Integrity Legal

It has come to this author’s attention through the channels of Thaivisa.com that the Thai work permit fees are going up effective December 21, 2009. There is only a raise of the initial application fee as the approval fee has not be raised as of the time of this writing. To quote Thaivisa.com’s post about this issue:

“Per written announcement that we received this morning from Bangkok Work Permit Office, the APPLICATION FEE for work permits will increase, effective 21 December 2009 (next Monday) from 100 baht to 600 baht. This increase also applies to applications for changes/modifications of existing work permits. No increase to APPROVAL fees.  I have attached to this posting the Thai-language announcement memo from Bangkok Work Permit Office. I have reported everything that I know about this change.”

A Thai work permit entitles the bearer to legally engage in employment activities within the jurisdiction of the Kingdom of Thailand. Many people in Thailand are under the mistaken impression that a Thai business visa entitles the bearer to work authorization in the Kingdom. In point of fact, this is not the case as a business visa is only a travel document and only has an impact upon one’s ability travel to the Kingdom and request admission.

That being said, a Thai business visa can be used as one component of a well-founded work permit application. This is notable because not all Thai visas can be easily used as a basis for submitting a work permit application. Holders of Thai ED visas , for example, hold a Thai visa category that the Ministry of Labour will routinely deny for work authorization. This is due to the fact that this type of visa is not intended for employment purposes and therefore any employment that a foreigner undertakes on this visa must be substantially related to his or her school or University.

Thai O visas can support work permits, but work permit approval is highly dependent upon the reason for O visa issuance. If the O visa is issued because the foreign national is related to a Thai, either by blood or marriage, then work authorization is generally obtained rather easily. Meanwhile, if a foreign national obtains a Thai visa categorized as “O” simply because it is a long term visa, then it may be difficult to obtain work authorization.

Work permit issues are generally not a concern for those present in the Kingdom of Thailand on a Thai retirement visa because retirees are strictly barred from undertaking employment in the Kingdom. Therefore, a raise in work permit fees will probably not have an effect upon those present in the Kingdom for retirement purposes.

In a recent announcement posted on Thaivisa.com one individual renewing his visa in Thailand was taken aback by the fact that a Royal Thai Immigration officer wanted to test his knowledge of Thai before a Thai visa extension would be granted. To quote the posting directly:

“[I]went to pattaya/jomtien immigration today with all my paperwork to extend my ed visa (callen & walen) for the next 3 months. [A]ll ok on desk number 5 then she pass’s my paperwork to a desk behind her and moves me. [T]he lady starts talking to me in [T]hai, then tells me they are now testing applicants from there 2nd renewal onwards , ie after 6 months on a ed visa. [S]he stated my [T]hai was not up to scratch and that if i did not pass on the next renewal [I] would have my application refused next time. [S]he made it very clear they were now cracking down on ed visa applicants, not surprising really [I] guess with all the signs appearing claiming 1-10 year ed visa’s freely available.”

In recent years Thai ED visas have become extremely popular amongst those who wish to remain in Thailand for a long period of time without resorting “visa runs.” Many have speculated whether these visas would continue to be promulgated as easily as they have been up until this point. One of the popular reasons for obtaining such visas is based upon the applicant’s enrollment in Thai language classes. Until recently, Thai proficiency examinations were not required in order for foreign nationals to remain in the Kingdom on ED visas, but as the above quotation points out, this is no longer the case as Thai immigration officers seem to increasingly demand that applicants for ED visa renewal show some sort of proficiency in the Thai language.

A Thai visa classified as “ED” can be a useful travel document for a student in Thailand, but they are not particularly useful for those who wish to obtain a Thai work permit. Under current Thai immigration and labor regulations it is very difficult to obtain a Thai work permit if the applicant is present in the Kingdom on an ED visa. In some limited cases it may be possible to obtain a work permit on an ED visa if the work is in connection with the applicant’s school. For those interested in working or owning a business in Thailand it may be wise to apply for a Thai business visa as this document can be used, in conjunction with other documentation, as a basis for submitting a work permit application.

The K1 visa was designed to provide a means and method for foreign fiancees to travel to the United States of America in order to be reunited with their US Citizen loved one. It is commonly referred to as a Fiancee visa because that is this visa’s intended use. The major upside of the K1 visa is the fact that it has the fastest processing time when compared to marriage visas such as the K3 visa and CR1 visa. However, the K1 visa does require that the applicant adjust status to lawful permanent residence after entry in the United States. Generally, this process takes approximately 6 months from application submission until final adjustment decision.

