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Integrity Legal

Archive for the ‘Miscellaneous’ Category

25th October 2009

Recently, Alejandro Mayorkas was appointed as the Director of the United States Citizenship and Immigration Service within the United States Department of Homeland Security. Mr Mayorkas was recently interviewed by members of the United States and foreign press corps in an effort to hear his views on United States Immigration policy and the future of US Immigration law.

Below are some of the important quotes that this author found both interesting and insightful, the full interview transcript can be read here.

This blog is mostly dedicated to United States family immigration and visas. Therefore, it was a pleasure to hear that Mr. Mayorkas considers US Family Immigration to be a major priority of his agency:

“…One of the goals of an immigration system[:] family unification. Do the laws that we have now achieve that most ably? That’s a question that is — that I think is a valid one to ask. And so we have to take a look at the goals, as a nation, of our immigration system and ask does the structure that we have in place – or do the mechanisms that we have in place accomplish those goals most ably, most completely and most efficiently? And where there are shortcomings, that is, indeed, what immigration reform is in part about.”

As we have posited previously on in this forum, the current system of adjudicating non-immigrant family visas could be considered redundant and a poor distribution of resources. In the case of the K1 visa and the K3 visa one could make a valid argument that such visas, as they involve the doctrine of dual intent, could be completely adjudicated at the Embassies and Consulates abroad while letting USCIS deal with more pressing issues at home. If K visa non-immigrant family members do decide to adjust status, then the USCIS will need to deal with the case as the adjudication will occur under their domestic authority.

Mr. Mayorkas was also quoted as saying, “The fact that I myself was once a refugee to this country informs my views of our agency’s mission and the priorities that we will carry forward, during the time that I am privileged to serve.” This author is definitely happy to see a Director who has personal knowledge of the Immigration system. Hopefully, these personal insights will result in a net benefit for everyone who has dealings with USCIS.

The Director was further quoted as saying,

“The goal of family reunification is indeed one that we hold dear to our efforts as we try to administer the immigration laws fairly and with justice always in mind. Ultimately, our adjudications are indeed on an individualized basis, and there are mechanisms that the law acknowledges to achieve family reunification in particular cases. And that is very much a part of the work that we do.”

This author is happy to hear such sentiments from the Director of USCIS and hopefully this is a sign of things to come as the Immigration system becomes a more compassionate and efficient agency of the US government.

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24th October 2009

For those traveling to Myanmar information on the Myanmar (Burmese) Embassy in Bangkok, Thailand may be helpful in making preparations for a Myanmar visa application. The government of the Union of Myanmar requires a sort of “exit visa” for those leaving the country if they have not received a Myanmar visa before entering the country. Therefore, it is highly advisable to obtain a Myanmar visa before traveling to the country as it will make the entrance and exit process a great deal more streamlined. Myanmar requires many foreign nationals to obtain a visa in any event. That being said, the Myanmar visa application process can be a rather cumbersome undertaking as the Myanmar Consular Section, although very courteous and polite, seems to have a very heavy caseload of visa applications.

Out of all the countries in the Association of Southeast Asian Nations (ASEAN), Myanmar is the only one that does not allow visa free travel for nationals of member nations. Therefore, those wishing to travel to Myanmar will likely need a visa unless they are able to enter on some sort of visa exemption.

The Myanmar Embassy is in Bangkok near Sathorn Road in the Silom area. Currently, the Consular Section is undergoing renovations so the waiting room is in a state of some disarray. Therefore, foreknowledge of the protocols may be beneficial. Currently, all applicants must submit their visa applications in person. Therefore, one cannot send a messenger in one’s stead. Applicant’s must get a number from the first window. The Consular officer will go over the visa application and if approved they will ask the applicant to remit their passport and return to pick it up. If the applicant submits the application late in the day, then it may be necessary to wait until the following day to pick up the visa and passport.  Myanmar visas are usually issued with a validity of 30 days. That being said, unlike a Thailand visa or an American visa, the Myanmar visa only allows presence in the country during that time period. Unlike Thai or US visas the entrant will not be stamped into the country in lawful status that may surpass the underlying visa’s initial validity. Something akin to a Thai visa extension must be obtained in order to remain in the Union of Myanmar longer than the initial visa’s validity period.

