‘an Illegal Immigrant’” the author, Diego Graglia,wrote:

“Obama added he can’t get immigration reform passed on his own. “It’s important that people realize that things don’t happen because the President snaps his fingers. I can’t do all this by myself,” he said. He asked that grassroots groups continue to organize and mobilize for reform and that members of Congress face the political risks involved.”

Although it is correct that the President cannot solve all political problems by snapping his fingers, this comment does beg the question: then what can he do? Certainly it takes more than simply snapping one’s fingers, but at the same time the President wields a great deal of hard, soft, indirect legislative, and overt executive power. Certainly, he of all people could at least attempt to bring about some sort of compromise measure that would not require as much political capital.

At the same time, there are those who argue that Obama has too many current problems to deal with and Immigration reform is an issue that should be dealt with when the President has enough time to devote his full attention to this incredibly important issue. With the economy only beginning to show signs of recovery and foreign commitments to sort out, the President has many urgent and pressing problems to deal with. However, many have argued that Immigration reforms are more important as Immigration problems have an impact upon both the domestic economy and foreign policy.

An issue that is increasingly becoming entangled with Comprehensive Immigration Reform is that of US Immigration benefits for same sex couples. There are some who believe that United States Immigration benefits for same sex bi-national couples will likely be dealt with in provisions of CIR legislation. It is too soon to tell, but it seems logical that if Comprehensive Immigration Reform is considered to be a secondary issue, then Immigration benefits for same-sex couples may get short shrift as well, at least for now.

Tags: CIR, Comprehensive Immigration Reform, same sex visa, US Immigration Law, US Visa
Posted in General Legal Information, Legal Opinion, Miscellaneous, Upcoming Legislation | No Comments »

Thailand is a very large and somewhat polyglot Kingdom. There are many different dialects of Thai as well as many religious and cultural traditions present throughout the Kingdom. Keeping track of the comings and goings of the Thai citizenry can be a difficult task, luckily there are Thai Immigration authorities deal with these concerns. However, a more important concern, particularly for the common Thai person, is keeping track of the vital statistics records for those resident in the Kingdom of Thailand.

A Thai Amphur office (spelled Amphoe or Ampoe) is best described as a civil registry office. The office is tasked with keeping a record of Thai marriage, Thai divorces, births in Thailand, deaths in Thailand, recordation of Thai prenuptial agreements, and in limited circumstances recordation of Thai wills. In a way, the Amphur office is something of a “Jack of all trades,” office. Another accurate name for this office is a “civil registry.”

Even though the Amphur’s legal mandate does not involve registration of Title deeds for Thai property or Real Estate, a really major part of the Amphur’s role in the Thai bureaucracy involves Thai household registration. A Thai household registration booklet, also known in the Thai language as a Tabien Baan (or Tambien Baan), records the place of a household and the head of the household. It further records how many people live in that household and their names and ages.

The Amphur office maintains the database of this information and is the office that must be used in order to change information listed on the Tabien Baan or when adding a new member to the Thai household registry. Contrary to popular belief, it is possible for foreign nationals to obtain a tabien baan or be registered on an already existing tabien baan. That being said, the only type of Tabien Baan that a foreigner may be listed on is a yellow tabien baan which is different from the blue tabien baan. A blue tabien baan is reserved for Thai citizens and foreigners with Thai permanent residence. It should be noted that the ease of getting on a yellow tabien baan will likely depend upon the office with jurisdiction over the household because local office procedures can differ and this could result in relative difficulty for the prospective registrant.

Foreigners can get married at a local Amphur office regardless of citizenship. However, the procedure for getting two foreign nationals married depends upon each person’s nationality. A person’s nationality and their Embassy’s protocols can affect the marriage process. It is wise to do research or contact an attorney before beginning the marriage registration process.

Tags: Amphoe, Amphur, Tabien Baan, Thai Amphur, Thai Property, Thai Real Estate, Thailand Marriage Registration
Posted in General Legal Information, Legal Opinion, Miscellaneous, Thai Family Law, Thailand Marriage Registration, Thailand Property, Thailand Real Estate | No Comments »

The government of the Kingdom of Thailand has announced that they will be launching investigations into the buying of agricultural Thai real estate by foreign nationals in the Kingdom of Thailand.  Apparently there have been rumblings among the Thai farming community concerning an influx of foreigners buying land in Thailand in order to grow crops for eventual sale on the open market.

