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Archive for the ‘Thailand Business’ Category
25th November 2009
New Thai Work Permit Rules to Be Implemented in 2010
Posted by : admin
The Thai Ministry of Labour seems to be preparing for a major overhaul of the Thai work permit rules. Currently, Thai work permit regulations are relatively straightforward and the process is not particularly cumbersome. However, it would appear that new rules will be put into effect in the beginning of 2010. The following is a brief overview of the proposed rules and requirements.
Currently, there is a list of jobs that foreigners can and cannot engage in, an updated list of the types of employment which foreign nationals will be permitted to engage in will be promulgated on or before February 23, 2010. Pursuant to recent drafts of the updated Ministerial Regulations on the kinds of work that foreign nationals are permitted to engage in, these updated rules and will impact on currently valid work permits as they will be reevaluated upon extension.
The new protocols will force foreign nationals, when submitting a request for a work permit to be issued or renewed, to explain both the type of work (apparently, there will be between six and eight employment categories) and the actual job title that the foreign national will apply for.
Information regarding Ministry approved positions will not be available to the public as only officers at the Thai Ministry of Labour will have the list of approved positions. This list will be in an “internal guidebook,” which will only be distributed within the Ministry.
If a foreigner applies for a position that is not listed in the Ministry’s “internal guidebook,” the application will likely be denied. The foreign national may submit a new application but it will be placed under heavy scrutiny by the officers.
The sponsoring company’s business plan will also be required as well evidence showing that the company attempted to employ a Thai national in the position, but was unsuccessful in finding anyone to fill the role.
It should be noted that although these new rules will not have a direct affect upon one’s Thailand visa, failure to obtain a Thai work permit before one’s visa extension application is due could result in an inability to obtain a new visa extension and thereby cause the foreigner to fall out of status. For those staying in Thailand on a business visa, it may be wise to keep an eye upon the work permit rules as these rule changes will likely affect a foreigner’s ability to remain in the Kingdom in their current position. Those who own a company in Thailand should stay abreast of the rules as they could have a major impact upon a company’s human resources department.
24th November 2009
A License for a Foreign Owned Company in Thailand
Posted by : admin
Thailand is one of the major trading centers in Southeast Asia. As a result, many foreign nationals wish to conduct business in the Kingdom of Thailand. However, the Thailand Foreign Business Act precludes foreign ownership of Thai companies. Strictly speaking, foreign ownership is not technically illegal, but operating such a company for profit is against the law.
When we say, “foreign ownership,” we mean foreign majority ownership as foreign nationals are allowed to own a minority stake in a Thai company, up to forty-nine percent. If a Thai owns fifty-one percent of a company in Thailand, then that company is considered to be a “Thai Company.”
There are some who incorporate “Thai companies” that utilize so-called “nominee shareholders.” A nominee is one who owns shares in a Thai company on behalf of another. A nominee is not an “active shareholder,” in a company. Under current Thai corporate law nominee shareholders are illegal. However, defining what constitutes a “nominee shareholder,” can be difficult.
Thai law does provide for a way around the restrictions imposed by the Foreign Business Act. There are ways to license a Thai Company, with majority foreign ownership, to conduct business in Thailand.
On method of facilitating a foreign company to conduct business in Thailand is through a Foreign Business License. These documents can be difficult to obtain and the process for obtaining a Thai foreign business license can be very time consuming. Once granted the license will specify the exact nature of the business and the company will be precluded from conducting any other type of activity, unless another license is obtained.
Another method of facilitating foreign ownership of a Thai company is through the US-Thai Amity Treaty. As the name suggests, the US-Thai Treaty of Amity and Economic Relations is a bilateral agreement between the Kingdom of Thailand and the United States of America. A company certified under the terms of the Treaty is given “national treatment,” allowing it to operate in the same way as a “Thai Company.” The major exception being that an Amity Treaty Company is precluded from owning real estate in Thailand. Other types of Thai property could be owned by an Amity Company, such as a Thai Condo. Also, the provisions of the Treaty grant the aforementioned benefits exclusively to United States Citizens. Therefore, this method of certification is not for everyone.
