Integrity Legal

While traveling  recently to Yangon (Rangoon), Myanmar (Burma) the author had the opportunity to visit the Royal Thai Embassy in that country. The first impression of the Embassy compound was not positive as the building itself is in somewhat dilapidated condition. However, the first impression is misleading as the inside of the Consular Services section is quite nice as well as being very clean and cool. The Consular staff at the Thai Embassy in Yangon (Rangoon) were very friendly, efficient, and helpful. That being said, foreknowledge of the Consulate’s protocol is always helpful in making certain that one’s experience with the post is pleasant.

The first thing to note about the Thai Embassy in Yangon (Rangoon) is the fact that there is a security guard at the front who acts as a sort of gatekeeper for the facility. Access is obtained after obtaining a number and turning over a piece of identification. This rule seems loosely enforced with regard to farangs, but as I was accompanying a Burmese national, I did not need to present ID as my associate produced her Myanmar ID Card. There are a great many “backpackers,” and tourists using this post as it is one of the closest to the Kingdom of Thailand, and therefore an easy destination for a visa run. That being said, it is not nearly as popular as Kuala Lumpur, Penang, or Vientiane, if for no other reason than the fact that Myanmar requires a visa for nearly all tourists and greatly restricts the issuance of visas on arrival. Therefore, acquiring a Thai visa from Myanmar (Burma) may necessitate the obtainment of a Myanmar (Burmese) visa in order to travel to the country and visit the Thai Embassy.

Generally, visa applications are dropped off in the morning and picked up the next day. Depending upon the situation, the applicant’s passport and visa may be retrieved in the same afternoon. The address of the Royal Thai Embassy in Myanmar (Burma) is:

No.94, Pyay Road,
Dagon Township Yangon
Union of Myanmar

The office hours for visa application submissions are 9:00 am until 11:30 am. One may retrieve their passport in the afternoon from 2:00 pm until 5:00 pm. One should be aware that the Union of Myanmar (Burma) is in a different time zone. There is a half hour difference between the time in Myanmar and the time in Thailand. This can be the cause of a great deal of consternation as it is very difficult to keep track of the local time if one has become accustomed to the Thailand time zone.

For more information please see the Royal Thai Embassy website: here.

The law of trusts has been a component of the common law system for many years. Under the common law system the idea of title was bifurcated into legal title and equitable title. Under this system, one could hold legal title to real estate or property while equitable title was held by another. This made it possible to circumvent legal mechanisms such as probate or avoid certain types of taxation. Many Expats who originate in common law countries mistakenly believe that this concept can be applied in Thailand. Unfortunately, Thai law does not codify the idea of trust law and as a result business and property structures should probably not be based upon such concepts.

In England many years ago, two courts came about to deal with civil and criminal issues. At first there were the courts of law where cases could be heard. However, there were many instances where the courts of law could not effectively deal with some matters. Therefore, a Court of the King’s Conscience was established and certain cases were resolved in this “court of equity.” Trust law evolved from this bifurcation of equity and law. One could hold equitable title in the court of equity, but not hold legal title in the court of law. Often, the result was to the advantage of the holder of equitable title because it allowed him to enjoy the benefits of the property without the burdens of legal ownership (most notably taxation). In countries where the common law system became the law of the land, these principles of equitable and legal title were passed on. As a result, in many common law countries today, the idea of nominee shareholders is a commonly accepted method of maintaining control of a business or property interest. Also, controlling a trust that owns land is a common method of lawfully avoiding taxes.

In countries that did not adhere to common law principles, the notion of equitable and legal title is somewhat foreign and often not recogized as a legitimate method of property ownership. In Thailand, which utilizes a civil code legal system, trusts and equity are not regarded as mutually exclusive methods of property ownership. Although similar concepts such as usufructs, superficies, and escrows exist, for the most part Thailand does not recognize many equitable concepts. A case in point is the Thai view of nominee shareholders. Nominees are strictly forbidden under statutes passed by the Thai parliament (while the definition of nominee is left somewhat vague). Further, nominees are viewed with extra hostility where they are being utilized for the purpose of maintaining control of a Thai company to own land.

