Integrity Legal

This author recently came across a discussion of the forecast of the Thailand property market in 2010. For those who are not up to speed on the Thai property market, the year 2009 was not a particularly buoyant year for those in the Thailand real estate sector. This may be due to the fact that the overall economy around the world was not particularly vibrant. That being said, there are optimists who believe that 2010 will be a better year for Thai property.

There has been some talk in and around government circles about reforming Thailand property law. Some believe that a reform of Thailand real estate law would provide more economic efficiency and make foreign buyers (particularly commercial buyers) more amenable to purchasing land in Thailand or other forms of property in the form of Thai condos or houses.

To quote the website ThailandPropertyNews.com:

“The initiative of this government to reform property and land taxation with a view to creating fairness sounds positive, but it will only be possible to determine the effect on the property market once the details of the proposed legislation have been finalised. “So long as the new tax legislation is on a fair basis and the tax rate not so excessively high as to discourage investment, CBRE sees this reform as beneficial for the market,“ Ms. Aliwassa Pathnadabutr, Managing Director of CBRE Thailand said. An additional measure that CBRE urges the government to consider is the extension of the long lease term from the current 30 years up to a maximum of 90 years. This will help improve the market mechanism and make large-scale commercial projects viable which would not be feasible if such developments were freehold due to the high land cost or if they were on a 30-year lease due to the limits on lease terms. The extension of the lease term will also have a direct benefit for resort destinations such as Phuket and Samui where the property markets are primarily driven by foreign demand.”

It is interesting to note that some feel that an easing of the legal restrictions placed upon Thai leases would be a net benefit to the Thai real estate market. Currently, the Thai Civil and Commercial Code places restrictions upon the length of time that a Thai lease will remain enforceable in Thailand. There are exceptions, but currently, the enforceability period is 30 years or less. Providing foreign buyers with the option of obtaining a 90 or 100 year lease might cause an increase in demand for Thai property. It will be interesting to see how the government deals with these issues and what impact any legislative changes will have upon the Thai real estate market.

The issue of extradition is becoming more important as the world becomes increasingly “small” thanks in part to technology and the movement towards globalization. In a global environment, legal issues are becoming increasingly international as people are leaving their home countries and taking up residence in countries abroad. In order to understand extradition we need to understand how the international legal system operates when it comes to the issue of dealing with individuals who have warrants or arrests in multiple jurisdictions.  First we need to define what “extradition” means as it can have a significant impact upon individuals throughout the world.

The online informational resource wikipedia.com defines Extradition as follows:

“Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal. Between nation states, extradition is regulated by treaties.”

This leads to the question: If extradition is the process of surrendering foreign criminals to another nation, then how do countries determine when it is appropriate to extradite individuals? This can be incredibly important as activities which are considered criminal in one jurisdiction may be considered legal in another. To further quote wikipedia:

“The consensus in international law is that a state does not have any obligation to surrender an alleged criminal to a foreign state as one principle of sovereignty is that every state has legal authority over the people within its borders. Such absence of international obligation and the desire of the right to demand such criminals of other countries have caused a web of extradition treaties or agreements to evolve; most countries in the world have signed bilateral extradition treaties with most other countries. No country in the world has an extradition treaty with all other countries…”

Extradition Treaties represent the agreement between two countries regarding the procedure for dealing with those individuals who have a criminal warrant or conviction in one of the nations that is a party to the Treaty. The Kingdom of Thailand and the United States of America have an Extradition Treaty. To quote the American State Department’s website:

“There is a bilateral treaty on Extradition in force between the United States and Thailand, 11 Bevans 1008, 43 Stat. 1749 (1924) and Treaty relating to extradition signed at Washington December 14, 1983, entered into force May 17, 1991. There is a treaty on transfer of prisoners “Treaty on Cooperation in Execution of Penal Sentences” signed at Bangkok October 29, 1982, entered into force December 7, 1988.”

