Integrity Legal

In the United States of America it is often necessary to obtain a marriage license before getting married. For those living in Thailand marriage can be a major issue and a commonly asked question is: do I need a marriage license before my Thai fiancee and I can execute a legal marriage in the Kingdom. Strictly speaking, a marriage license is not necessary, but there are certain formalities that must be met before a couple can be legally wed in Thailand.

In cases where a Thai wishes to marry a Thai, the process is relatively simple because the couple must simply go to their local Amphur office (also known as an Amphoe office or Civil Registrar’s office). Once the couple arrives at the Amphur they must present their Thai Identification cards and a marriage can be registered relatively quickly.

In cases where a Thai Citizen wishes to marry a foreigner (also known as a Farang in the Thai language), the requirements are somewhat more stringent. This is due to the fact that the foreign national must prove up his or her single status. This is usually done by traveling to the foreign national’s Embassy or Consulate. Generally, an Embassy or Consulate can provide documentation that proves the applicant is legally free to marry. For American Citizens, such documentation can be obtained at the American Citizen Services section of the United States Embassy in Bangkok or the US Consulate in Chiang Mai. Once this documentation is obtained it must be translated and legalized before the Amphur will accept it for marriage registration purposes.

Occasionally, two foreign nationals seek to register a Thai marriage. In cases such as this the couple must obtain the previously mentioned documentation proving single status. In a case where both parties are of different nationality, then different procedures may be required as two separate Embassies must be contacted. The requirements for obtaining documentation for a marriage in Thailand are not uniform. Each Embassy has its own protocols regarding what type of documentation it will issue and what supporting documentation must be submitted before the Embassy will certify an applicant as legally free to marry. With that in mind, those interested in registering a Thai marriage should learn what their Embassy requires to issue a single status affidavit.

To sum up, although Thai officials do not require a marriage license before a marriage will be registered, they do require that the parties prove that they are both free to marry. Proving this can be difficult for some foreign nationals as each Embassy has their own rules for issuing affidavits of single status.

On a related note, those wishing to execute a Thai prenup should register it and the marriage simultaneously. Otherwise, the Thai courts may later refuse to recognize the agreement in the event of divorce.

In recent months, the former Prime Minister of Thailand, Thaksin Shinawatra, has been in the news as he evades requests for extradition from the Kingdom of Thailand. The website Thaivisa.com is reporting the following:

“Thaksin’s name in passports issued by Nicaragua, Uganda and Montenegro has been changed to “Takki Shinegra,” he said. The Thai government has revoked Thaksin’s diplomatic passport issued during his premiership. He was believed to have an ordinary Thai passport. Some African countries have issued him a special passport to facilitate his travels and his visit to the countries. [Vice Foreign Minister] Panich said Thaksin’s new name may cause problem for Thailand’s attempt to bring him back to face two-year jail term on charge of corruption.” [sic]

The change of Mr. Thaksin’s name is a major obstacle for those who wish to make him return to Thailand. Thaivisa.com further quotes Mr. Panich:

“Problems can happen when we ask foreign countries to extradite him. We name him in our request as Thaksin Shinawatra but when those countries check his presence, they would not find him because he used different name.” [sic]

The issue of dual nationality and different names is not exclusively the problem of Thai authorities. Many people around the world have dual nationality and in many cases, they have different names depending upon their country of Citizenship. This can create a great deal of consternation for Immigration officials.

Dual nationality is not, in and of itself, a problem for those wishing to obtain US or Thai Immigration benefits. However, it can raise many issues with regard to the identity of the individual seeking the immigration benefit. For example, if an individual is born in Hong Kong under one name, but later takes Australian nationality under another name, then that individual’s birth certificate will not likely match his or her Australian passport. This can lead to problems with Immigration authorities as two names can cause confusion and lead to increased scrutiny.

When petitioning for Immigration benefits in any country, it is often required that the applicant divulge any aliases that they may have. For those applying for a Thailand visa or an American visa this is often required and failure to note an alias could result in relatively serious sanctions.

Many countries allow their citizens to have aliases noted in their passport. For United States Citizens, this is definitely a possibility, but requires approval of  an application to have a different name noted in a US passport. For those resident in Thailand, it is possible to have an alias noted in a US passport, but one must submit an application to the Consular Officer at the American Citizen Services section of the US Embassy in Bangkok or the US Consulate in Chiang Mai. US Embassies and Consulates elsewhere can perform this service as well. Thai Consulates and Embassies could also note aliases in one’s Thai passport, but one must check with the Consulate beforehand as not all posts are able to complete this task.