In 2008, the Kingdom of Thailand passed legislation that made escrows legal. An escrow is a relationship where two parties contract with a neutral third party to hold funds until the completion of some specified condition. Since the enactment of this legislation, escrows have become increasingly common in the context of Thai Real Estate and Thai property transfers. The reason for this increased usage is due to the many benefits that both parties can receive from utilizing a Thai escrow agent.

The following is an example of how an escrow agent can be utilized in a situation where a foreign national wishes to purchase property in Thailand:

If a non-Thai national wishes to buy Thai property and hold the property freehold, then the options are limited. One of the most popular methods of purchasing Thai Real Estate is to buy a Thai Condo. Under the Thai Condominium Act, a foreigner can hold the Thai Chanote (or Title Deed) of a Condominium provided the Condominium Complex has 49% or less foreign ownership. Once the buyer and seller agree to a price the two parties can agree on an escrow agent and place the funds in the escrow agent’s care. The escrow agent will often agree not to disperse the funds until the parties agree to do so.

An escrow can be an effective way for buyers to be assured that there will be not fraud or misrepresentation in a property transaction. A common occurrence in Thailand involves property developers taking money for Real Estate construction and then failing to complete the project. Another, less common, tactic utilized by unscrupulous operators is to sell interests in property that the seller does not actually own. Using an escrow agent in tandem with a Thai property attorney to conduct due diligence can help ensure that a property buyer is getting what they pay for.

Until relatively recently, Escrow agents were not permitted to operate under Thai law. As Thailand does not have a common law tradition, the ideas of trusts and equitable title are not present within the provisions of the Thai Civil and Commercial Code. That being said, the government in Thailand understood the need to protect buyers and sellers from fraud. The need for “honest brokers,” to hold Thai property purchase payments was self-evident. The recognition of the need for escrows and escrow agents is a credit to the foresight of the Thai authorities. Hopefully, this marks the beginning of a trend toward more consumer protection laws to protect Thai property buyers.

The authors have noticed an upsurge of those asking about how to go about replacing a lost passport while traveling in the Kingdom of Thailand. This post is a brief overview of what needs to be done when one loses their United States Passport in Thailand.

In order to receive a new passport one must go to the American Citizen Services (ACS) section of the United States Embassy in Bangkok, Thailand. This office is located near the Consular Section of the US Embassy, in fact the two rooms are adjoining once one is inside the compound. It is wise to first make an ACS appointment by going to the US Embassy website here

In many cases, people do not plan to lose their travel documents so making an appointment may not be feasible. The United States Embassy website provides the following suggestion:

“When traveling, please remember to carry a photocopy of your passport separately from your passport. In the event of loss or theft, the copy will help facilitate issuance of an emergency passport.”

For those thinking of traveling, keep the above quote in mind as it can save a great deal of time at the Embassy.

At one time, the American Citizen Services Section in Bangkok, Thailand was considered to be one of the worst for customer service when compared against its counterparts in the region. However, over the past 5 years, this office has done a great deal to improve customer service and efficiency. It is now a very customer-friendly office that provides fast effective service.  If an online appointment is set in advance then one could expect to be in and out in relatively short order, depending upon the service sought.

For those who lose their passport, they have the option of either applying for a new passport or applying for an emergency passport. Under limited circumstances, the Embassy will expeditiously issue Emergency Passports that have a very short validity period.

In order to obtain a new passport one will need to provide proof of citizenship such as a Naturalization Certificate, Certificate of Citizenship, a Birth Certificate, a Consular Report of Birth Abroad, or a Drivers License. Again, due to the likely unavailability of these documents it is always wise to have a copy of the previous passport.

Once the new travel document is issued, one needs to have their Thai Immigration entry stamps replicated in the new passport. Therefore, a trip to Thai Immigration will be necessary. For those with a long term Thai visa, the visa will need to be duplicated in the new passport.

For those in Northern Thailand, the American Citizen Services Unit at the United States Consulate-General in Chiang Mai also could assist with passport issuance. See their website here.

For those researching the United States visa process a document called Notice of Action 2 is mentioned many times in relation to spouse and fiance visa applications. This post is a brief description of what Notice of Action 2 is and what it means for a pending application.