From a practical standpoint, the existence of an Extradition Treaty does not necessarily mean that those with arrest warrants, convictions, or fugitive warrants in the USA will be automatically picked up, arrested, and extradited by authorities in Thailand. Instead, this is unlikely as the Thai authorities do not have direct access to the databases that contain US criminal warrant information. However, recently the Thai immigration authorities have announced that they are taking measures to streamline their information gathering process when it comes to foreign nationals. Authorities in Thailand hope to be “plugged in” to US law enforcement databases soon.

Another issue with regard to US warrants involves US passports as Consular Officers at the American Citizen Services Section of the US Embassy in Bangkok may confiscate an American’s passport if they have outstanding US warrants. In such a scenario, the American would likely be accorded an opportunity to willingly return to the USA.

This author has been increasingly asked about the impact of recent political demonstrations upon those living in Bangkok. From personal experience, this author must admit that the demonstrations have had little or no impact upon living conditions in Bangkok. That being said, it appears that the recent protests are having an effect upon the Thai tourist industry.

In a recent posting on Thaivisa.com the issue of the protests and the detrimental effect they are having on the Tourism industry was discussed:

“The Thai Hotels Association said Thursday that room cancellations in Bangkok have been made at about 1,000 rooms per day, although the Tourism Authority of Thailand (TAT) has assessed Red Shirt demonstration in the capital has not had a great impact on tourism so far. Thai Hotels Association director Sakrin Chorsawai said the demonstration has affected tourism operators, particularly in hotel businesses in Bangkok. A significant drop in the number of foreign tourists was seen and room reservations fell some 10-20 per cent. About 1,000 rooms were canceled daily on average as tourists feared possible violence during the mass demonstrations, in particular from March 12-23, Mr Sakrin said. However, tourism operators in other regions have not been affected, and are enjoying a normal rate of hotel bookings, he said. Local tourists, who are worried about the political situation, do not travel. If the demonstration is prolonged, its negative effects on tourism will be clearly seen, said Mr Sakrin. Meanwhile, TAT director Surapol Svetasreni said the tourism in January and February had recovered but since the Red Shirt protest began in Bangkok last week, the national agency is vigilant on the current situation to alleviate and to minimise possible effects on tourism. TAT’s promotional campaign this year still focuses on overseas roadshows and targets the number of foreign tourists at 15 million people in 2010.”

Although room cancellations may be attributable to the protests, this author believes that other factors may explain the recent downturn in Thai tourism overall. In a previous post, it was noted that the free Thai tourist visa scheme had come to an end. Subsequent to that posting, it was reported that the Thai visa fee waiver would go back into effect for Tourist visas beginning on April 1st of 2010. However, this left a window of about one month in which Thai tourist visas would not be granted free of charge. There is a possibility that some of those planning to tour Thailand are awaiting the re-institution of the free tourist visa scheme. This is mere speculation on the part of this author, but it may be the case.

For more information about Thai Immigration generally please see: Thailand visa.

The authors of this blog keep a close eye upon pending legislation in both the Kingdom of Thailand and the United States of America. Vigilance must be maintained in order to be fully aware of all of the current Immigration policies, procedures, rules, regulations, and laws in both countries. This blog has repeatedly reported on issues involving same-sex couples seeking United States Immigration benefits as this poses one of the most politically pressing and legally confusing issues of United States Immigration at this time.

Currently, the United States Congress is debating legislation that would attempt to tackle some of the major problems in the area of US Immigration. Recently a bill was introduced that would reform current American Immigration law with regard to refugees. Some feel that an even more pressing piece of legislation is that which would provide comprehensive immigration reform in the USA.

Same Sex Immigration issues have been dealt with in separate proposed legislation called the Uniting American Families Act (UAFA), but there are those who hope that a Comprehensive Immigration Reform bill will eventually include immigration benefits for same sex couples. A very popular website and blog, Immigration Equality.org, has been posting updates regarding the situation in Washington D.C. where marchers will be falling upon the US Capital to demand Comprehensive Immigration Reform legislation. Most notable, is the fact that among the marchers LGBT rights activists are campaigning for equal rights in the US immigration process. To quote Immigration Equality’s blog directly:

“In the midst of the tens of thousands rallying for reform, a contingent of 300 to 500 people will on hand, with rainbow flags in hand, to bring attention to the struggles of lesbian, gay, bisexual and transgender (LGBT) immigrants and their families. And before they set their first foot on the grassy lawn off Constitution Avenue, their presence is already being felt and making change.”