The Thai Ministry of Labour seems to be preparing for a major overhaul of the Thai work permit rules. Currently, Thai work permit regulations are relatively straightforward and the process is not particularly cumbersome. However, it would appear that new rules will be put into effect in the beginning of 2010. The following is a brief overview of the proposed rules and requirements.

Currently, there is a list of jobs that foreigners can and cannot engage in, an updated list of the types of employment which foreign nationals will be permitted to engage in will be promulgated on or before February 23, 2010. Pursuant to recent drafts of the updated Ministerial Regulations on the kinds of work that foreign nationals are permitted to engage in, these updated rules and will impact on currently valid work permits as they will be reevaluated upon extension.

The new protocols will force foreign nationals, when submitting a request for a work permit to be issued or renewed, to explain both the type of work (apparently, there will be between six and eight employment categories) and the actual job title that the foreign national will apply for.

Information regarding Ministry approved positions will not be available to the public as only officers at the Thai Ministry of Labour will have the list of approved positions. This list will be in an “internal guidebook,” which will only be distributed within the Ministry.

If a foreigner applies for a position that is not listed in the Ministry’s “internal guidebook,” the application will likely be denied. The foreign national may submit a new application but it will be placed under heavy scrutiny by the officers.

The sponsoring company’s business plan will also be required as well evidence showing that the company attempted to employ a Thai national in the position, but was unsuccessful in finding anyone to fill the role.

It should be noted that although these new rules will not have a direct affect upon one’s Thailand visa, failure to obtain a Thai work permit before one’s visa extension application is due could result in an inability to obtain a new visa extension and thereby cause the foreigner to fall out of status. For those staying in Thailand on a business visa, it may be wise to keep an eye upon the work permit rules as these rule changes will likely affect a foreigner’s ability to remain in the Kingdom in their current position. Those who own a company in Thailand should stay abreast of the rules as they could have a major impact upon a company’s human resources department.

Thailand is one of the major trading centers in Southeast Asia. As a result, many foreign nationals wish to conduct business in the Kingdom of Thailand. However, the Thailand Foreign Business Act precludes foreign ownership of Thai companies. Strictly speaking, foreign ownership is not technically illegal, but operating such a company for profit is against the law.

When we say, “foreign ownership,” we mean foreign majority ownership as foreign nationals are allowed to own a minority stake in a Thai company, up to forty-nine percent. If a Thai owns fifty-one percent of a company in Thailand, then that company is considered to be a “Thai Company.”

There are some who incorporate “Thai companies” that utilize so-called “nominee shareholders.” A nominee is one who owns shares in a Thai company on behalf of another. A nominee is not an “active shareholder,” in a company. Under current Thai corporate law nominee shareholders are illegal. However, defining what constitutes a “nominee shareholder,” can be difficult.

Thai law does provide for a way around the restrictions imposed by the Foreign Business Act. There are ways to license a Thai Company, with majority foreign ownership, to conduct business in Thailand.

On method of facilitating a foreign company to conduct business in Thailand is through a Foreign Business License. These documents can be difficult to obtain and the process for obtaining a Thai foreign business license can be very time consuming. Once granted the license will specify the exact nature of the business and the company will be precluded from conducting any other type of activity, unless another license is obtained.

Another method of facilitating foreign ownership of a Thai company is through the US-Thai Amity Treaty. As the name suggests, the US-Thai Treaty of Amity and Economic Relations is a bilateral agreement between the Kingdom of Thailand and the United States of America. A company certified under the terms of the Treaty is given “national treatment,” allowing it to operate in the same way as a “Thai Company.” The major exception being that an Amity Treaty Company is precluded from owning real estate in Thailand. Other types of Thai property could be owned by an Amity Company, such as a Thai Condo. Also, the provisions of the Treaty grant the aforementioned benefits exclusively to United States Citizens. Therefore, this method of certification is not for everyone.

The Australia-Thai free trade agreement provides some special benefits to Australians in Thailand as Australian Citizen may be allowed to own a majority stake in certain types of Thai companies.

A final method of licensing a foreign company in Thailand is through the Board of Investment or BOI. A BOI company can receive special benefits in the form of rights to operate and some BOI companies can own land. That being said, BOI companies are very difficult to incorporate and require a great deal of legal expertise to set up. BOI Companies are generally not advisable for those thinking of establishing a small Thai business. For large enterprises, such a setup may be advisable due to the fact that a Thailand visa and/or work permit is generally easier to obtain for a BOI company.