When a United States visa application is submitted the first piece of correspondence that arrives from the United States Citizenship and Immigration Service  (USCIS) Center is a receipt called Notice of Action 1 (NOA 1). This puts the petitioning party on notice that the application has been received by the USCIS Service Center. There are certain situations where the adjudicating officer decides that more information or evidence needs to be provided before the application can be properly adjudicated. In cases such as this, a Request for Evidence (also known as an RFE) will be issued and sent to the petitioner. However, in most cases, further evidence is not necessary and if the application is approved then Notice of Action 2 is sent to the petitioner. If the application is denied, then a notice will be sent to the petitioner as well.

Although not extremely common in cases involving visas for the family members of United States Citizens, USCIS denials can occur. Denials are usually the result of a petition that did not go far enough in showing that a bona fide relationship between Petitioner and Beneficiary existed at the time of the filing. Another common reason for denial is that the petitioner applied for the wrong type of visa. A common misconception in Thailand involves customary marriages and their effect upon a couple’s United States Immigration options. In Thailand, if a Thai marriage is not registered at the Civil Registrar’s office (Amphur), then the marriage is not legally binding and not recognized by the United States Citizenship and Immigration Service as a basis for receiving US Immigration benefits. Therefore, if a couple who has only been married unofficially submits a petition for an IR1 visa, CR1 visa, or K3 visa then they will be denied because they do not meet the statutory requirements for visa issuance. However, the couple in this situation may be eligible for a K1 visa.

After USCIS issues Notice of Action 2, the petition will be sent to the National Visa Center. In cases involving Immigrant visas, the NVC holds the petition for a fairly long period of time. However, in cases where a K1 visa is being sought, the NVC does not hold the application for a long time. They will usually conduct a Security clearance and forward the file to the US Embassy, in cases involving Thai fiancees they will forward the application to the US Embassy in Bangkok. The United States Consulate General in Chiang Mai does not generally handle US Immigrant visa cases.

In a previous post, we discussed the initial submission of an application for a United States visa for a foreign loved one. In this post we will discuss what needs to be done in the event of a request for evidence from the United States Citizenship and Immigration Service (USCIS). After USCIS receives an American Citizen’s US Immigration application, they send out a receipt notice commonly referred to as Notice of Action 1, or NOA 1. In the vast majority of ultimately successful cases the Notice of Action 1 is followed by the Notice of Action 2 approval notice. However, there are cases where an adjudicating officer at USCIS requests further documentation. In most Requests for Evidence (RFE) the deficiency of evidence is based upon the fact that one or more of the documents was illegible. This is why clearly legible documentation should always be provided when submitting an application to USCIS.

In order to forestall receiving an RFE, many couples opt to retain an Immigration attorney to assist in the filing of a United States visa application. An experienced United States Immigration attorney can predict what the officers will wish to see in order to favorably adjudicate a petition. However, simply retaining an attorney will not guarantee that a Request For Evidence will not be made, but if an RFE is sent, then the attorney can handle it and deal with the documentary deficiency.

The RFE will specify which documents are either missing or illegible. After specifying the deficiency, the RFE will go on to state how the deficiency can be dealt with and the deadline the applicant and petitioner will have to remedy the problem by sending the requested documentation.

In a way, an RFE is similar to a 221g refusal from the United States Embassy. The reason these requests are similar is that both require that the applicant or petitioner provide further documentation before an approval will be granted. The major difference between these two requests is the fact that officers of the United States Department of State issue 221 g requests while officers of the United States Department of Homeland Security issue requests for evidence. In both cases, the documentation is requested usually in an effort to conduct due diligence to ensure that the Immigration benefit should be accorded to the beneficiary.

In K1 visa applications the adjudicating officer is usually requesting evidence that shows the bona fides of the relationship or the status of one of the parties. In K3 or CR1 visa applications, the officer is usually seeking evidence regarding the couple’s marital status or the status of the parties before the marriage occurred.

On this blog, we commonly make reference to Notice of Action 1 or NOA 1. In an effort to provide the most high quality repository of United States Immigration definitions for those seeking a US Visa from Thailand providing a brief overview of this official Immigration notice is required.

In many United States Immigration matters, particularly family Immigration cases from Thailand, the visa application must first receive approval from the United States Citizenship and Immigration Service (USCIS). This agency is one of many that reports to the Secretary of the United States Department of Homeland Security (DHS).