The Consulate will give the applicant a visa stamp in their passport as well as another slip which must be presented along with the visa at the Immigration checkpoint in Myanmar. After being stamped into Myanmar, the entrant can remain until the visa expires. Myanmar allows for tourist as well as business visas. That being said, business visas can be difficult to obtain.

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23rd October 2009

Recently the United States Citizenship and Immigration Service (USCIS) announced that a revised form has been issued for those who wish to file for an I-601 Waiver. An I-601 waiver is a waiver of legal grounds of inadmissibility under the United States Immigration and Nationality Act. An alien is found inadmissible if they meet the elements of inadmissibility under the act. Common grounds of inadmissibility among applicants in Thailand are overstay, prostitution, Crimes involving moral turpitude, and health related grounds. If a finding that one of these grounds exists is made by the Consular or Immigration officers, then the applicant must seek an I-601 waiver before they will be entitled to enter the United State lawfully.

In recent days, USCIS has been revising some of the forms that they will accept in connection with certain immigration matters. For example, USCIS recently announced that they will only be accepting an updated version of the G28 Notice of Attorney Appearance. Those who have already filed applications for Immigration benefits before this update comes into effect will not need to submit any new forms as the service will continue to recognize the old forms in an effort to seamlessly transition from the old forms to the new. These efforts seem to be an attempt to streamline the, somewhat complicated, administrative aspects of the US Immigration application process. To quote directly from the USCIS press release:

USCIS has revised Form I-601, Application for Waiver of Grounds of Inadmissibility (Revision Date 04/06/09 N, OMB Expiration Date 04/30/11) to make it easier for applicants to complete. Applicants may now select from a list of grounds of inadmissibility on the form itself and mark all which apply to them in order to request a waiver. In addition to the list, the form includes a section where applicants can describe, in their own words, why they believe they are inadmissible. In the previous edition of Form I-601, information about grounds of inadmissibility could only be found of the form’s instructions.

We applaud the efforts on the part of the Service to make this process less complicated and more straightforward. For those interested in submitting a successful I-601 waiver application, it should be remembered that in most cases involving an I-601 waiver, the applicant(s) must show that to deny the waiver would result in an “extreme hardship” to a United States Citizen or Lawful Permanent Resident. This can be a difficult legal obstacle to overcome which is why it may be wise to retain an immigration lawyer to assist with the preparation and submission of such a petition.

Unlike the United States Embassy in Bangkok, which only has jurisdiction ovr the Kingdom of Thailand. The local USCIS office in Bangkok has administrative jurisdiction over most of Asia. Therefore, I-601 waiver applications filed in connection with a K1 visa, K3 visa, or CR1 visa sought from Asia could be submitted at USCIS Bangkok.

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21st October 2009

US Visa from Myanmar (Burma)

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Although not boasting the same tourist numbers like countries such as Thailand and Indonesia, Myanmar (Burma) has a large number of nationals applying for United States visas, particularly when one takes into account the fact the Myanmar (Burma) is one of the most politically isolated countries in Southeast Asia. Although a member of the Association of Southeast Asian Nations (ASEAN), Myanmar has not signed the protocols allowing for visa free travel for citizens of ASEAN countries. Therefore, it can be extremely difficult for Burmese visa seekers to travel to another US Consular or Diplomatic post in the region in order to process a visa application.

The US Embassy in Myanmar (Burma) is located  in Yangon (Rangoon). This post does process visa applications for those of Burmese (Myanmar) nationality or those residing in the Consular District. That being said, obtaining a US visa for a Burmese national can be very complicated due to the fact that the government of the Union of Myanmar (Burma) is reluctant to issue passports to its citizenry. Further, the government in Myanmar (Burma) takes a dim view of Burmese nationals marrying foreigners. Government officials can often cause delays in obtaining necessary documentation. The implacable nature of some bureaucrats leads many to apply for a USA visa in a different jurisdiction.

Many Americans in Thailand meet Burmese nationals who are living and working in the Kingdom of Thailand. In most situations, Burmese-American couples opt to process their visa application at the US Embassy in Bangkok. Taking this course of action does not eliminate the need for a Myanmar passport, but in some cases, if the Burmese national can obtain a Thai visa, then they will be able to remain in Thailand until the visa interview at the US Embassy. Further, if the Burmese national obtains a Thai visa, then this will likely ensure that the US Embassy will take jurisdiction over the case, rather than forwarding the application to the Embassy in Yangon (Rangoon).