An I-601 waiver is necessary for those who have been found inadmissible to the United States based upon one of the legal grounds of inadmissibility found under the provisions of the United States Immigration and Nationality Act. In Thailand, the two most common grounds of inadmissibility are the result of factual findings that the applicant engaged in prostitution within 10 years prior to the application’s submission or a finding that the applicant overstayed in the United States while present on a prior US visa.

Many pose the question: if My Thai fiancee is approved for one of the aforementioned waivers, will she need to ever deal with the issue again? The short answer: no. Once an I-601 waiver application is approved it is binding upon later proceedings. Therefore, if the Office of the United States Citizenship and Immigration Service (USCIS) in Bangkok approves a waiver application, then that holding based upon those facts will be respected by a local USCIS office adjudicating all later matters that have to do with the alien’s presence in the United States.

An example of how this can play out: a Thai fiancee is denied for a K1 visa based upon a legal grounds of inadmissibility, the case is forwarded to USCIS Bangkok pursuant to an application for an I-601 waiver, the I-601 waiver application is approved, the case is forwarded back to the Consulate at the US Embassy, the US Consulate issues the visa, the applicant travels to the USA, is lawfully admitted, marries the American Citizen fiance, and applies for adjustment of status. In this scenario, the prior waiver would be recognized during the adjustment proceedings and therefore the issue would likely not be re-visited. The major upside to a waiver being approved overseas is the fact that it provides certainty as to how the process will move forward and may also be beneficial because waiver issues will be put to rest outside of the jurisdiction in which the American Citizen resides.

When visa applications are submitted they process through the US Immigration system. The process depends upon the type of visa being sought. In situations in which applicants are seeking a K1 visa, K3 visa, CR1 visa, or IR1 visa the process is often routine, but many get through the entire process to find themselves confronted with a 221(g) refusal. AILA recently distributed an article dealing with this issue as it now has an impact upon those who utilize the Visa Waiver program and ESTA (the Electronic System for Travel Authorization) when traveling to the USA. To quote the publication’s section on 221(g) refusals:

“Section 221(g) of the INA provides for a temporary refusal when an otherwise qualified visa applicant is found to be lacking a specific document, or when a consular officer determines that additional security clearance is required. Consular officers beneficially use 221(g) as a way of affording applicants every opportunity to supplement their applications in order to address concerns – such as possible fraud – that arise at the visa interview. Once the deficiency is satisfied, or the concern resolved, 221(g) refusal is “overcome” and the visa may be issued.”

221(g) denials can truly be a boon to both the Consular Officer and the Immigration attorney as it provides a clear indication of what needs to be presented in order to facilitate visa issuance. That being said, Consular Officers can re-issue 221(g) refusals, but this rarely occurs as many officers seem to make a point of ensuring that all other documents are compiled before issuing an initial 221(g).

Many people wish to know information regarding common reasons for 221(g) refusal. AILA provides a brief overview of the common reasons for this type of denial. To further quote the aforementioned publication:

“1. The applicant is asked to provide additional supporting documents, such as proof of local employment;
2. The applicant is employed in a field listed on the Technology Alert List (TAL) and the consular officer requests a Visas Mantis Security Advisory Opinion (“SAO”). (This is one of the most common scenarios in which applicants in India, China and elsewhere are told their applications require “administrative processing.”)
3. The consular officer requests an Advisory Opinion from the Visa Office on the applicability of one of the statutory grounds of inadmissibility.
4. There are no empty visa pages in the applicant’s passport, or the application photograph does not meet quality standards.
5. The applicant’s petition approval is not yet listed in PIMS.”

In many cases, 221(g) refusals are routine and they usually do not have a detrimental impact upon travelers to the USA. However, in recent months it has been announced that the Customs and Border Protection (CBP) Service treats 221g refusals as denials when posing the question “have you ever been denied a visa to the USA” on the ESTA registration form. It would appear that the ESTA system “red flags” those who have been “denied” a prior visa and asks that some of these applicants receive an actual visa (in most cases a US tourist visa) before traveling to the USA which could cause delays to those wishing to enter the country.

Currently, the Kingdom of Thailand does not participate in the American Visa Waiver Program so this issue with CBP will have little impact for Thai nationals traveling to the United States. However, people in Thailand who hold the nationality of a country which participates in the Visa Waiver Program may be effected by this new regulation if they are presented with a 221(G) denial by a Consular Officer at the US Embassy in Bangkok.