When a couple opts to apply for a United States visa, they often apply for one of the following categories: CR1 visa, IR1 visa, K3 visa, or K1 visa. The CR1, IR1, and K3 are all United States Marriage visas while the K1 visa is a fiancee visa. All of these visas require USCIS pre-approval before a visa interview can be set. Conversely the B1 visa, B2 visa, F1 visa, and J1 visa are all non-immigrant visa categories (that do not permit dual intent) and therefore do not require USCIS pre-approval. It should be noted that the non-immigrant visa categories are much more difficult to acquire for loved ones of United States citizens due to a provision in the United States Immigration and Nationality Act called 214b. This provision creates a legal presumption that must be overcome by the foreign applicant before the visa will be issued.

When a United States Citizen files for a K1, K3, CR1, or IR1 visa they first file an application at a USCIS Service Center. There are two USCIS Service Centers that accept applications for the aforementioned visa categories and the petitioner’s residence will determine where the application should be filed. The petitioner will send in the application and upon receipt, the USCIS Service Center will generate a receipt referred to as Notice of Action 1 (or NOA1). This receipt will note the names of the Petitioner and Beneficiary as well as the date of receipt and the date the notice was generated. The receipt will also show a case number.

For those who retain the services of a US visa lawyer, a copy of Notice of Action 1 will be sent to the attorney provided the attorney submitted a G28 form with the application. Before retaining an attorney it is wise to make certain that a G28 form will be submitted because it is important to facilitating efficient visa processing. Fake lawyers and so-called visa agencies cannot represent clients before USCIS so it may be wise to inquire as to the credentials of any proposed representative. Unfortunately, in the Kingdom of Thailand, there are many unauthorized services masquerading as licensed US Immigration attorneys.

The Notice of Action 1 should not be confused with the initial letter sent from the US Embassy Thailand. This letter is commonly referred to a Packet 3 and is sent at a later phase of the US Immigration process.

There are many misconceptions regarding the authority that officers at the United States Consulate in Thailand have. Many people mistakenly believe that legal concepts such as due process apply to matters going before US Consular officers. In reality, this is not the case. Consular officers have very broad powers when it comes to adjudicating applications for United States visas. There are laws on the books that Consular Officers must observe when determining whether or not a US visa should be issued, but when making factual determinations, the doctrine commonly referred to as Consular Absolutism applies to their decisions.

The Doctrine of Consular Absolutism basically states that the factual decisions of Consular Officers are not subject to appeal. This legal notion is also  called Consular Nonreviewability. In the case of Bustamante v. Mukasey the 9th Circuit Court of appeals concisely summed up the limited scope of judicial review that will be granted with regard to a Consular decisions in visa matters:

“[A] U.S citizen raising a constitutional challenge to the denial of a visa is entitled to a limited judicial inquiry regarding the reason for the decision. As long as the reason given is facially legitimate and bona fide the decision will not be disturbed…”

Showing that a Consular Officer’s reason for their decision is facially illegitimate or not bona fide is extremely difficult, if not, practically impossible. As a result, their decisions regarding visa issuance are essentially final.

Many wonder why Consuls are accorded such broad powers. The reason these officers are granted this ability to make unappealable decisions is based upon the policy argument that a Consular Officer is in the absolute best position to adjudicate the facts of a given visa application. In a way, Consular officers and the Doctrine of Consular Absolutism are the first lines of defense when it comes to preventing the entry of unqualified aliens into the United States of America.  They are also the first line of defense when it comes to determining fraud, misrepresentation, possible terrorist suspects, and facts which could result in a finding of legal inadmissibility. Therefore, Consular officers must be provided with the authority to deny visa applications that they find either suspicious or deficient.

This is why in visa cases involving family members it is very important to prove up the bona fides of the underlying relationship. A K1 visa application is based upon a relationship between a US Citizen and a foreign national. Proving the bona fides of this relationship can be crucial to a favorable decision. This is also true for marriage visas such as the K3 visa and the CR1 visa.

Although, some have questioned the wisdom of granting such broad powers the prerogatives exercised by Consular officers are not abused as those in the Consular Corps perform their duties efficiently, courteously, and thoughtfully. That being said, there are cases where the applicant must be denied for factual reasons. The only way to facilitate this necessity is to provide Consular Officers with a wide degree of discretion in adjudicating visa applications.

