Integrity Legal

With the end of the Emergency Decree in Thailand and the resumption of standard Thai Immigration protocols there have been a number of situations arising wherein foreign nationals are having an increasingly difficult time extending their Thai visa status. Those eligible opt to utilize the Thai O marriage visa as a method of maintaining status. One of the downsides of this type of Thai visa is the heightened scrutiny associated with this category as Thai Immigration officers are keen to expose “sham marriages” whenever and wherever possible.

Another issue, is the increasing difficulty associated with marriage registration in Thailand. It seems that post-COVID the process of registering a marriage between a foreign national and a Thai, or two foreign nationals for that matter, has become increasingly cumbersome. Furthermore, the overall time frame associated with processing registration of such marriages has increased rather dramatically. This is causing frustration for many foreigners seeking to marry a Thai and this is compounded by the complex nature of Thai O visa issuance associated therewith.

Meanwhile, these developments have ramifications for American Immigration as well. AS discussed many times on this blog, the process of obtaining an American tourist visa for a Thai national is nearly impossible due to the provisions of section 214(b) of the Immigration and Nationality Act. Application of this statute requires that consular officers be convinced that the applicant has demonstrated “strong ties” to Thailand, or another country which is not the USA, and “weak ties” to the USA. For many, this is not possible, especially in light of the doctrine of “Consular Absolutism” or “Consular Non-Reviewability“. An upshot to this is that many Americans opt to seek either a fiancee or marriage visa to the USA. In the past, the K-1 visa (the categorical designation for a fiance visa) was the fastest option to bring a Thai fiance to the USA. Since the end of the governmentally implemented lockdowns within the American immigration apparatus the fiance visa’s processing time has slowed substantially. This has lead many to seek lawful status via either the CR-1 visa or the IR-1 visa. It should be noted that while the K-3 visa remains a theoretical option for those seeking a visa for a spouse, as a practical matter this visa is not being issued with regularity. However, the issue with the CR-1 nd IR-1 categories is the fact that a couple must be married in order to be eligible for the benefit and with Thai marriage processing becoming more cumbersome, this method is not presently the most optimal. There may be options with regard to so-called “proxy marriage” in the USA, but this method presents its own set of problems as jurisdictional issues, timing, and consummation can prove nettlesome. It remains to be seen whether or not this situation becomes more tenable as the months progress. We will keep you updated on this blog as the situation evolves.

Tags: CR-1 Visa, CR1, IR-1 Visa, IR1, K-1, K-1 Visa, K-1 Visa Thailand, K-3, K-3 Visa, K1, K1 Visa, K1 Visa Thailand, K3, Marriage, Marriage Registration, O marriage visa, O visa, thai fiance, Thai fiancee, Thai O marriage visa, Thai O Visa, US Visa Thailand
Posted in Fiance Visa Thailand, National Visa Center, prenuptial agreement, US Tourist Visa, US Visa and Immigration | No Comments »

2022 was a very important year in Thailand. The pandemic in Thailand was deemed endemic and the emergency decree was ended. As a result, Thailand reopened to virtually unfettered tourism in the 3rd and 4th quarter of 2022. The impact upon the Thai Immigration apparatus was substantial. As of the time of this writing it remains possible to enter Thailand without vaccine documentation (although there was a brief moment when this was in question). Concurrently, under a present rule it is possible to enter Thailand in visa exempt status and receive 45 days upon arrival as opposed to the standard 30 days which was being issued prior to March of 2020.

The American Immigration system, meanwhile, appears, for all intents and purposes, to be getting more difficult to deal with. Much of the process is redundant and the National Visa Center seems to have an agenda to create the most an obtuse neo-Soviet system which results in a quagmire for anyone wishing to bring their spouse to the USA on a CR-1 visa or IR-1 visa. The K-1 visa process is not much better with people waiting for well over a year and a half to obtain K-1 visa and thereby be reunited with their loved one in the USA. Across the board, American immigration has never been quite as difficult to deal with as it is at this time, in this blogger’s humble opinion.