That being said, some opt to utilize the K-3 visa as it can be beneficial for those with a Burmese fiancee who wish to process their application in Thailand. Before getting married, the couple may need to decide where they wish to apply for a visa as this may have an effect upon where the marriage should be executed. Even still, a K1 visa will still be faster and if the Burmese national remains in lawful immigration status in Thailand, then it is likely that the American Embassy will take jurisdition over the case.

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20th October 2009

There are many Thai Embassies and Consulates throughout Southeast Asia. One of the major posts in the region is definitely the Royal Thai Embassy in Kuala Lumpur. Thailand and Malaysia share a border and are two of the larger members of the Association of Southeast Asian Nations (ASEAN). This likely explains why both nations maintain relatively large diplomatic and consular posts in each of  these countries. Kuala Lumpur is also a major destination for those wishing to acquire a Thai visa at a Consular post abroad.

The reason for the attraction is likely based largely upon the fact that there are frequent flights from Bangkok to Kuala Lumpur and these flights are relatively cheap compared to airfares for other destinations in the region. Recently, the Royal Thai Consulate in Penang, Malaysia began restricting the issuance of Thai tourist visas to those who have been remaining in Thailand for long periods of time. As a result, many so called “visa runners” have been searching for more flexible consulates in the region. There seems to be no doubt that the Royal Thai Embassy in KL is maintaining a visa issuance policy similar to Penang. However, many visa runners opt to use different posts in an effort to obtain a new visa.

For those thinking of traveling long term in Southeast Asia, it may be wise to develop a strategy regarding one’s visa needs before leaving one’s home country. For example, obtaining a 1 year multiple entry visa before traveling to Thailand would create a great deal of flexibility for the traveler even if he or she does not stay in Thailand for a year and opts to travel throughout the region. This would be a benefit because a long term Thai visa such as this allows for 90 days upon each entry and permits infinite entries for as long as the visa is valid. Therefore, if one is backpacking throughout the region and Thailand is the main country to be toured, a long term visa would be a great deal more beneficial than simply using visa exemption stamps or single entry tourist visas because one cannot cross land borders and be admitted multiple times using either of these methods. Currently, one will only be granted 15 days of lawful presence at any land border port of entry to Thailand.

For the most part, Consulates and Embassies in Southeast Asia will only issue non-immigrant visas such as the Thai Business visa and the Thai O visa for a duration of 90 days.  Therefore, if one obtains a non-immigrant visa at one of these posts, then it may be necessary to acquire a visa extension through the Royal Thai Immigration Police Department in Thailand.

For more information please see: thailand visa

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18th October 2009

While traveling  recently to Yangon (Rangoon), Myanmar (Burma) the author had the opportunity to visit the Royal Thai Embassy in that country. The first impression of the Embassy compound was not positive as the building itself is in somewhat dilapidated condition. However, the first impression is misleading as the inside of the Consular Services section is quite nice as well as being very clean and cool. The Consular staff at the Thai Embassy in Yangon (Rangoon) were very friendly, efficient, and helpful. That being said, foreknowledge of the Consulate’s protocol is always helpful in making certain that one’s experience with the post is pleasant.

The first thing to note about the Thai Embassy in Yangon (Rangoon) is the fact that there is a security guard at the front who acts as a sort of gatekeeper for the facility. Access is obtained after obtaining a number and turning over a piece of identification. This rule seems loosely enforced with regard to farangs, but as I was accompanying a Burmese national, I did not need to present ID as my associate produced her Myanmar ID Card. There are a great many “backpackers,” and tourists using this post as it is one of the closest to the Kingdom of Thailand, and therefore an easy destination for a visa run. That being said, it is not nearly as popular as Kuala Lumpur, Penang, or Vientiane, if for no other reason than the fact that Myanmar requires a visa for nearly all tourists and greatly restricts the issuance of visas on arrival. Therefore, acquiring a Thai visa from Myanmar (Burma) may necessitate the obtainment of a Myanmar (Burmese) visa in order to travel to the country and visit the Thai Embassy.

Generally, visa applications are dropped off in the morning and picked up the next day. Depending upon the situation, the applicant’s passport and visa may be retrieved in the same afternoon. The address of the Royal Thai Embassy in Myanmar (Burma) is:

No.94, Pyay Road,
Dagon Township Yangon
Union of Myanmar

The office hours for visa application submissions are 9:00 am until 11:30 am. One may retrieve their passport in the afternoon from 2:00 pm until 5:00 pm. One should be aware that the Union of Myanmar (Burma) is in a different time zone. There is a half hour difference between the time in Myanmar and the time in Thailand. This can be the cause of a great deal of consternation as it is very difficult to keep track of the local time if one has become accustomed to the Thailand time zone.