The blog added a personal touch to its report of this demonstration:

“[Laurie] Larson will be marching with the Immigration Equality contingent in honor of her close friend Steve – an American citizen – whose partner of nearly a decade, Joe, was recently forced to leave the country after losing his job and, by extension, his work visa, too. Had Steve been in a heterosexual relationship, he could have married his partner and they would have qualified for residency. But because Steve and Joe are both male, that option doesn’t exist for them. Under current U.S. immigration law, Steve cannot sponsor Joe for residency simply because they are gay.”

The idea that an American Citizen, who could legally marry a foreign national of the same sex in some US jurisdictions, cannot obtain a US family based visa for their same sex loved one definitely smacks of inequality where the same American could petition for visa benefits for their loved one if the loved one was of a different sex. That being said, these issues have yet to be played out and there are some who believe that the issues of same sex family based immigration will likely be dealt with in the US Courts as the Defense of Marriage Act‘s (DOMA) constitutionality is currently being challenged by the Commonwealth of Massachusetts.

For information on US Immigration in general please see: US Visa Thailand.

Although delicate, the issue of prostitution in Thailand and the impact upon United States Immigration is something that an American Immigration attorney in Thailand should discuss, if for no other reason than the fact that there is a great deal of misinformation about this topic throughout the internet.

First, the relevant law: The United States Immigration and Nationality Act §212(a)(2)(D) has the following to say on the topic of inadmissibility and prostitution:

(D) Prostitution and commercialized vice

Any alien who—

(i) is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status,

(ii) directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10-year period) received, in whole or in part, the proceeds of prostitution, or

(iii) is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution,

is inadmissible.

It should be noted that legality is not an issue when it comes to prostitution as even a legal act of prostitution is a legal ground of inadmissibility from the United States of America. In the US State of Nevada, prostitution is legal provided the brothel has a license and comports to certain regulatory rules with regard to health and advertising. However, the act of prostitution itself is not illegal under in Nevada so long as the prostitute works in a licensed establishment. Regardless of the fact that the act may be legal, the Immigration and Nationality Act still makes the act a legal grounds of inadmissibility if it occurred within 10 years of the application for admission to the United States of America.

This seemingly glaring disjunction is the result of the American doctrine of Federalism. In the US, there is one sovereign in the form of the Federal government and 50 sovereigns in the form of the 50 US states. It is possible that State and Federal law will occasionally conflict. For Immigration purposes, the Federal regulations and statutes are controlling over state law. Therefore, regardless of the fact that an act of prostitution may be legal in a US state, it may still be a legal grounds of inadmissibility if it occurred within 10 years of an application for admission to the USA.

In Thailand this is important to note because prostitution is only vaguely defined in criminal statutes. Under the provisions of the Thai Prevention and Suppression of Prostitution Act of 1996 the definition of prostitution is defined as:

“‘prostitution’ means sexual intercourse, or any other act, or the commission of any other act in order to gratify the sexual desire of another person in a promiscuous manner in return for money or any other benefit, irrespective of whether the person who accepts the act and the person who commits the act are of the same sex or not…”

The obvious problem with this definition is the phrase “in a promiscuous manner.” Authorities in Thailand seem to operate under the assumption that acts of prostitution occurring in private are not promiscuous and therefore do not meet the legal definition of prostitution. The United States immigration authorities do not take this view and their view of prostitution falls in line with the more traditional definition which mandates finding of previous engagement in acts of prostitution if the individual in question was paid in exchange for providing sexual gratification.

If a Consular Officer at a US Embassy or US Consulate abroad finds an alien inadmissible because the alien has engaged in prostitution within 10 years of filing an application for a US visa, then the alien will not be able to obtain a US visa, nor will they be allowed to enter the United States of America. This decision is not subject to appeal.