The K1 visa process is long and complicated. At the end of the process, the K1 visa holder is permitted to enter the United States one time for a duration of 90 days. Unlike a United States Tourist visa, the K1 fiance visa is a dual intent travel document. This means that the bearer is entitled to simultaneous immigrant and non-immigrant intent. Luckily, the K1 visa holder would likely not be placed in expedited removal proceedings based upon the notion that the alien is an undisclosed immigrant without proper documentation. That being said, there are still considerations which must be made before a Thai fiancee enters the United States of America.

The first major issue many American men ask about: Can My Thai fiancee leave the USA after she enters on her K1 visa? She can leave the United States, but doing so would cause her to fall out of K1 status and a new visa would need to be obtained. There is a document called an advance parole travel document which would allow the Thai fiancee to leave the USA and reenter in the same status. That being said, it is never wise to leave the USA after entering on a K1 until after the adjustment of status application is approved. It is wise to make certain the the Thai fiancee does not have any pressing concerns that must be dealt with abroad. Some circumstances cannot be foreseen, but it is not advisable to plan on turning around and leaving the USA shortly after entering on a K1.

Upon reaching a port of entry in the USA, the Thai fiancee will pass through Customs and Border Protection (CBP). This is the point at which she will need to present her visa. Most people do not realize that the visa is not merely the document in her passport, but also a large amount of documentation that the Embassy gives her after approving the application. This documentation is remitted in a sealed envelope which is not to be opened by anyone other than the CBP Officer. Generally, the CBP officer will ask some routine questions and usually admit the alien fiancee. In very extreme cases, it may be possible for a CBP officer to turn the entrant away. However, this author has yet to see a K1 visa holder turned away at the port of entry. With this in mind, couples should keep an eye upon the expiration date of the visa as this is critically important. If the visa expires before entry, then the entrant will need to reapply for a new visa at an Embassy or Consulate in Thailand.

In many ways, the laws of the Kingdom of Thailand and those of the United States of America are very similar, but in some ways these two systems are extremely different. For example, the Kingdom of Thailand has a Civil Registrar’s office also known as an Amphur office, or Amphoe Office, in Thai. These offices act as repositories of vital statistics of those living  in the Kingdom. They are important because one must register many official documents with this office in order to be provided certain legal protections. A common example of the duties associated with the Amphur office are those associated with a Thai marriage registration. An Amphur can register a Thai marriage in a very short period of time compared to jurisdictions in the United States of America. In some cases, this could also be said about Thai divorces. If a couple has decided to simply divorce by consent, then it is relatively simple to register the divorce in Thailand. However, if the divorce is contested, then there may be problems executing a marital dissolution quickly. In a slightly different situation, if one of the parties to the marriage cannot be found, then it may be difficult to register a divorce because the Amphur office requires that both parties be present when the divorce is registered.

Assuming one must use the courts to dissolve the marriage, the Thai legal system treats divorce similar to the “fault” based system employed by some jurisdictions in the United States. A “fault” divorce system compels the parties to show cause as to why the marriage should be dissolved. The unfortunate consequence of this system is the fact that “fault” divorces take a substantially longer period of time to complete compared to the “no fault” system. The reason for the delay is due, in part, to the large case load of most Thai courts. However, once the Thai court has entered a judgment of marital dissolution, the case is not over. Instead, the divorce judgment must still be registered at the Amphur office.

Registration of Thai divorces at a local Amphur office is somewhat akin to having the Clerk of a “common law” Court record the divorce judgment. This puts the jurisdiction on notice that the dissolution has occurred. The major difference is the fact that a clerk is generally in the same courthouse as the Judge who executed the marital dissolution. In Thailand, one must proceed to a wholly different office, the Amphur, in order to finalize the divorce by having the Amphur officer record the dissolution.

We discuss the K1 visa on this blog frequently. A K2 visa is a derivative child visa designed for the child of a beneficiary of a K1 fiance visa. Under the government interpretation of US Immigration law. Children in the United States of America on a K2 visa who fail to adjust their status before the age of 21 “age out,” and must leave the country, apply for a new visa, and then return to the USA on an Immigrant visa. Unfortunately, this system can result in a delay of months or years for the would-be K2 visa beneficiary as Immigrant visa applications for the 21 year old step children of US Citizens can take as long as 3-5 years to be adjudicated. At the time of this writing, the case known as In Re Qiyu Zhang is pending in the US court system and could change this rule.