On a different note, there has been a major policy development in Thailand which seems poised to have tremendous legal and economic ramifications for Thailand. With the legalization of cannabis in 2022, Thailand quickly saw economic gains in terms of the business activity which quickly sprang up shortly after these developments were announced. The legalization of cannabis has created new opportunities in the Thai agricultural sector along with likely developments in the medical fields along with industry. Presently, the cannabis industry in Thailand remains largely unregulated, but there are hard and fast rules. Notably, those wishing the operate a dispensary in Thailand are required to obtain a controlled herb license. Such licensure is only available to Thai citizens. Foreigner nationals may have an ownership interest in a Thai company which operates in the cannabis space, but foreign ownership interests cannot be more than one third of the overall equity in the business entity. Foreigners are only allowed to make up one third of any corporate governance mechanisms in Thailand (i.e. corporate boards of directors). As a result, foreign participation in the Thai cannabis economy is likely to remain limited in the years ahead. That stated, the evolution of cannabis law in Thailand remains to be seen, but we will keep this blog updated on these topics moving forward.

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Posted in Thailand Business, Thailand Visa, US Visa and Immigration | No Comments »

Unlike the past two and a half years, border running in Thailand is again possible as Thailand reopens and allows tourism once again. As to the definition of a “border run” it may be best to quote directly from legal.co.th:

So in my mind, the Border Run is basically when someone hops over the border for example Cambodia, Laos, Myanmar, Malaysia, here in Thailand, they literally just hop over the Border. What you see a lot of down here in Bangkok, Pattaya area, sort of the eastern part of Thailand, you see a lot of folks run over the border to Cambodia. Literally they just hop the Border, they are there for a relatively short period of time, almost nominal period of time and then they hop right back into Thailand and then they get their status that way.

This definition is different from that of a visa run which is defined as:

Then there is what I think of as a Visa Run which is when one flies or you could drive but ultimately what is going on here is you are going to an Embassy, in this case a Thai Embassy and getting a new actual Visa, then coming back to Thailand.

Although border runs are again possible, those who do not use a visa agency or transportation service which specializes in border runs may find themselves unable to depart and return to Thailand in the same day.

Meanwhile, officials within the American State Department have noted that they are taking steps to decrease processing times for US visas. To quote directly from the State Department’s website:

As for many service providers, the COVID-19 pandemic forced profound reductions in the Department’s visa processing capacity in two main ways.  First, restrictions on travel to the United States, and local restrictions on public places like our overseas consular waiting rooms, curbed our ability to see visa applicants.  As most applicants are required by U.S. law to appear in person, these restrictions forced a reduction in the number of visa applications the Department could process.

Second, as revenue from the application fees that fund visa processing operations was cut nearly in half, the Department was forced to leave more than 300 overseas consular officer positions unfilled in 2020 and 2021.  This further reduced the number of visa applications we could process.

One method DOS appears to be using is waiver of interviews (this should not be confused with an I-601 waiver or an I-212 waiver). In certain nonimmigrant visa cases it may be possible to apply for, and receive, a visa without the need to physically be present in the interview:

During the pandemic, the Department of State coordinated with the Department of Homeland Security to waive in-person interviews for several key visa categories, including for many students and temporary workers integral to supply chains.  In addition, applicants renewing nonimmigrant visas in the same classification within 48 months of their prior visa’s expiration are now eligible to apply without an in-person interview in their country of nationality or residence.  This has already reduced the wait time for an interview appointment at many embassies and consulates.  We estimate 30 percent of worldwide nonimmigrant visa applicants may be eligible for an interview waiver, freeing up in-person interview appointments for those applicants who still require an in-person interview.

Actual case processing time remains far longer than prior to the second quarter of 2020 so the practical impact of these initiatives remains to be seen.

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Posted in Thailand Visa, US Embassy Thailand | No Comments »

Officials in Thailand are set to end the Emergency Decree on October 1. With the end of the emergency decree there are immigration implications. Most notably, beginning in October all present testing and vaccination requirements associated with entering Thailand will be rescinded. However, the end of the emergency decree does not necessarily entail all positive developments. Since March of 2020, Immigration officers in Thailand have had increased discretion regarding the issuance of Thai visa conversion. Under normal circumstances, the prevailing paradigm in Thai Immigration is that non-immigrant visa holders (or those holding an exemption) should leave Thailand and obtain a new visa, via a “visa run,” if they wish to have a different non-immigrant category. Following the inception of the emergency decree, and the issues associated with travel over the past 2 and a half years, Immigration officials had wider latitude to grant in-country changes of visa status. As travel is now less cumbersome, and therefore the capability of completing a border run is now restored, it seems likely that Immigration’s discretion to allow in-country change of visa status may evaporate.