For more information please see the Royal Thai Embassy website: here.

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17th October 2009

The law of trusts has been a component of the common law system for many years. Under the common law system the idea of title was bifurcated into legal title and equitable title. Under this system, one could hold legal title to real estate or property while equitable title was held by another. This made it possible to circumvent legal mechanisms such as probate or avoid certain types of taxation. Many Expats who originate in common law countries mistakenly believe that this concept can be applied in Thailand. Unfortunately, Thai law does not codify the idea of trust law and as a result business and property structures should probably not be based upon such concepts.

In England many years ago, two courts came about to deal with civil and criminal issues. At first there were the courts of law where cases could be heard. However, there were many instances where the courts of law could not effectively deal with some matters. Therefore, a Court of the King’s Conscience was established and certain cases were resolved in this “court of equity.” Trust law evolved from this bifurcation of equity and law. One could hold equitable title in the court of equity, but not hold legal title in the court of law. Often, the result was to the advantage of the holder of equitable title because it allowed him to enjoy the benefits of the property without the burdens of legal ownership (most notably taxation). In countries where the common law system became the law of the land, these principles of equitable and legal title were passed on. As a result, in many common law countries today, the idea of nominee shareholders is a commonly accepted method of maintaining control of a business or property interest. Also, controlling a trust that owns land is a common method of lawfully avoiding taxes.

In countries that did not adhere to common law principles, the notion of equitable and legal title is somewhat foreign and often not recogized as a legitimate method of property ownership. In Thailand, which utilizes a civil code legal system, trusts and equity are not regarded as mutually exclusive methods of property ownership. Although similar concepts such as usufructs, superficies, and escrows exist, for the most part Thailand does not recognize many equitable concepts. A case in point is the Thai view of nominee shareholders. Nominees are strictly forbidden under statutes passed by the Thai parliament (while the definition of nominee is left somewhat vague). Further, nominees are viewed with extra hostility where they are being utilized for the purpose of maintaining control of a Thai company to own land.

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13th October 2009

The authors have noticed an upsurge of those asking about how to go about replacing a lost passport while traveling in the Kingdom of Thailand. This post is a brief overview of what needs to be done when one loses their United States Passport in Thailand.

In order to receive a new passport one must go to the American Citizen Services (ACS) section of the United States Embassy in Bangkok, Thailand. This office is located near the Consular Section of the US Embassy, in fact the two rooms are adjoining once one is inside the compound. It is wise to first make an ACS appointment by going to the US Embassy website here

In many cases, people do not plan to lose their travel documents so making an appointment may not be feasible. The United States Embassy website provides the following suggestion:

“When traveling, please remember to carry a photocopy of your passport separately from your passport. In the event of loss or theft, the copy will help facilitate issuance of an emergency passport.”

For those thinking of traveling, keep the above quote in mind as it can save a great deal of time at the Embassy.

At one time, the American Citizen Services Section in Bangkok, Thailand was considered to be one of the worst for customer service when compared against its counterparts in the region. However, over the past 5 years, this office has done a great deal to improve customer service and efficiency. It is now a very customer-friendly office that provides fast effective service.  If an online appointment is set in advance then one could expect to be in and out in relatively short order, depending upon the service sought.

For those who lose their passport, they have the option of either applying for a new passport or applying for an emergency passport. Under limited circumstances, the Embassy will expeditiously issue Emergency Passports that have a very short validity period.

In order to obtain a new passport one will need to provide proof of citizenship such as a Naturalization Certificate, Certificate of Citizenship, a Birth Certificate, a Consular Report of Birth Abroad, or a Drivers License. Again, due to the likely unavailability of these documents it is always wise to have a copy of the previous passport.

Once the new travel document is issued, one needs to have their Thai Immigration entry stamps replicated in the new passport. Therefore, a trip to Thai Immigration will be necessary. For those with a long term Thai visa, the visa will need to be duplicated in the new passport.

For those in Northern Thailand, the American Citizen Services Unit at the United States Consulate-General in Chiang Mai also could assist with passport issuance. See their website here.