Advocates for United States Immigration reform await the outcome of this case with great anticipation as a favorable opinion would provide many new benefits to the children of American Immigrants. The American Immigration Lawyers Association (AILA) has filed a brief in support of ending the “age out” interpretation of the K visa statute. To quote the American Immigration Lawyer’s Association directly:

“[T]he only reasonable interpretation of the K visa provisions is that Congress intended that a K-2 visa beneficiary be able to adjust status within the U.S. even after turning 21. Any other interpretation produces absurd results. Congress explicitly provided that the child of a fiancé(e) K-1 visa holder was eligible for a K-2 visa and admission to the U.S. up until he or she turned 21. Under DHS’ interpretation, K-2 beneficiaries …who are admitted to the U.S. shortly before their 21st birthday, and who thus have insufficient time to complete the adjustment process, must immediately depart the U.S. upon turning 21. Congress certainly did not intend for some K-2 visa beneficiaries to be restricted to a visit to the U.S. – in some cases, for only a matter of days – the result that flows inevitably from DHS’s interpretation of the statute. Instead, as demonstrated below, the statute can and must be interpreted to allow all K-2 visa holders, no matter their age after admission, a viable path to adjust to lawful permanent residence status.”

This writer concurs with the opinion in the aforementioned brief as K2 beneficiaries should be allowed to adjust staus even after they have turned 21. Even though the K2 could technically be considered a dual intent travel document, the primary reason for its use is for children to travel to the US and adjust status. In this case, denying Immigration benefits due to age is too arbitrary and failure to adjust status because one reaches the age of 21 violates the spirit of the K visa statute.

Unfortunately Thailand is a breeding ground for disreputable firms offering drafting services for a Thai prenuptial agreement. One of the telltale signs of such an operation is a so-called American “lawyer,” offering an American Prenuptial agreement for Thai fiancees. The first thing one ought to do when dealing with anyone claiming to be an attorney: ask for their credentials. An actual licensed attorney from the United States should be able to produce a bar card, supreme court license, or US Federal license to practice law.

That being said, there are further issues to remember when drafting a prenuptial agreement. One major formality should be adhered to when creating a prenuptial agreement and failure to adhere to this formality can severely damage a prenuptial agreement’s later enforceability. This important formality is a review with an independent attorney.

A prenuptial agreement, like many legal contracts, requires that all parties understand the agreement at the time that they sign it. In cases where the agreement is with a Thai fiancee, it is wise to have both a Thai version of the agreement and an independent attorney who can review the agreement with the fiancee so that she understands all aspects of the agreement and all of the legal rights and benefits that she is both acquiring and relinquishing by signing the agreement. Having the agreement drawn up by an unlicensed attorney runs the risk of having its provisions later thrown out due to poor draftsmanship. Further, failure to have an independent attorney review the document with the Thai fiancee could result in a court finding that the provisions of the agreement should not be followed because the Thai fiancee did not understand what she was signing when she signed it.

For these reasons, it is highly advisable to retain a licensed attorney to draft a prenuptial agreement in both Thai and English. A legitimate attorney can then refer the Thai fiancee to another licensed independent attorney who can provide an accurate and impartial assessment of the agreement as well as answer any questions that the Thai fiancee might have.

Some couples opt to have their signatures notarized and in Thailand an attorney will likely have access to a Thai notary. If the couple plans to sign the agreement in the United States, then it would be wise to retain the services of a notary in the state where the agreement is signed. A notary must actually witness the signatures of both parties. At American Citizen Services at the US Embassy in Bangkok the consular officers can provide notary services. Although a Thai notary is valid if the agreement is signed in Thailand.

For more information, please see Thailand Prenup.

Although not a major topic on this blog, the visa run is an issue for many expatriates, or expats, in Thailand. There was a time when remaining in Thailand for a virtually indefinite period of time simply required a “visa run” or “border run,” once every thirty days. However, Thai Immigration regulations have been in a state of flux for approximately 5-10 years and one of the biggest changes was the end of the infinite 3o day visa exemption. Today, a foreigner will usually only receive a 15 day visa exemption at a land border in Thailand. This is unhelpful for those wishing to remain in Thailand for a long period of time as Thai Immigration officials require at least 21 days of lawful status to convert a Thai visa or extend a Thai visa.