Thailand has become a major epicenter of trade in Southeast Asia. The Kingdom also remains one of the most important trading partners of the United States of America, the European Union, and the United Kingdom. Many businesspeople who do business in Thailand must deal with restrictions imposed upon foreigners under the Thai Foreign Business Act. American Citizens enjoy some benefits under the provisions of the US-Thai Amity Treaty. This Treaty was promulgated in the mid-60′s. In Thailand, Treaties are considered the “law of the land,” and are considered superior to locally drafted legislation (this notion is similar to many of the ideas codified in the American Constitution, specifically the Supremacy Clause).  As the Amity Treaty is the “law of the land,” it supersedes the Foreign Business Act.

A Thai Limited Company certified under the provisions of the Treaty of Amity is a good vehicle for conducting business in Thailand, but the Treaty does have caveats and Companies conducting certain types of business cannot obtain Treaty Certification. Most importantly for some, Amity Treaty Companies cannot own land. Even though an Amity Company is accorded “National Treatment,” the company is barred from holding property in the form of Thai Real Estate. Although, technically it may be possible for an Amity company to purchase a Condo in Thailand.

Aside from ownership of Thai property, there are other activities which an Amity Company cannot engage in, such as: Inland Transportation, Communications, Fiduciary Functions, and the Practice of Professions. Each of these types of activity are reserved to Thai nationals and/or Thai Companies. Even still, the Amity Treaty provides American Citizens with the opportunity to own virtually 100% of a Thai company. For many types of businesses the Amity Treaty is a perfect solution to the problems imposed upon foreigners by the Foreign Business Act.

Some have postulated regarding the possibility of using American Citizens as nominees in order to obtain Amity Treaty benefits. This is basically impossible as nominee shareholders are illegal under current Thai law. That being said, delineating whether or not an American Company is “American,” could be difficult. The relevant agencies of the Thai Ministry of Commerce adjudicate Amity Treaty Certification applications on a case by case basis and come to a decision based upon the makeup of the corporate shareholders in question.

An Amity Treaty Certificate is somewhat similar to a Foreign Business License. However, the two documents are issued based upon different legal foundations. There are some US Immigration benefits accorded to Thai nationals under the US-Thai Treaty of Amity in the form of E visas, but there is not a direct counterpart found under Thai Immigration law.

J-1 visas are meant for those who are entering an exchange visitor program or traveling to the USA for the purpose of doing specific types of work (most notably: Au pair child care). This visa has been in existence for many years and the rules regarding issuance have not be modified in a long while.

Recently the American State Department has proposed making changes to the system whereby foreign nationals obtain the J1 Exchange visitor visa. The American Immigration Lawyers Association (AILA) has recently promulgated comments on the proposed changes in an effort to provide a different perspective to those who will ultimately pass these rules. In a recent press release AILA stated:

“We commend the United States Department of State (the Department) for acting on its goals to update and improve the Exchange Visitor Program through the first significant proposed rulemaking since 1993. We also recognize and applaud the Department’s efforts to increase overall program oversight, but we urge the Department not to do so at the risk of weakening the very foundation on which the J-1 program rests.”

Not everything in this press release was laudatory as the Association also noted that some of the proposed rule changes might actually undermine the original intent of the J1 visa legislation:

“[W]hile we recognize that the Department [of State] must demand accountability on the part of sponsors of the J-1 program, we fear that it has used the medium of this proposed regulation as a means of eroding the range and number of opportunities for young men and women to learn about our culture and return to share important skills and insights with their compatriots. AILA recognizes the major role that the Fulbright-Hays Act has played for nearly 50 years to instill trust and promote understanding, education, and training among people of dramatically divergent cultures and for the mutual benefit of our people as well as the people of nations struggling to achieve financial and
cultural independence. It is crucial that the full range of these opportunities continues to exist.”

The J-1 visa is an example of a valuable method not only for providing advanced education to foreign nationals, but also for spreading American culture and American ideas to other countries. Undermining this system of cross-cultural exchange would indeed be detrimental. However, the US State Department does have an obligation to investigate candidates and sponsors for J-1 Exchange Visitor visas in an effort to be certain that the visa is being issued for appropriate reasons and to appropriate applicants. Hopefully, the American State Department can find a proper balance whereby the security needs of American Citizens are protected while cross-cultural exchange is still facilitated. As with many non-immigrant visas, both the US Embassy in Bangkok and the US Consulate in Chiang Mai can issue such travel documents to applicants in Thailand.