Another very valid policy argument for the retention of the Doctrine of Consular Absolutism (Consular Nonreviewability) is based upon the notion that allowing for an appeals process in US visa cases would create a tremendous administrative burden upon the Department of State specifically and the United States government generally. Therefore, it is unlikely that this situation will change in the near future.

Each year, the United States of America opens the “visa lottery.” Basically, foreign nationals from countries with small numbers of immigrants in the United States are entitled to submit an application for a Diversity visa. As the name implies, the Diversity visa was designed to facilitate cultural diversity in the United States by providing immigrant visas to those originating from various foreign countries.

According to the United States Department of State diversity visa application registration began on October 2, 2009:

The Department of State announces the opening of the registration period for the DV-2011 Diversity Visa lottery. Entries for the DV-2011 Diversity Visa lottery must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Friday, October 2, 2009, and noon, Eastern Standard Time (EST) (GMT-5), Monday, November 30, 2009. Applicants may access the electronic Diversity Visa entry form (E-DV) at www.dvlottery.state.gov during the registration period. Paper entries will not be accepted. Applicants are strongly encouraged not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon EST on November 30, 2009.

It should be noted that the Diversity visa application is absolutely free. Under provisions of the United States Immigration and Nationality Act, there is a special visa category for so-called diversity immigrants.

We at Integrity Legal generally do not handle Diversity visa cases as the process is fairly straightforward and can often be handled by an applicant without retaining counsel. Unfortunately, there are those who attempt to defraud unwitting consumers. A common claim made by some is that a diversity visa can be obtained after paying an initial application fee which is absolutely not true. The application for a Diversity visa is provided free of charge.

Only 55,000 visas are available each year and as a result, the chance of acquiring this type of visa is rather low. That being said, the visa lottery winners are drawn from a list of those who are from countries with low numbers of immigrants in the USA. There is a list of countries whose nationals are ineligible for a diversity visa. The list of ineligible nationals has not changed since the last round of the diversity visa lottery. Those granted a diversity visa will be entitled to residence upon entry in the United States.

For more information regarding the Diversity Visa please see our previous posting on this blog.

Visit this website: www.dvlottery.state.gov for more details.

The United States Citizenship and Immigration Service adjudicates many applications for US Immigration benefits. As a result, they deal with a large number of government forms. A form that is quite familiar to United States Immigration Attorneys is known as the G28. The G28 is the form which puts the United States government on notice that a licensed attorney has entered his or her appearance in the case. According to recent statements from USCIS, the current G28 is to be phased out and replaced by a new version.

According to a recent government press release:

“USCIS will provide a 30-day grace period for the Form G-28, until Oct. 30, so that Forms G-28 currently in the mail will be considered valid when received at the USCIS Lockbox facility or USCIS Service Center. After Oct. 30, any prior versions of the Form G-28 that are received will be considered invalid. All Forms G-28 filed before Oct. 30, will be honored for previously filed cases as long as the Forms G-28 were properly completed by an eligible attorney or accredited representative. The new Form G-28 is not required for receiving updates or interviews unless a new attorney is representing the applicant.”

Usage of form G28 is a method of detecting whether one is dealing with a licensed attorney as opposed to a “visa agent” “visa consultant” or an out and out fraud claiming to be an “immigration lawyer”. The G28 can be useful for weeding out impostors because it requires that the attorney provide his or her state of license. Other forms in a visa application will likely require the attorney’s license number. Although there are some refugee and other non-profit agencies entitled to represent clients before USCIS, these groups are not allowed to profit from said representation. Therefore, the only paid representative that will be recognized by USCIS for matters in the USA is an attorney licensed in a United States jurisdiction.

For those who are not licensed to practice law in the United States, filing a G28 on behalf of another could be construed as the unauthorized practice of law due to the rule that only attorneys are qualified to represent clients before the Immigration service for profit.

The grace period mentioned in the quote above means that at the time of this writing there are approximately 25 days left to use the old G28 form. Bearing this in mind, it may be better to simply begin using the new form as soon as possible in order to forestall a rejection of the form due to expiration.

For more information please see K1 visa application