Many individuals are concerned that a foreigner will use a Thai company to own land and thereby circumvent the laws on the books regarding foreign real estate ownership. The Nation Newspaper in conjunction with ThaiVisa.com is reporting on the issue, to quote their article:

“Concerned Thai officials will continue monitoring whether foreigners have violated law on buying or renting farmland to engage in agriculture in the kingdom although initial investigation found that such a practice does not exist, Deputy Commerce Minister Alongkorn Ponlaboot said on Saturday…Farming as an occupation is reserved for Thais only and the probe was conducted following an outcry by some farmers that foreigners have bought numerous plots of farmland here and hired farmers to provide the labour.”

People moving to Thailand or wishing to live part time in the Kingdom should be aware of the somewhat xenophobic attitude of many Thai people when it comes to the subject of Thai property law. Regulations regarding Thai real estate reflect a negative attitude toward foreign ownership of Thai property. Many Thai people consider Thai property ownership to be a right that ought to be held in reserve for Thai citizens. That being said, there are exceptions to this general mood. Most Thai people do not see a problem allowing foreign nationals to own a Thai Condo in freehold. Further, obtaining a Yellow Tabien Baan (foreign house registration booklet) is becoming somewhat commonplace. However, this nonchalance does not extend to feelings regarding ownership of farm land and Thai government policy is a reflection of these feelings.

Evidence of this attitude can be found throughout the Thai foreign business act. A Thai company that is owned by a foreign national is specifically barred from engaging in business activities involving Thai farming. Even the US-Thai Treaty of Amity specifically precludes land ownership and agricultural activity. An Amity Treaty Company, although accorded preferential “national treatment,” is still subject to somewhat stringent regulation regarding Thai agriculture.

With the current global economy still in a somewhat less than optimal condition, it seems logical to assume that these restrictive measures will remain part of the law of the Kingdom of Thailand. It does not seem likely that the Thai government will allow foreigners to engage in farming activities in the near future.

Tags: Amity Company, Amity Treaty Company, Tabien Baan, Thai Company, Thai Farm land, Thailand Property Law, Thailand Real Estate Law, US-Thai Treaty of Amity
Posted in General Legal Information, Legal Opinion, Thailand Business, Thailand Property, Thailand Real Estate | No Comments »

In recent weeks there appears to be an upward trend in the Thai property market. Looking at the situation strictly from the standpoint of a foreign attorney, more people seem to be looking into purchasing Thai property. That being said, what type of Thai property is seemingly in demand?

There seems to be renewed interest amongst foreign nationals in obtaining a Thai Condo. These Condos often have the benefit of conferring foreign freehold ownership to the foreign national in the Thai Title Deed. Further, by obtaining a foreign freehold Title deed, the foreigner would likely be able to obtain a Yellow Tabien Baan, which is a house registration specifically designated to non-Thai nationals. Although somewhat difficult to obtain, there are many benefits associated with a Tabien Baan. Another benefit to the owner of a Thai condo: easier obtainment of a Thai O visa.

Aside from the legal benefits of purchasing Thai real estate, it would also appear as though the property market has stabilized and demand is on the rise. Many people take the view that the Thai property market has “bottomed out,” although we cannot make speculations as to the accuracy of this claim, the plausible argument could be made that the seemingly continuous descent of the property market is at an end.

What does this mean for the potential buyer? For starters, it means that one should carefully weigh all options before making a decision to buy property. Further, a prospective buyer should conduct due diligence in order to ensure that the property in question is valuable and the seller does in fact have the right to the property he wishes to sell.

Often when buying Thai Condos, it is wise to wait until a building is actually built before putting any money down as a deposit. Unfortunately, Thailand is rife with stories of unsuspecting buyers who put up a down payment on a property development only to see the developer go bankrupt before the building was completed thereby leaving the prospective buyer with a deposit down on an unconstructed untitled piece of property. in order to avoid situations such as this it may be wise to retain a property lawyer.

Finally, with the Thai property market apparently on the upswing, transaction taxes and fees may be on the rise as well. Since the Thai government imposes land transfer fees based upon the price of the Real Estate rising prices may create an environment of rising fees.

(Nothing Contained herein should be construed as legal advice. No attorney client relationship, express or implied, is created by reading this piece.)

Tags: Tabien Baan, Thai Condo, Thai O Visa, Thai Property, Thai Real Estate, Thai Title Deed, Thailand Property, Thailand Real Estate
Posted in General Legal Information, Legal Opinion, Miscellaneous, Thailand Business, Thailand Property, Thailand Real Estate, Thailand Visa | No Comments »