After the tragedy of 9/11 many changes were made with regard to Homeland Security. Specifically, a Department of Homeland Security (DHS) was created and many tasks previously undertaken by other agencies were brought under the jurisdiction of DHS. One example is the United States Customs Service which was reincorporated into the Department of Homeland Security as the Customs and Border Protection (CBP) Service. This agency is responsible for patrolling the borders and ports of entry to the United States of America. They are also responsible for screening those who enter the United States of America either on a US passport, US visa, or US visa waiver. CBP plays an integral part in the US Immigration process.

Prior to this publication, there has been a rumor circulating that those who wish to enter the United States of America must fist obtain a vaccination for the H1N1 influenza vaccination. As a matter of fact, this is not true. Apparently this rumor is unfounded. AILA has provided a quote from a statement from the Customs and Border Protection Service:

“[United States] Customs and Border Protection would like to address rumors regarding U.S. entry requirements and the H1N1 virus: Travelers do NOT need to present proof that they received the H1N1 flu vaccine in order to enter the United States. No such vaccination requirement exists. Travelers are encouraged to visit the Department of Health and Human Services Flu Web site for current information on seasonal flu prevention, and the “Know Before You Go” section under the Travel tab of the CBP Web site for helpful traveler tips.”

For those seeking entry to the United States a flu vaccination is not required at this time.

In recent years CBP has been granted more and more authority to deal with real time situations. This leads many to wonder just how much authority CBP has. This is an interesting question as they are given major discretionary powers with regard to those seeking entry to the United States. For example, CBP is authorized to place foreign nationals into expedited removal (deportation) proceedings if they deem it necessary. One who has been removed through expedited removal could be barred from reentering the USA for as long as five years. That being said, this only seems to come up in the context of US Family Immigration when the loved one of a US Citizen is improperly using a US tourist visa for undisclosed immigration purposes. In situations such as this, CBP may feel it necessary to use expedited removal to send the subject back to their home country. Therefore it is usually wise to process things correctly and utilize the proper visa for a loved one traveling to the United States.

In a recent article disseminated by AILA, Mr. Brent Renison discussed issues involving the so-called “widow’s penalty” (or “Widow Penalty”) and how recent legislation has been enacted to end the imposition of penalties imposed upon foreign spouses in the event that their US Citizen or Lawful Permanent Resident spouse should pass away before the adjudication of an adjustment application or an application for a lift of conditions of lawful permanent residence. To quote the article:

“The “widow penalty”, whereby spouses of U.S. citizens and their children faced automatic denial of a visa petition if the death of the spouse occurred prior to adjudication and prior to two years of marriage, effectively ended upon the passage of § 568(c).2 That section removes the two-year marriage requirement from the current law that permits widows and widowers (“widow(er)s”) of U.S. citizens to file a self-petition for themselves and their children.”

It is still required that the American’s widow demonstrate that the marriage was bona fide when it was entered into:

“By removing the two-year precondition to a current statutory program, Congress retained the widow(er) self-petition procedure including the requirement to show a good faith marriage. The law does not alter the rights of widow(er)s who were married two years or more, who have been able to self-petition since 1990.”

The end of the Widow Penalty hopefully marks the beginning of more compassionate treatment of foreign widows of American Citizens. The aforementioned article goes further in its analysis of the new law and the impact it will likely have upon fiancees and spouses of US Citizens:

“The deletion of the two-year marriage requirement will allow a widow(er) who was married less than two years at the time of the citizen spouse’s death to file a Form I-360 self-petition within two years of the law’s passage, or within two years of the spouse’s death, whichever is later.”

It is interesting that this will likely have an impact upon those who enter the United States upon a K1 fiancee visa:

“This self-petition can be filed concurrently with an Application for Adjustment of Status to Lawful Permanent Resident (Form I-485) if the widow(er) is in the United States pursuant to a lawful entry.”

Therefore, if the fiance of a US Citizen enters the USA on a K1 visa, marries the US Citizen, and the US Citizen dies before the adjustment application is either filed or adjudicated, then it would now be possible for the fiance visa holder to self petition for adjustment in these circumstances. In this author’s opinion, this is an equitable and effective way of dealing with what is already a difficult issue.

If a lawful entry is all that is necessary, then the question must be posed: if an alien enters the USA on a valid tourist visa, marries an American who subsequently dies, would that alien be eligible to submit a self petition for adjustment of status? Hopefully these issues will be handled as the new law is brought into effect.

Wills are testamentary instruments used to state one’s intentions after one’s death. Generally Wills come up in the context of property distribution following an individual’s death. In Thailand, both foreign nationals and Thai Citizens die, leaving Thai property in the form of Thai Real Estate and/or assets. In many cases, the family of the deceased will read the Will, have it process through probate, and have the assets distributed in the manner set forth in the codicils of the Will.

