Integrity Legal

Posts Tagged ‘Thai fiancee’

28th April 2023

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

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

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

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27th May 2009

Although it seems like a simple issue, discerning the difference between a fiancée and a wife for the purposes of US Immigration can be crucial, and oftentimes less than straightforward when looked at from the perspective of International law.

The reason for the unexpected ambiguity stems from the fact that different countries have different legal systems and as a result, there are different methods for legalizing marriages. The English common law is in place in the United States, as in many former British Colonies and current members of the British Commonwealth. As a result, in many of these countries the principle of “common law marriage,” has either been in previous existence under the law or is currently still good law. In either case, in common law countries, the concept of “common law marriage,” is a widely understood notion amongst laypeople.

In civil law countries, there is usually no history of judicial recognition of anything akin to a “common law marriage.” That being said, not all civil law countries deal with marital issues in the same way. There are instances where an otherwise “civil law” country will promulgate “common law,” legal mechanisms by statute (an example being where a civil law country adopts trust law via statute).

In countries that have no history of “common law marriage,” a marriage is only legalized upon compliance with whatever rules govern marriage formalization. For instance, in the Kingdom of Thailand a marriage is only legalized by registration at the local government office (known as an Amphur office in Thai). Failure to register a marriage results in a situation in which the couple may consider themselves married, but they are legally unwed. For more on this issue please see:  Marriage Registration Thailand

Deciding whether a couple is legally married is important from a US Immigration perspective because a couple’s marital situation can have a major impact upon their ability to obtain certain types of visas. Marital situation can also impact the processing time of a US visa. Therefore it is important to be clear on the couple’s marital situation upfront. In Thailand, for example, many couples engage in a ceremonial or customary wedding ceremony, but never formalize a marriage. Filing for a marriage visa rather than a fiancee visa can lead to a great deal of wasted time and resources because USCIS and the US Embassy are unlikely to grant the marriage visa because the couple is not legally married.

(Please be advised that all of the information contained in this writing is for educational use only and does not constitute legal advice. Legal advice should be obtained in a one-on-one consultation with a licensed attorney. No attorney client-relationship is formed between any reader of this piece and the author.)

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5th May 2009

Buddhist marriage ceremonies are a very interesting aspect of Thai culture. Many Thai and American fiances choose to conduct a customary religious ceremony in order to convey to the world the couple’s mutual desire to remain together and express their commitment to their partner. As Thailand is not a common law country, the idea of “common law marriage,” is not a concept specifically recognized under Thai jurisprudence. Therefore, if a marriage is not duly registered at an Amphur office (a Thai government office with a mandate akin to a department of vital statistics in the United States), then Thai law is unlikely to recognize any type of domestic partnership exists. Therefore, from a practical standpoint, without a duly formalized marriage execution and issuance of a marriage certificate: no marriage exists.

A question often posed by prospective K1 Visa seekers is: if I have a ceremonial or customary marriage in Thailand, will that preclude obtainment of a K1 visa because the Thai fiance no longer meets the legal definition of “fiancee,” under relevant immigration law?

The question of Thai customary wedding ceremonies is not a cut and dried issue, but it can be said that without a registered marriage, then in the eyes of US Immigration law, the couple is not married. Therefore, a couple who have performed a customary wedding ceremony in Thailand, but have not executed a legal marriage will likely be able to obtain a Fiance visa.

From a US Visa and Immigration perspective, the odd upshot of conducting a customary marriage ceremony is the fact that the ceremony can act as evidence in further proving the bona fide nature of the underlying relationship. However, it may be wise to retain representation because explaining the legalities and details of a Thai-American couple’s relationship to the immigration authorities can require legal expertise. Basically an attorney would explain the situation and press home the fact that the couple is not legally married and therefore they meet the definition of fiances for the purpose of American immigration law.

A related question with regard to lack of marriage registration comes up with regard to children born of a Thai Citizen and an American Citizen. Many people ask if American Nationality can be conferred if the marriage was not legally formalized. The short answer to this question: if the child is born of an American Citizen, then the US Citizen’s citizenship will likely transfer to the child automatically upon birth. There are some limitations on this general rule where the US Citizen parent has not had presence in the USA for a statutorily defined amount of time and therefore cannot transmit Citizenship. In a case such as this in Thailand, an Immigration Attorney in Thailand should probably be consulted in order to understand the child’s US Immigration and Nationality options.

For information on US Marriage Visas from Thailand please see:

K3 Visa Thailand

US Marriage Visa

(Note: Nothing in this post should be subsequently used in lieu of individual legal advice from an attorney. No attorney-client relationship is created between the reader and author of this post.)

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