All news is not necessarily bad, however, as October 1 will see an extension of the lawful status bestowed upon those entering Thailand in Thai visa exempt status. Until now, those traveling to Thailand and entering with a Thai visa exemption stamp have only been allowed 30 days of status. It was recently announced that such status will be extended to 45 days. Concurrently, those entering Thailand and obtaining a visa on arrival will be granted 30 days of status instead of the standard 15. Apparently, this measure is only temporary as this initiative is designed to spur tourism to Thailand during the upcoming high season. Whether this plan will have the desired effect remains to be seen.

October also ushers in a new insurance regime associated with the Thai O-A retirement visa, as opposed to the O retirement visa extension issued by Thai Immigration officials in-country. Those wishing to obtain or maintain a Thai O-A retirement visa will now need to show that they have at least 3 million baht in insurance coverage, or the equivalent amount of funds in a Thai bank account if a visa extension in O-A status is sought.

There are many who ponder whether the end of the emergency decree will also result in faster processing of certain US visas. It remains to be seen whether this development will have any appreciable impact upon the US Immigration process, especially Consular processing, but it stands to reason that this development could only operate to the benefit of those seeking immigration benefits for the USA.

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There have been a number of changes in Thailand in recent weeks, most notably: the Thailand Pass system (which has persisted since March 2020 with the creation of certificates of entry). This system has proven to be a major hindrance to the recovery of the tourism sector in Thailand. Many in Thailand and around the world are happy to see the end of the system. Another significant change in recent weeks has been the repeal of the mask “mandate” (a supposed requirement notwithstanding a lack of legal codification) requiring people to wear a mask even in outdoor public places. The repeal of this “mandate” will likely prove a boon to the tourism industry in Thailand as these requirements (regardless of their legal foundation) may have put off a number of prospective travelers to Thailand.

On the Thai Immigration front, there have been several announcements in recent weeks regarding the creation of the Long Term Residence, or LTR, visa in Thailand (a “residence” visa in name only as these proposed visas appear to be non-immigrant in nature although they confer a substantial portion of lawful status in Thailand, namely 10 years). There appear to be four subcategories to choose from for the prospective long term “resident” in Thailand. One category appears aimed at high net worth retirees, while another is for those who invest significant capital into Thailand, another seems geared to long staying professionals, and finally there appears to be a “digital nomad” LTR visa. However, September is the earliest that it seems such visas will be available. Concurrently, it is noteworthy that this new visa category is unlikely to be utilized by a broad segment of the expat population in Thailand, but actual usage remains to be seen.

All of this news comes on the heels of a general easing of rules regarding establishments’ opening hours in Thailand as tourists begin to trickle back into the Kingdom and enjoy the various entertainment venues the country has to offer.

On the United States Immigration front, the backlog of cases continues to cause relative delays in processing compared to times past. Many are waiting longer time periods to see visas such as the K-1 visa to be issued. Meanwhile, those seeking immigrant spouse visas, such as the CR-1 visa or the IR-1 visa are dealing with increasing delays due to the review process at the National Visa Center. Hopefully these issues will abate throughout the remainder of 2022, but such developments remain to be seen.