What is the solution if an alien is found inadmissible based upon a finding that they have engaged in prostitution within 10 years of applying for a US visa? Fortunately, the Immigration and Nationality Act provides a remedy for those who are found inadmissible under these circumstances. An I-601 waiver may be filed with USCIS and if approved, the alien will be able to seek admission to the United States of America.

Throughout the internet there are those who claim that the best way to avoid this issue is to lie to a Consular Officer or “omit certain facts.” This practice is highly inadvisable. First, it is illegal and in some cases punishable by five years in a federal penitentiary and a $250,000 fine. Second, it could lead to further problems for an alien because lying to a Consular Officer could result in a finding that the alien had engaged in fraud and misrepresentation which is a separate ground of inadmissibility. Third, such advice is highly unethical and reflects adversely upon anyone who advises a client to lie to a Consular Officer or in a visa application. Run, don’t walk, away from anyone who gives this kind of advice as it is unethical, illegal, and could result in a permanent bar to entering the United States.

Our firm’s policy is to disclose all legally relevant facts and deal with the legal consequences in a straightforward manner.

For More Information Please See: US Visa Thailand.

Recently, this author came across an announcement that a new refugee bill was introduced in the United States Senate. Senator Patrick Leahy, a Democratic Senator from the State of Vermont, introduced the “The Refugee Protection Act of 2010.” The provisions of the Act would supplement the Refugee Act of 1980.

In another recent announcement the American Immigration Lawyers Association (AILA) discussed the ways that the proposed bill will improve conditions for American refugees. The following list of improvements was quoted directly from the AILA website:

“Increased Protections for Asylum Seekers:

• Eliminate the requirement that asylum applicants file their claim within one year of arrival.
• Protect particularly vulnerable asylum seekers by ensuring they can pursue a claim even where their persecution was not socially visible.
• Ensure fair process by requiring an immigration judge to give notice and an opportunity to respond when the judge requires corroborating evidence of the asylum claim.
• Give an applicant the opportunity to explain and clarify inconsistencies in a claim.
• Enable minors who seek asylum to have an initial interview with an asylum officer in a non-adversarial setting.
• Allow the Attorney General to appoint counsel where fair resolution or effective adjudication of the proceedings would be served by appointment of counsel.

Reforms to the Expedited Removal Process:

• Require the referral of asylum seekers to an asylum officer for a credible fear interview, and, if credible fear is found, for an asylum interview.
• Authorize the United States Commission on International Religious Freedom to conduct a new study on the effects of expedited removal authority on asylum seekers.

Parole of Asylum Seekers:

• Codify the current DHS policy that asylum seekers be considered for release (“parole”) and requires DHS to issue regulations establishing criteria for parole.
• Establish a nationwide, secure “alternatives to detention” program.
• Require changes in the immigration detention system to ensure asylum seekers and others have access to counsel, medical care, religious practice, and visits from family.

Terrorism Bar to Admissibility:

• Modify definitions in the statute to ensure that innocent asylum seekers and refugees are not unfairly denied protection as a result of the material support and terrorism bars in the law, while ensuring that those with legitimate ties to terrorist activity will continue to be denied entry to the United States.

Protection for Refugees and Asylees:

• Eliminate the one-year waiting period for refugees and asylees to apply for a green card.
• Allow certain children and family members of refugees to be considered as derivative applicants for refugee status. All such applicants must pass standard security checks.
• Authorize the Secretary of State to designate certain groups as eligible for expedited adjudication as refugees.
• Prevent newly resettled refugees from slipping into poverty by adjusting the per capita refugee resettlement grant level annually for inflation and the cost of living.”

How this bill fares in the Senate remains to be seen, but one can hope that some new measure of protection will be accorded to foreign refugees seeking asylum in the United States of America, particularly in the context of expedited removal as this can cause a great deal of suffering for many of those trying to get into the United States in order to flee persecution.

United States Immigration for Refugees is a major concern in Southeastern Asia as there are many displaced ethnic and religious groups throughout the region. In most cases, refugees come from countries such as Burma or Laos, as Thailand sees few refugees departing for America. For further information regarding American visas from Southeast Asia and Thailand specifically please see: US Visa Thailand.