A Living Will is a slightly different instrument. To quote Wikipedia:

“[The Living Will] was first proposed by an Illinois attorney, Louis Kutner, in a law journal in 1969^. Kutner drew from existing estate law, by which an individual can control property affairs after death (i.e., when no longer available to speak for themselves) and devised a way for an individual to speak to his or her health care desires when no longer able to express current health care wishes. Because this form of ‘will’ was to be used while an individual was still alive (but no longer able to make decisions) it was dubbed the ‘living will.’

A Living Will usually provides specific directives about the course of treatment that is to be followed by health care providers and caregivers. In some cases a living will may forbid the use of various kinds of burdensome medical treatment. It may also be used to express wishes about the use or foregoing of food and water, if supplied via tubes or other medical devices. The living will is only used if the individual has become unable to give informed consent or refusal due to incapacity. A living will can be very specific or very general. An example of a statement sometimes found in a living will is: ‘If I suffer an incurable, irreversible illness, disease, or condition and my attending physician determines that my condition is terminal, I direct that life-sustaining measures that would serve only to prolong my dying be withheld or discontinued.’”

The website Thaivisa.com, in conjunction with The Nation Newspaper, are reporting that the Thai government has preliminarily approved a proposal to allow living wills in Thailand:

“The Cabinet Tuesday gave the green light to living wills. Under the draft decree, health professionals will honour a dying patient’s wish to forego treatment during the terminal stage if it can only prolong life. The draft prepared by the National Health Commission Office will now go to the Council of State for review.”

It will be interesting to see how this legislation progresses through the various official agencies. Living Wills can provide a means and method for transmitting one’s wishes in the event of misfortune. This author hopes that this legislation will receive positive treatment by those with authority to change the law.

In most jurisdictions of the United States of America driving under the influence is considered to be a very serious offense. Commonly known as DUI (Driving Under the Influence) or DWI (Driving While Intoxicated) this offense often carries with it stiff fines and penalties. In Thailand, drunk driving is illegal as well, but in some provinces enforcement of the relevant law can be spotty at best. Thaivisa.com in conjunction with The Nation Newspaper are currently reporting that Thai police are increasing their efforts in enforcing drunk driving statutes. This will likely have a major impact upon drivers in the coming weeks as there are many holidays (both western and Thai) during the month of December. As one of the penalties for drunken driving is license suspension or revocation, a brief overview of the process to obtain a Thai driving license is also appropriate.

To quote Thaivisa.com:

“The government is imposing a strict law against drunk driving, under which violators will be arrested immediately and be subject to prosecution within 48 hours, a Bangkok seminar on road safety was told yesterday.A mandatory fine of between Bt5,000 and Bt20,000 will also be imposed on convicted violators, along with the drivers’ licence being suspended for six months or forever for repeat offenders, judge Prasong Mahaleetrakool said…The law will be strictly enforced during the holiday period.”

This author is happy to see the Thai law enforcement authorities taking an active role in discouraging drunken driving. Foreigners in the Kingdom of Thailand should take note of the possibility of license revocation. Obtaining a Thai driving license can be difficult for foreign national’s as a showing of residence in Thailand is required. Residence in Thailand can be difficult to prove for foreigners as many find it difficult to be registered on a Tabien Baan (House Registration Booklet). Foreign Tabien Baans are not easily issued which is likely due, at least in part, to the fact that many of the officers working at a Thai Amphoe Office (Civil Registrar’s Office) are unaccustomed to issuing them. That being said, registration on a Tabien Baan is not the only method of proving residence and once the foreign national demonstrates his or her residence is in Thailand, then it may be possible to obtain a Thai drivers license. In Thailand, separate licenses are issued for cars and motorcycles. This system is similar to most jurisdictions the USA except that Thai officers at the Transportation office actually issue these two licenses on two different cards rather that putting all of the information on one document.

Since driving while intoxicated could lead to the loss of a foreign national’s Thai driving license, it is both wise and prudent for a foreigner to refrain from drinking and driving in the Kingdom of Thailand. Foreign nationals should also note that a drunk driving offense could also lead to the loss of one’s Thai visa as Royal Thai Immigration authorities would probably take a dim view of one who violates the laws of the Kingdom while in the country on a Thailand visa. Those with a Thai fiancee who is the proposed beneficiary of a K1 visa would also be wise in explaining that a drunken driving charge may have an adverse impact upon her ability to obtain this fiancee visa as the US Embassy takes a dim view of criminal convictions when adjudicating visa applications.