The Australia-Thai free trade agreement provides some special benefits to Australians in Thailand as Australian Citizen may be allowed to own a majority stake in certain types of Thai companies.
A final method of licensing a foreign company in Thailand is through the Board of Investment or BOI. A BOI company can receive special benefits in the form of rights to operate and some BOI companies can own land. That being said, BOI companies are very difficult to incorporate and require a great deal of legal expertise to set up. BOI Companies are generally not advisable for those thinking of establishing a small Thai business. For large enterprises, such a setup may be advisable due to the fact that a Thailand visa and/or work permit is generally easier to obtain for a BOI company.
19th November 2009
Thailand Visa Run: Do I need another visa?
Posted by : admin
Although not a major topic on this blog, the visa run is an issue for many expatriates, or expats, in Thailand. There was a time when remaining in Thailand for a virtually indefinite period of time simply required a “visa run” or “border run,” once every thirty days. However, Thai Immigration regulations have been in a state of flux for approximately 5-10 years and one of the biggest changes was the end of the infinite 3o day visa exemption. Today, a foreigner will usually only receive a 15 day visa exemption at a land border in Thailand. This is unhelpful for those wishing to remain in Thailand for a long period of time as Thai Immigration officials require at least 21 days of lawful status to convert a Thai visa or extend a Thai visa.
The border run or “visa run” is still important for many as it is still required of one in the Kingdom on a long term multiple entry Thai visa. A one year multiple entry visa for Thailand provides the bearer with 90 days of lawful status per entry. In the case of the Thai business visa, business travelers often leave Thailand before their duration of stay has ended. However, in cases where the traveler must remain past 90 days he or she will need to leave the country and be stamped back in at a port of entry.
A common method of fulfilling this Thai Immigration requirement is through use of a land border. A very popular “border run” or “visa run” destination for those residing in Bangkok is Cambodia. Although currently their are some tensions with Cambodia that threaten to close the Cambodia border. At present, it would appear that the border will remain open. That being said, another issue arises. Namely, does one need a visa to enter Cambodia on their “visa run?” For most passport holders the answer to this question is: Yes. With the exception of ASEAN nations, most foreign passport holders need a visa to enter Cambodia. Currently the price of a Cambodian visa is $20 although this price could change.
Some border runners and visa runners opt to travel to other countries near Thailand as a method of fulfilling Thai Immigration requirements. Popular destinations are Burma (Myanmar), Laos, and Malaysia. Currently, Malaysia has a visa waiver program for most passport holders while Burma (Myanmar) requires a visa for those from nearly every nation. A Burmese visa can be obtained at the Myanmar Embassy in Bangkok. As to Laos, a visa exemption or visa on arrival is granted to most entrants when they are admitted to Laos at a port of entry.
Some opt to do their “visa run” using an airport. In this situation the visa runner needs to leave Thailand by plane and be stamped back into the Kingdom upon return. Malaysia has become a popular destination as the Royal Thai Embassy in Kuala Lumpur is popular for short term Thai visa applications.
Thailand visa rules can act as an inconvenience to many foreigners in Thailand, but through research on the current Immigration laws one can make the process as hassle-free as possible.
13th November 2009
USCIS to Accept Old G-28 Form “Until Further Notice”
Posted by : admin
In a previous post the issue of the G-28 Notice of Attorney Appearance was discussed. The United States Citizenship and Immigration Service had changed the form in order to update its contents to more accurately convey information regarding the exact nature of an attorney’s representation of a client before the various agencies under the jurisdiction of the Department of Homeland Security. Recently, this author has learned through the American Immigration Lawyers Association that USCIS will continue to accept the old form and will not reject an application simply for utilizing the previous form. To quote USCIS through AILA:
“U.S. Citizenship and Immigration Services (USCIS) announced today that the previous version of the Notice of Entry of Appearance as Attorney or Representative (Form G-28) will be accepted until further notice… On Oct. 1, 2009, USCIS announced the publication of a new Form G-28 and provided a 30-day grace period, until Oct. 30, for accepting previous versions at the USCIS Lockbox facilities or USCIS Service Centers. USCIS encourages attorneys and accredited representatives to use the new Form G-28, however, USCIS will not reject filings of the previous Form G-28 version until further notice. This will allow law students who represent immigrants to use the previous form until changes can be made to the form to accommodate their unique situation.”