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Posted in Legal News, Thailand Visa, US Visa and Immigration | No Comments »

It has recently come to this blogger’s attention that the Thailand Pass, a system not unlike the US’s Electronic System for Travel Authorization (also known as ESTA), will remain in place for at least the immediately foreseeable future. To quote directly from Thai PBS World:

The Centre for COVID-19 Situation Administration (CCSA) will not scrap the “Thailand Pass” scheme, as has been widely anticipated, but will shorten the registration process for overseas tourists applying to enter Thailand as the “Test and Go” one-night quarantine scheme for the fully vaccinated is scheduled to come to an end on April 30, CCSA assistant spokesperson Sumanee Wacharasint said today (Thursday). Dr. Sumanee added, however, that when COVID-19 situation in the country steadily improves, the CCSA may consider further easing of restrictions. She explained that there are currently four steps in the “Thailand Pass” application process, namely checking of vaccination certification, checking of the evidence of advanced hotel bookings, checking of proof of insurance coverage while in Thailand, and proof of booking for RT-PCR testing…Meanwhile, Prime Minister Prayut Chan-o-cha will personally oversee preparations by all agencies to cope with overseas arrivals, once the “Test and Go” scheme ends on April 30, according to Traisulee Traisoranakul, deputy spokesperson for Government House today (Thursday).

The Thai Pass has proven to be an obstacle to seeing tourism fully recover in Thailand as many prospective tourists do not wish to undertake the process of getting a Thailand Pass issued. That stated, there is reason to be hopeful for the return of tourists to Thailand as a substantial amount of obstacles have been removed for both vaccinated and unvaccinated travelers wishing to gain admission to Thailand. Most notably, either of the aforementioned groups of travelers, with correct documentation, can now avoid the need to quarantine in a Thai hotel. This requirement, sometimes referred to as the Test and Go program, has been removed.

Notwithstanding recent announcements from the Biden administration regarding the desire to decease the Immigration case processing backlog, US visa cases are still processing in a relatively slower manner than they were prior to the pandemic. This seems to be especially true in cases where applicants are seeking immigrant spouse visas, such as the CR-1 visa and the IR-1 visa, for the USA. The National Visa Center seems to be a major sticking point in terms of overall processing time. For this reason, some prospective immigrants are opting to use the K-1 visa rather than an immigrant spouse visa in order to gain admission to the USA more quickly. Hopefully the situation will improve over the course of the rest of the year and we will update this blog accordingly.

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There are a substantial number of news stories currently noting the announced reopening of Thailand for a broad swath of tourists beginning November 1. To quote directly from the Bangkok Post:

Thailand will allow fully vaccinated visitors from low-risk countries to enter the kingdom without quarantine from Nov 1 as a key effort by the government to boost the economy. In a televised broadcast on Monday night, Prime Minister Prayut Chan-o-cha said he has instructed the Centre for Covid-19 Situation Administration (CCSA) and the Public Health Ministry to consider reopening the country to fully vaccinated tourists without quarantine on Nov 1. However, pre-conditions are that international visitors will need to show that they are Covid-free at their time of travel with an RT-PCR test undertaken before they leave their home country, and then have a test in Thailand…

Clearly the government seems intent upon reopening, but there are some who question whether Thailand will actually reopen on the date selected. Some have pointed out that the deadlines remains tentative. As of the time of this writing the regulations regarding entry to Thailand remain as they have been since April of 2021 for the unvaccinated traveling to Thailand by land, while vaccinated travelers coming by air have seen their quarantine period reduced to 7 days and the unvaccinated must now only quarantine 10 days. Meanwhile, there is also discussion about abolishing the certificate of entry in favor of a “Thailand Pass”. To quote again from the Bangkok Post:

The Ministry of Foreign Affairs and the Digital Government Development Agency are developing a new system to replace the certificate of entry (CoE) for Thais and foreigners who wish to enter the country through an airport. Tanee Sangrat, spokesman for the Foreign Affairs Ministry, said on Thursday a new web-based application called the Thailand Pass system, where people can gather information and upload documents, is being developed for the kingdom’s Nov 1 reopening. Mr Tanee said the Thailand Pass will replace the CoE system and facilitate the filing of an immigration form known as the TM6 and a health declaration form known as T8…

Although the new Thailand Pass will replace the certificate of entry, many of the attributes of this new system appear very similar to the COE system and it should be noted that for some travelers a certificate of entry may still be required. The analysis regarding who requires a certificate of entry to be admitted to Thailand and who can use the Thailand Pass will depend upon the specific facts in a given case.