Many people ask this author: Why do I need a Thai work permit? There is a common misconception that the Thai Labor and Immigration authorities take a lax stance with regard to unauthorized employment. Many others labor under the misconception that a Thai visa, particularly a Thai business visa, confers the right to work in Thailand. Unfortunately, many people believe that the Thai “mai pen rai” (no worries) attitude extends to those working illegally in the Kingdom. This is simply untrue as Thais view unauthorized employment as a serious violation of Thai law.

In the United States, the expansion of some of the powers of the Department of Homeland Security has resulted in the relatively new phenomenon of Federal agents raiding businesses in search of those aliens working illegally. Operations such as this fall under the mandate of agencies such as the Immigration and Customs Enforcement (ICE) Service. In the Kingdom of Thailand, the Immigration and Labor authorities are not nearly as sophisticated as their counterparts in the United States of America, but they seem to take their jobs no less seriously.

As a case in point, recently the Pattaya Daily News website is reporting the following:

“A Briton, who was working illegally as a bar cashier at a beer bar in Pattaya’s Walking Street, was arrested by Immigration officials and will be prosecuted under the terms of the Immigration Act dealing with offending aliens.”

A long term expatriate in Thailand would not be greatly surprised by this announcement as most long term residents are used to some of the more draconian measures that are sometimes taken with regard to unauthorized employment in Thailand. With that said, compared to the United States, the Thai authorities are generally fairly lenient on most immigration matters, but there are exceptions and unauthorized employment can be problematic for the person working illegally. To quote the aforementioned website further:

“Pattaya, March 17, 2010, [PDN]: at 1am this morning, a team from Chonburi Immigration Office (which has recently amalgamated the respective Immigration departments of Pattaya and Chonburi), led by Superintendent of Immigration, Police Colonel Athisavis Kamolruth, surrounded [a bar], located [on] Walking Street, as it had come to their notice that there was at least one foreigner working there illegally, without a work permit…The team duly identified themselves as officers of the Immigration Police and asked for [the foreigner's] passport and work permit. When he was unable to produce a  work permit, the Immigration Police took him to the Chonburi Provincial Immigration Office at Jomtien for further questioning...He was duly cautioned that as an alien, temporarily in the kingdom, he was not allowed to work and would be prosecuted for having contravened the law.“

One aspect of this article that is interesting to note is the fact that Immigration agencies in Chonburi are consolidating and it would seem that by doing so they are becoming a more dynamic organization with an eye toward better enforcement of Thai Immigration and Labor laws.

For further information about Immigration to Thailand please see: Thailand visa.

For regular readers of this blog, it is probably no surprise that some of the most recent USCIS Service Center processing time estimates are being put up as a courtesy to readers and the immigrant community at large. However, we have begun adding other visa category processing time estimates as there may be those in Thailand interested in either the L1 visa for intracompany transferees or the E2 visa for those trading in the United States under the US-Thai Treaty of Amity.

The following are the processing time estimates from the California Service Center as of January 31, 2010:

The following are the processing time estimates for the Vermont Service Center as of January 31, 2010:

Please note that these estimates are for USCIS processing only and do not include processing time for an application at the National Visa Center or at the US Embassy or US Consulate that will ultimately adjudicate a foreign national’s visa application. Please be advised that recent changes implemented by NVC may have a dramatic impact upon the overal K3 Visa process, but these policies should not effect the processing of a K1 visa.

For information about assisting a loved one with US visa obtainment please see: Thai Girlfriend Visa.

Many people contact this author in order to ask questions about the United States Immigration process. Sometimes, a question becomes so common that I feel the need to post an article about the subject on this blog. The question that has been recently posed with great frequency is: Can I get my Thai girlfriend to the United States on a US tourist visa? Strictly speaking, yes, but this answer needs to be highly qualified. Anyone who is approved for a US tourist visa can go to the United States and request admission, but obtaining approval of a US tourist visa application can be difficult for the boyfriend or girlfriend of an American Citizen. The difficulty arises under the provisions of the United States Immigration and Nationality Act.