As stated previously, the submission of a G-28 puts the United States government (in the form of the Department of Homeland Security, Immigration and Customs Enforcement, Cutoms and Border Protection, and the United States Citizenship and Immigration Service) on notice that an attorney has officially entered their appearance in the case.
Also a G-28 is an effective way of determining if one is dealing with an actual attorney or simply working with a “visa company,” “visa agency,” or phony unlicensed “lawyer.” Unless the government is willing to correspond directly with one’s attorney it may be wise to seek representation elsewhere because this is an integral component of the Immigration attorney-client relationship.
Each and every US Embassy or US Consulate is under the jurisdiction of the US Department of State and not the Department of Homland Security. Therefore, a G-28 has no bearing on these organs of government, but the US Embassy will correspond with an attorney in matters pertaining to a visa application if the attorney is licensed to practice in the USA. That being said, generally the Embassies and Consulates will not deal with unlicensed so-called “lawyers,” and as a result, such an individual can be of little assistance in processing US visa applications.
9th November 2009
Maintaining Visa Status for Permanent Residence in Thailand
Posted by : admin
Many long term expatriates in Thailand eventually begin to think about the possibility of applying for Thai Permanent Residence. As with many things in Thailand, acquiring Thailand Permanent Residence can be a very time consuming proposition and failure to maintain one’s Immigration status prior to the submission of a Permanent Residence application could result in major delays and frustration.
Although it can be somewhat simple to obtain a short term Thailand visa (Thai tourist visa, ED visa, etc), obtaining a long stay Thai visa can be extremely difficult in some situations. For many, obtaining a Thai business visa can be a daunting endeavor. Even more difficult is the visa extension process which requires a great deal of documentation for those who are seeking to extend a validly issued Thai business visa. For those who are staying in Thailand on a visa that is based upon a relationship to a Thai national, the extension process generally requires less documentation, but does require a showing of financial sufficiency.
The reason the extension process is mentioned above is due to the fact that it has a critical impact upon the Permanent Residence application. Under current Thai Immigration regulations a foreign national in Thailand must have maintained at least 3 years of unbroken visa status in Thailand in order to be eligible for Permanent Residence. This means that the foreigner needs to have had 3 visa extensions with no “gaps” of unlawful presence.
Maintaining said status for three years can be a difficult task particularly for those who are employed by multiple companies. One in this position must make certain that their visa status remains unbroken despite changes of employment and/or visa sponsorship. For the self-employed who own their own Thai Company and use it to maintain a Thai visa and work permit, this is less of an issue. Even then, one should keep a close eye upon one’s visa status.
A common question with regard to Thai Permanent Residence and prior visa status involves the Thai Reentry Permit. A Thai reentry permit allows a foreigner to leave the country and return while still maintaining the same visa status. If a reentry permit is obtained then lawful status can be maintained and so long as it is maintained for 3 or more years the visa holder may apply for permanent residence in Thailand provided the other requirements are met. If a visa holder does not return to the Kingdom to maintain their status they will fall out of status and subsequently become ineligible for Permanent residence.
2nd November 2009
Adding a Second Employer to a Thai Work Permit
Posted by : admin
In Thailand, any foreign national who wishes to be employed in the Kingdom must first obtain a work permit. Any Thai company that wishes to employ a foreigner must first meet certain requirements before the Thai Ministry of Labour will issue a work permit to a foreign national. Most notable among the requirements: any company employing a foreigner must have at least 2 million baht in registered capital (There may be exceptions for those with Thai Permanent Residence or an O visa based upon marriage to a Thai national). For the most part, employees in Thailand will only have one employer. However, sometimes situations arise where a foreign worker wishes to take up a second job. In this case a second employer will need to be noted in the work permit booklet.