As Thailand appears to be easing restrictions associated with inbound travel, backlogs in the American immigration system persist. Presently, it is taking an extremely long time, compared to times past, to secure an appointment for an American tourist visa interview. Concurrently, those seeking a K-1 visa or a K-3 visa for a Thai fiancee or spouse to travel to the USA are seeing interview appointments allocated with a decreasing frequency. Furthermore, appointments being issued through the National Visa Center for CR-1 visas and IR-1 visas for immigrant spouses are also increasingly scarce. Hopefully, these delays are temporary and we will see speedier processing of these cases sooner rather than later.

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The lockdowns in Bangkok and other highly populated areas of Thailand appear to be abating as it has recently been decreed that certain retail businesses may reopen while restaurants and other eateries may again serve dine-in customers from today onward. There seems to be an implication that further easing will be forthcoming, but we have seen that attitude before only to see things suddenly reverse. Hopefully, the business community in Bangkok and Greater Thailand has finally come through the worst of these rather stringent measures and things can move on.

Meanwhile, various destinations in Thailand are attempting to “Move On“. Notably, Phuket has implemented initiatives in the “Phuket Sandbox” program to allow travelers in that location to travel to other destinations after an initial 7 days on the island in the “7+7” program. Although this is definitely good news tourism numbers remain far below normal and therefore it remains to be seen how many people will actually avail themselves of this opportunity. The sandbox initiative has not garnered the tourism interest that many had hoped, but with high season coming this could change. It is worth noting that a number of non-immigrant Thai visa holders have availed themselves of the sandbox scheme as it is viewed as less cumbersome compared to dealing with 14 days of quarantine when traveling to other parts of Thailand.

It is notable that Thailand is one of the only jurisdictions in Southeast Asia which is permitting tourists to enter the country. Not to mention non-immigrant visa holders (most of whom were completely barred from reentry last summer). That stated, issues still arise for foreign nationals in Thailand as there are those who have problems either maintaining their status due to unforeseen work issues or no longer meet the requirements of their lawful status. Under such circumstances it is optimal to avoid falling into overstay and attempt to obtain a Thai visa conversion in order to remain in the Kingdom.

American immigration is not moving as quickly as was the case prior to 2020. That stated, things are moving more quickly compared to the situation in 2020. Although appointments for non-immigrant visas to the USA such as tourist visas are difficult to come by and even obtaining an appointment for a K-1 visa interview can be difficult. There are those who hope that a change in administration in the USA will result in concrete changes to the American immigration apparatus, but any improvements remain to be seen.

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It recently came to this blogger’s attention via the website of the US Embassy in Thailand that there is a new policy in place regarding the expired passports of US Citizens. To quote directly from the aforementioned website:

U.S. citizens may directly return to the United States with certain expired U.S. passports.

If you are overseas and your passport expired on or after January 1, 2020, you may be able to use your expired passport to return directly to the United States until December 31, 2021.

You qualify for this exception if all the following are true:

• You are a U.S. citizen.
• You are currently abroad seeking direct return to the United States.
• You are flying directly to the United States, a United States territory, or have only short-term transit (“connecting flights”) through a foreign country on your direct return to the United States or to a United States Territory.
• Your expired passport was originally valid for 10 years. Or, if you were 15 years of age or younger when the passport was issued, your expired passport was valid for 5 years.
• Your expired passport is undamaged.
• Your expired passport is unaltered.
• Your expired passport is in your possession.

You do not qualify for this exception if:

• You wish to depart from the United States to an international destination.
• You are currently abroad seeking to travel to a foreign country for any length of stay longer than an airport connection en route to the United States or to a United States territory.
• Your expired passport was limited in validity.
• Your expired passport is a special issuance passport (such as a diplomatic, official, service, or no-fee regular passport).
• Your expired passport is damaged.
• Your expired passport is altered.
• Your expired passport is not in your possession…

This is a major departure from standard procedures regarding American passports. Those keenly interested in this issue are advised to click the link above to read the entire announcement. Clearly, the United States Embassy in Thailand is attempting to provide solutions to Americans abroad who have seen their passports expire as the duration of the Thai government’s response to the COVID situation drags on. Although this is something of an “ad hoc” initiative the State Department’s policy is laudable as it creates flexibility for many Americans abroad who otherwise would be unable to return home.