The border run or “visa run” is still important for many as it is still required of one in the Kingdom on a long term multiple entry Thai visa.  A one year multiple entry visa for Thailand provides the bearer with 90 days of lawful status per entry. In the case of the Thai business visa, business travelers often leave Thailand before their duration of stay has ended. However, in cases where the traveler must remain past 90 days he or she will need to leave the country and be stamped back in at a port of entry.

A common method of fulfilling this Thai Immigration requirement is through use of a land border. A very popular “border run” or “visa run” destination for those residing in Bangkok is Cambodia. Although currently their are some tensions with Cambodia that threaten to close the Cambodia border. At present, it would appear that the border will remain open. That being said, another issue arises. Namely, does one need a visa to enter Cambodia on their “visa run?” For most passport holders the answer to this question is: Yes. With the exception of ASEAN nations, most foreign passport holders need a visa to enter Cambodia. Currently the price of a Cambodian visa is $20 although this price could change.

Some border runners and visa runners opt to travel to other countries near Thailand as a method of fulfilling Thai Immigration requirements. Popular destinations are Burma (Myanmar), Laos, and Malaysia. Currently, Malaysia has a visa waiver program for most passport holders while Burma (Myanmar) requires a visa for those from nearly every nation. A Burmese visa can be obtained at the Myanmar Embassy in Bangkok. As to Laos, a visa exemption or visa on arrival is granted to most entrants when they are admitted to Laos at a port of entry.

Some opt to do their “visa run” using an airport. In this situation the visa runner needs to leave Thailand by plane and be stamped back into the Kingdom upon return. Malaysia has become a popular destination as the Royal Thai Embassy in Kuala Lumpur is popular for short term Thai visa applications.

Thailand visa rules can act as an inconvenience to many foreigners in Thailand, but through research on the current Immigration laws one can make the process as hassle-free as possible.

As more and more Thais marry foreign nationals the Thai diaspora grows. Many Thai-American couples immigrate to the United States of America using either a fiance visa such as a K1 visa or a marriage visa like a K3 visa or CR1 visa. When these couples have children a few questions arise. First, what is the child’s nationality? Second, is the child entitled to dual nationality. Third, if entitled to a Thai passport how do we go about obtaining one? This is where the Thai Consular Report of Birth Abroad comes into play.

It should be noted that a child born to a Thai mother overseas is born with Thai nationality. A child born to a Thai father abroad is probably Thai although there are some restrictions in the Thai Nationality act. For our purposes we will assume the child is born with Thai nationality.

In order for a Thai national who was born abroad to obtain a Thai passport a Consular Report of Birth Abroad must be obtained by the foreign born Thai. This report of birth abroad is similar to the US Consular Report of Birth Abroad in that it provides proof that the child was born to a Citizen of the Kingdom of Thailand. Pursuant to relevant sections of Thai nationality law, the child of a Thai Citizen is Thai. Therefore, once a report of birth abroad is issued a Thai passport can be acquired.

Some are under the mistaken impression that Thais and Americans cannot have dual nationality. This is not true. There is no provision under Thai law prohibiting dual nationality. Further, United States nationality law does not prohibit dual nationality. The major issue for dual nationals concerns their two home countries. A Thai-American with dual nationality is considered exclusively an American citizen when in the United States of America (or one of its protectorates, possessions, or territories) and exclusively a Thai citizen when in the Kingdom of Thailand.

There can be a great many problems that can arise if one fails to obtain a Thai Consular Report of Birth Abroad on behalf of one’s child. This is particularly true if the child later wishes to reside in Thailand with the same benefits as other Thai citizens. Proving Thai citizenship from birth can be difficult if there has been a long period of time between the child’s birth and subsequent application for a Consular Report of Birth Abroad. There can be particularly daunting problems if the Thai national is a boy because there are military draft requirements for male Thais. If one does not fulfill their draft obligations and subsequently wishes to obtain a Thai passport the bureaucratic difficulties could be legion. Therefore, it may be wise to retain the advice of a Thai attorney or law firm if a man wishes to sort out his Thai nationality after missing his draft year.

A Consular Report of Birth Abroad can be issued at a Thai Embassy or Consulate in the country where the Thai was born. The Thai posts have a section similar to the  American Citizen Services section at a US Embassy which handles Reports of Birth Abroad.