There is a common misconception that a Thai work permit allows a foreigner to work anywhere in any capacity within the Kingdom of Thailand. Unfortunately, this is not the case, the work permit simply allows the foreigner to be engaged in the specifically noted activity stipulated in the work permit. Further, the work permit only allows the foreigner to be employed at the place of employment noted in the work permit booklet. Therefore, the address of the employer could be inferred as the only location where the foreigner is eligible to work.
Should secondary employment be sought by the foreigner, then it may be possible have another employer noted in the foreigner’s work permit. However, the first employer must agree to have a second employer noted therein. Further, the activity specified in the permit must be in conformity with the employment restrictions in the Thai Foreign Business Act. This legislation restricts foreigners from engaging in certain business activities in the Kingdom of Thailand.
The addition of a second employer should not have an impact upon the foreign national’s visa status in the Kingdom provided the original employer continues to meet the Thai Immigration rules regarding requirements for sponsorship of a Thai visa extension. Basically, the foreign national will continue to maintain one visa (sponsored by the original employer), but will have two work authorizations (one for the original employer and another for the secondary employer).
In a case where the original employment is ending, but the foreign national wishes to continue to reside in the Kingdom and work for what had been his second employer, a new Thailand visa extension could be issued if the foreigner quickly petitions for such an extension (it usually must be within 7 days) and the secondary employer meets the requirements for sponsoring a Thai visa extension.
28th October 2009
Thailand Marriage Registration to a Myanmar (Burmese) National
Posted by : admin
In Thailand, the method of executing a valid marriage is very different from the United States or other common law jurisdictions. A marriage registration is usually conducted at a local Amphur office (Amphoe office). In cases involving a Thai national marrying another Thai national, the process is very straightforward as the couple need only produce their identity documentation and house registration. However, in cases involving a foreigner and a Thai national, the foreigner must produce a great deal of documentation to prove that he or she is unmarried as well as legally free to marry. Depending upon the person’s home country, some or all of this documentation can be obtained either at the Embassy in Thailand or at offices in the person’s home country.
Two foreigners can also execute a lawful marriage in Thailand, but the registration of the marriage could take more time and require the filing of more documentation as neither of the prospective registrants are Thai citizens. Often, this situation has an easy solution as both parties deal with their home government which provides documentation proving that the prospective registrant is unwed and free to marry. In the case of Myanmar (Burma) this is not necessarily true.
Under the laws of the Union of Myanmar heavy restrictions are placed upon Burmese women who opt to marry non-Burmese people. One aspect of these restrictions that manifests itself often in US Immigration matters is the reluctance or refusal of the Burmese government to issue passports to female Burmese nationals seeking to marry a US Citizen either after issuance of a K1 visa or before issuance of a K3 visa or CR1 visa. The Burmese government’s intransience in these matters often results in difficult Immigration cases as the American government often requires a valid passport before a visa will be issued to a non-US citizen.
In Thai marriage registration cases, a similar problem arises as the Burmese (Myanmar) government, through the Myanmar Embassy in Bangkok, this post often refuses to issue affidavits showing the Burmese national as single and free to marry. Amphurs in Thailand require this document before they will execute a marriage between a Thai or a foreigner and a Burmese national. Therefore, failure to obtain this document results in an inability to marry in the Kingdom. Further, the execution of a marriage in Burma (Myanmar) is likely more difficult due to the statutory restrictions imposed upon Burmese women seeking to marry foreign men.
In situations such as this, it may be necessary to plan ahead and obtain passports and other documentation long before it may ever be necessary. Contacting a Bangkok lawyer or US Immigration lawyer may be beneficial as either of these professionals could advise about solutions to such problems.
One should note that Thai prenuptial agreements can be drafted for a marriage in Thailand, but the agreement must be registered simultaneously with the marriage in order for the agreement to be valid in the Kingdom.
19th October 2009
The US Embassy in Yangon (Rangoon), Myanmar (Burma)
Posted by : admin
The United States has a somewhat tenuous relationship with the Union of Myanmar (also known as Burma). This is due to the fact that Myanmar has been a somewhat isolated nation since the early 1960′s. Prior to that, the country was a colony of the British and briefly a member of the British commonwealth. Burma (Myanmar) has had a very turbulent history as there was once a great deal of factional infighting culminating in a takeover by military generals. The country has since been under a system known as “The Burmese Way Of Socialism.” According to those in power, the military authorities are holding power in a sort of trust until such time as the country is ready for democracy.