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11th October 2009

In a previous post, we discussed the initial submission of an application for a United States visa for a foreign loved one. In this post we will discuss what needs to be done in the event of a request for evidence from the United States Citizenship and Immigration Service (USCIS). After USCIS receives an American Citizen’s US Immigration application, they send out a receipt notice commonly referred to as Notice of Action 1, or NOA 1. In the vast majority of ultimately successful cases the Notice of Action 1 is followed by the Notice of Action 2 approval notice. However, there are cases where an adjudicating officer at USCIS requests further documentation. In most Requests for Evidence (RFE) the deficiency of evidence is based upon the fact that one or more of the documents was illegible. This is why clearly legible documentation should always be provided when submitting an application to USCIS.

In order to forestall receiving an RFE, many couples opt to retain an Immigration attorney to assist in the filing of a United States visa application. An experienced United States Immigration attorney can predict what the officers will wish to see in order to favorably adjudicate a petition. However, simply retaining an attorney will not guarantee that a Request For Evidence will not be made, but if an RFE is sent, then the attorney can handle it and deal with the documentary deficiency.

The RFE will specify which documents are either missing or illegible. After specifying the deficiency, the RFE will go on to state how the deficiency can be dealt with and the deadline the applicant and petitioner will have to remedy the problem by sending the requested documentation.

In a way, an RFE is similar to a 221g refusal from the United States Embassy. The reason these requests are similar is that both require that the applicant or petitioner provide further documentation before an approval will be granted. The major difference between these two requests is the fact that officers of the United States Department of State issue 221 g requests while officers of the United States Department of Homeland Security issue requests for evidence. In both cases, the documentation is requested usually in an effort to conduct due diligence to ensure that the Immigration benefit should be accorded to the beneficiary.

In K1 visa applications the adjudicating officer is usually requesting evidence that shows the bona fides of the relationship or the status of one of the parties. In K3 or CR1 visa applications, the officer is usually seeking evidence regarding the couple’s marital status or the status of the parties before the marriage occurred.

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10th October 2009

On this blog, we commonly make reference to Notice of Action 1 or NOA 1. In an effort to provide the most high quality repository of United States Immigration definitions for those seeking a US Visa from Thailand providing a brief overview of this official Immigration notice is required.

In many United States Immigration matters, particularly family Immigration cases from Thailand, the visa application must first receive approval from the United States Citizenship and Immigration Service (USCIS). This agency is one of many that reports to the Secretary of the United States Department of Homeland Security (DHS).

When a couple opts to apply for a United States visa, they often apply for one of the following categories: CR1 visa, IR1 visa, K3 visa, or K1 visa. The CR1, IR1, and K3 are all United States Marriage visas while the K1 visa is a fiancee visa. All of these visas require USCIS pre-approval before a visa interview can be set. Conversely the B1 visa, B2 visa, F1 visa, and J1 visa are all non-immigrant visa categories (that do not permit dual intent) and therefore do not require USCIS pre-approval. It should be noted that the non-immigrant visa categories are much more difficult to acquire for loved ones of United States citizens due to a provision in the United States Immigration and Nationality Act called 214b. This provision creates a legal presumption that must be overcome by the foreign applicant before the visa will be issued.

When a United States Citizen files for a K1, K3, CR1, or IR1 visa they first file an application at a USCIS Service Center. There are two USCIS Service Centers that accept applications for the aforementioned visa categories and the petitioner’s residence will determine where the application should be filed. The petitioner will send in the application and upon receipt, the USCIS Service Center will generate a receipt referred to as Notice of Action 1 (or NOA1). This receipt will note the names of the Petitioner and Beneficiary as well as the date of receipt and the date the notice was generated. The receipt will also show a case number.

For those who retain the services of a US visa lawyer, a copy of Notice of Action 1 will be sent to the attorney provided the attorney submitted a G28 form with the application. Before retaining an attorney it is wise to make certain that a G28 form will be submitted because it is important to facilitating efficient visa processing. Fake lawyers and so-called visa agencies cannot represent clients before USCIS so it may be wise to inquire as to the credentials of any proposed representative. Unfortunately, in the Kingdom of Thailand, there are many unauthorized services masquerading as licensed US Immigration attorneys.

The Notice of Action 1 should not be confused with the initial letter sent from the US Embassy Thailand. This letter is commonly referred to a Packet 3 and is sent at a later phase of the US Immigration process.

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