Pursuant to Section 214(b) of the United States Immigration and Nationality Act a Consular Officer at a United States Embassy or United States Consulate-General is required to make a presumption that a non-immigrant visa applicant is actually an intending immigrant unless they can prove otherwise. This, in turn, leads to a factual analysis by the Consular Officer. The Consular Officer must believe that the applicant has “strong ties” to their home country, or any other country outside of the USA, and “weak ties” to the United States. In many cases, the mere existence of a US Citizen boyfriend or girlfriend will mitigate against any “strong ties” abroad and lead to a visa denial under section 214(b). This reasoning on the part of US Embassy personnel should not be misconstrued as a personal denial. Instead, the officer is legally compelled to deny a tourist visa application if the applicant cannot overcome the presumption imposed by section 214(b).

Many people then ask the question: can this visa denial be appealed? No, although an applicant may ask for a tourist visa application to be reopened. That being said, in virtually all cases, the denial will be upheld. A Consular Officer’s factual findings are not subject to appeal based upon the doctrine of Consular Absolutism. However, a legal finding may be subject to reversal. With that in mind, one should recognize that a visa denial under section 214(b) is a factual determination and therefore not generally subject to reversal.

If a couple truly has a bona fide intention to marry in the USA and apply for adjustment of status, then a tourist visa is really not the correct travel document as it specifically precludes immigrant intent (unlike a dual intent travel document such as a K1 visa or an L1 visa). Therefore, if the couple wishes to marry and adjust status, then a Fiance Visa is a more appropriate travel document. However, the couple must have a truly bona fide intention to marry and not simply a pretextual intention in order to pursue US Immigration benefits.

For further information for about visas in general and the complex issues surrounding family based petitions please see: US Visa Thai Girlfriend.

On this blog, we have previously discussed the notion of Comprehensive Immigration Reform. Many people feel that the time has come for a complete overhaul of the American Immigration apparatus. It would seem that most groups in the United States feel that a change is necessary, but no one seems to be able to agree about what kind of change needs to occur. Recently, the American Immigration Lawyers Association (AILA) made their opinion known in a press release:

“The American Immigration Lawyers Association (AILA) welcomed President Obama’s announcement that his commitment to comprehensive immigration reform is unwavering and that he would proceed with an overhaul of the immigration system this year if he could attract necessary Republican support…”

The announcement went on to list the ways in which the organization hopes to see the United States Immigration system reformed:

“AILA believes any effective, long-term solution to the immigration problem must: 1) require the undocumented population to come out of the shadows and earn legal status; 2) ensure that American businesses are able to hire the workers they need to help grow our economy while protecting U.S. workers from unfair competition; 3) reduce the unreasonable and counterproductive backlogs in family-based and employment-based immigration by reforming the permanent immigration system; and 4) protect our national security and the rule of law while preserving and restoring fundamental principles of due process and equal protection.”

Another blog post promulgated on the AILA Leadership blog was somewhat more critical of the recent Presidential announcement:

“[N]ews that Senators Schumer and Graham met with President Obama about immigration reform would have been a whole lot better if they had all committed themselves to actually rolling up their sleeves and getting to the hard work of introducing a bill, rather than just talking about one.”

There seems to be a feeling among many conservatives and liberals that the Immigration reform process is not moving forward at all and any official discussion of immigration issues simply results in political rhetoric. To quote the AILA Leadership blog further:

“True, the President reaffirmed his “unwavering” commitment to comprehensive immigration reform. But he didn’t actually commit the Administration to doing anything about it at this time. Rather, Obama’s carefully worded statement made clear that he will not likely do anything about the broken immigration system until it is politically feasible. As it stands now Congress is embroiled in a nasty partisan fight over health care reform, and not likely to be receptive to an immigration overhaul as the November election nears.”

Many have asked why this blogger writes about CIR in the USA as it will likely have little practical impact upon those seeking US Immigration benefits in Thailand. This author feels that although the family-based immigration system is unlikely to see a great deal of change, Comprehensive Immigration Reform will probably have many repercussions for those processing a visa application from Southeast Asia. If nothing else, the delays caused by processing changes could have a dramatic impact upon the process as a whole.

For further information about US Immigration from Thailand please see: US Visa Thailand.