Meanwhile, Thai Immigration policy continues to evolve. There has been significant progress made with regard to the proposed “Phuket Sandbox” initiative which, once implemented, would allow travelers to be admitted to Phuket, Thailand without being required to quarantine in their hotel for 14 days. However, there are been a number of developments in recent weeks which appear both positive and negative. For example, the following was noted in a recent article on ThaiVisa.com:

Over 50 percent of foreigners who had confirmed they would visit Phuket as part of the ‘Phuket Sandbox’ project have now cancelled their plans, Thailand’s tourism minister has said. Pipat Ratchakitprakarn, Minister of Tourism and Sports, told Spring News that after the Center for Economic Situation Administration (CESA) increased the minimum period of stay from 7 days to 14 days, 29,700 foreigners have now cancelled plans to visit Phuket. Under the Phuket Sandbox scheme, vaccinated foreigners do not need to be quarantined in a hotel room, but they are required to remain in Phuket before travelling to other provinces in Thailand…

The fluidity of regulations pertaining to the sandbox initiative seems to be alienating a number of otherwise interested travelers. Meanwhile, ThaiVisa.com went on to note that:

The Phuket Sandbox project, the launch of which is best described as chaotic, suffered another blow last week after it was announced that bars and pubs in Phuket would remain closed when the first tourists start arriving from July 1.

It seems immigration and quarantine policy are not the only obstacles standing in the way of substantial tourist numbers returning. It should be noted that the Phuket initiative has yet to be brought online so it remains to be seen if the “sandbox” plan will actually be implemented. It seems prudent to infer based upon comments from relevant Thai government officials that the sandbox program will be implemented. However, the popularity of such a plan remains to be seen. Presently, those arriving in other parts of Thailand, including Bangkok and Chiang Mai, are required to undergo 14 days of alternative state quarantine (ASQ) before being released. This quarantine pertains not only to foreign tourists, but also to those entering Thailand on non-immigrant visas such as the business visa, retirement visa, marriage visa as well as Thai nationals and permanent residents. The end date for quarantine enforcement in Thailand remains to be seen.

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The overall posture of American immigration has improved considerably since the beginning of 2021. With the transition to a new administration there have been a number of changes in how immigration cases are processed. As noted previously, the public charge rule has reverted back to pre-Trump criteria. Concurrently, it appears the current administration has rolled back a potentially disturbing policy regarding collection of biometric data from not only intending immigrants to the United States, but American petitioners and sponsors as well. Presently, there are a number of backlogs holding up cases at various points in the US immigration process. For example, processing times at USCIS are longer overall. Meanwhile issues at the National Visa Center are prolonging case processing. Finally, the US Embassy in Bangkok, Thailand has had to postpone a number of appointments citing the COVID situation. Although it seems the Embassy is prioritizing family based Immigrant Visa Unit matters over the non-immigrant visa unit as some level of priority seems to be conferred to cases such as applications for the K-1 visa (for fiances of America citizens) and the marriage visa cases (K-3, IR-1, and CR-1 visas). There does seem to be some hope on the horizon that things will start looking better as this administration does not seem as intent on being deliberately obtuse with respect to processing immigration cases.

Turning to Thai immigration news, the situation in Thailand has turned less positive since April and the upshot in an immigration context is the re-extension of the quarantine time in Thailand. As of the time of this writing, all travelers (including those vaccinated) arriving in Thailand are required to undergo a 14 day quarantine. On a more general note, Thailand remains under a state of pseudo-lockdown which is having a tremendously negative impact upon the SME sector. However, there is hope that things will begin to turn around as the COVID vaccination is rolled out in early June. Key officials in Thailand have also stood firm behind their commitment to reopen Phuket for the “sandbox” initiative in July. This is apparently still moving forward and, as yet, this doesn’t seem likely to be cancelled. That stated, many initiatives (such as “travel bubbles” or reduced quarantine) have been proposed and ultimately shot down or have been rolled out only to be rolled back. Therefore, it is difficult to predict exactly how things will progress moving forward in the course of the next few weeks, but hopefully these days ahead will be better than those recently transpired.

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