The United States maintains an Embassy in Burma (Myanmar) in the country’s capital Rangoon (also known as Yangon). Interestingly, the Embassy maintains a American Center which is in a different location from the United States Embassy and the US Consular section in Yangon. This situation is not, in an of itself, uncommon. For example, the Consular Services Section of the US Embassy Bangkok is located across the street from the Embassy proper, that being said, it is still relatively close.
The United States Embassy in Yangon, Myanmar (Rangoon, Burma) as well as the Consular Services Section is located at:
110 University Ave, Kamayut Township, Rangoon, Burma
The American Center in Yangon is located at:
14, Tawwin Road, Dagon Township, Rangoon, Burma.
The office hours of the Consular Services Section are: 8:00 am to 4:30 pm Monday through Friday. Except for holidays.
Unlike the United States Embassy in Bangkok, Thailand, the post in Myanmar is not headed by an American Ambassador, but is instead headed by a Chargé d’Affaires.
Those seeking to obtain United States visas for loved ones living in Burma (Myanmar) will likely process through the United States Consulate in Yangon. In many cases, Burmese Nationals residing in Thailand may be able to enjoy the benefit of having their visa processed through the United States Embassy in Bangkok or the US Consulate in Chiang Mai depending upon the US visa category and the Burmese (Myanmar) national’s place of residence.
That being said, meeting the requirements for Consular jurisdiction in Thailand can be difficult for those with Burmese (Myanmar) Nationality. In some cases a K3 visa may be beneficial for those who wish to ensure a visa application will be processed in a certain jurisdiction. However, careful research and possibly the retention of expert immigration counsel may be necessary to properly determine where a US visa application will be adjudicated.
17th October 2009
Are Trusts Recognized Under Thai Law?
Posted by : admin
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.
16th October 2009
Escrows in Thailand
Posted by : admin
In 2008, the Kingdom of Thailand passed legislation that made escrows legal. An escrow is a relationship where two parties contract with a neutral third party to hold funds until the completion of some specified condition. Since the enactment of this legislation, escrows have become increasingly common in the context of Thai Real Estate and Thai property transfers. The reason for this increased usage is due to the many benefits that both parties can receive from utilizing a Thai escrow agent.
The following is an example of how an escrow agent can be utilized in a situation where a foreign national wishes to purchase property in Thailand:
If a non-Thai national wishes to buy Thai property and hold the property freehold, then the options are limited. One of the most popular methods of purchasing Thai Real Estate is to buy a Thai Condo. Under the Thai Condominium Act, a foreigner can hold the Thai Chanote (or Title Deed) of a Condominium provided the Condominium Complex has 49% or less foreign ownership. Once the buyer and seller agree to a price the two parties can agree on an escrow agent and place the funds in the escrow agent’s care. The escrow agent will often agree not to disperse the funds until the parties agree to do so.
An escrow can be an effective way for buyers to be assured that there will be not fraud or misrepresentation in a property transaction. A common occurrence in Thailand involves property developers taking money for Real Estate construction and then failing to complete the project. Another, less common, tactic utilized by unscrupulous operators is to sell interests in property that the seller does not actually own. Using an escrow agent in tandem with a Thai property attorney to conduct due diligence can help ensure that a property buyer is getting what they pay for.
Until relatively recently, Escrow agents were not permitted to operate under Thai law. As Thailand does not have a common law tradition, the ideas of trusts and equitable title are not present within the provisions of the Thai Civil and Commercial Code. That being said, the government in Thailand understood the need to protect buyers and sellers from fraud. The need for “honest brokers,” to hold Thai property purchase payments was self-evident. The recognition of the need for escrows and escrow agents is a credit to the foresight of the Thai authorities. Hopefully, this marks the beginning of a trend toward more consumer protection laws to protect Thai property buyers.
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