Integrity Legal

2022 was a very important year in Thailand. The pandemic in Thailand was deemed endemic and the emergency decree was ended. As a result, Thailand reopened to virtually unfettered tourism in the 3rd and 4th quarter of 2022. The impact upon the Thai Immigration apparatus was substantial. As of the time of this writing it remains possible to enter Thailand without vaccine documentation (although there was a brief moment when this was in question). Concurrently, under a present rule it is possible to enter Thailand in visa exempt status and receive 45 days upon arrival as opposed to the standard 30 days which was being issued prior to March of 2020.

The American Immigration system, meanwhile, appears, for all intents and purposes, to be getting more difficult to deal with. Much of the process is redundant and the National Visa Center seems to have an agenda to create the most an obtuse neo-Soviet system which results in a quagmire for anyone wishing to bring their spouse to the USA on a CR-1 visa or IR-1 visa. The K-1 visa process is not much better with people waiting for well over a year and a half to obtain K-1 visa and thereby be reunited with their loved one in the USA. Across the board, American immigration has never been quite as difficult to deal with as it is at this time, in this blogger’s humble opinion.

On a different note, there has been a major policy development in Thailand which seems poised to have tremendous legal and economic ramifications for Thailand. With the legalization of cannabis in 2022, Thailand quickly saw economic gains in terms of the business activity which quickly sprang up shortly after these developments were announced. The legalization of cannabis has created new opportunities in the Thai agricultural sector along with likely developments in the medical fields along with industry. Presently, the cannabis industry in Thailand remains largely unregulated, but there are hard and fast rules. Notably, those wishing the operate a dispensary in Thailand are required to obtain a controlled herb license. Such licensure is only available to Thai citizens. Foreigner nationals may have an ownership interest in a Thai company which operates in the cannabis space, but foreign ownership interests cannot be more than one third of the overall equity in the business entity. Foreigners are only allowed to make up one third of any corporate governance mechanisms in Thailand (i.e. corporate boards of directors). As a result, foreign participation in the Thai cannabis economy is likely to remain limited in the years ahead. That stated, the evolution of cannabis law in Thailand remains to be seen, but we will keep this blog updated on these topics moving forward.

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Posted in Thailand Business, Thailand Visa, US Visa and Immigration | No Comments »

Unlike the past two and a half years, border running in Thailand is again possible as Thailand reopens and allows tourism once again. As to the definition of a “border run” it may be best to quote directly from legal.co.th:

So in my mind, the Border Run is basically when someone hops over the border for example Cambodia, Laos, Myanmar, Malaysia, here in Thailand, they literally just hop over the Border. What you see a lot of down here in Bangkok, Pattaya area, sort of the eastern part of Thailand, you see a lot of folks run over the border to Cambodia. Literally they just hop the Border, they are there for a relatively short period of time, almost nominal period of time and then they hop right back into Thailand and then they get their status that way.

This definition is different from that of a visa run which is defined as:

Then there is what I think of as a Visa Run which is when one flies or you could drive but ultimately what is going on here is you are going to an Embassy, in this case a Thai Embassy and getting a new actual Visa, then coming back to Thailand.

Although border runs are again possible, those who do not use a visa agency or transportation service which specializes in border runs may find themselves unable to depart and return to Thailand in the same day.

Meanwhile, officials within the American State Department have noted that they are taking steps to decrease processing times for US visas. To quote directly from the State Department’s website:

As for many service providers, the COVID-19 pandemic forced profound reductions in the Department’s visa processing capacity in two main ways.  First, restrictions on travel to the United States, and local restrictions on public places like our overseas consular waiting rooms, curbed our ability to see visa applicants.  As most applicants are required by U.S. law to appear in person, these restrictions forced a reduction in the number of visa applications the Department could process.

Second, as revenue from the application fees that fund visa processing operations was cut nearly in half, the Department was forced to leave more than 300 overseas consular officer positions unfilled in 2020 and 2021.  This further reduced the number of visa applications we could process.

One method DOS appears to be using is waiver of interviews (this should not be confused with an I-601 waiver or an I-212 waiver). In certain nonimmigrant visa cases it may be possible to apply for, and receive, a visa without the need to physically be present in the interview:

During the pandemic, the Department of State coordinated with the Department of Homeland Security to waive in-person interviews for several key visa categories, including for many students and temporary workers integral to supply chains.  In addition, applicants renewing nonimmigrant visas in the same classification within 48 months of their prior visa’s expiration are now eligible to apply without an in-person interview in their country of nationality or residence.  This has already reduced the wait time for an interview appointment at many embassies and consulates.  We estimate 30 percent of worldwide nonimmigrant visa applicants may be eligible for an interview waiver, freeing up in-person interview appointments for those applicants who still require an in-person interview.

Actual case processing time remains far longer than prior to the second quarter of 2020 so the practical impact of these initiatives remains to be seen.

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Posted in Thailand Visa, US Embassy Thailand | No Comments »

Officials in Thailand are set to end the Emergency Decree on October 1. With the end of the emergency decree there are immigration implications. Most notably, beginning in October all present testing and vaccination requirements associated with entering Thailand will be rescinded. However, the end of the emergency decree does not necessarily entail all positive developments. Since March of 2020, Immigration officers in Thailand have had increased discretion regarding the issuance of Thai visa conversion. Under normal circumstances, the prevailing paradigm in Thai Immigration is that non-immigrant visa holders (or those holding an exemption) should leave Thailand and obtain a new visa, via a “visa run,” if they wish to have a different non-immigrant category. Following the inception of the emergency decree, and the issues associated with travel over the past 2 and a half years, Immigration officials had wider latitude to grant in-country changes of visa status. As travel is now less cumbersome, and therefore the capability of completing a border run is now restored, it seems likely that Immigration’s discretion to allow in-country change of visa status may evaporate.

All news is not necessarily bad, however, as October 1 will see an extension of the lawful status bestowed upon those entering Thailand in Thai visa exempt status. Until now, those traveling to Thailand and entering with a Thai visa exemption stamp have only been allowed 30 days of status. It was recently announced that such status will be extended to 45 days. Concurrently, those entering Thailand and obtaining a visa on arrival will be granted 30 days of status instead of the standard 15. Apparently, this measure is only temporary as this initiative is designed to spur tourism to Thailand during the upcoming high season. Whether this plan will have the desired effect remains to be seen.

October also ushers in a new insurance regime associated with the Thai O-A retirement visa, as opposed to the O retirement visa extension issued by Thai Immigration officials in-country. Those wishing to obtain or maintain a Thai O-A retirement visa will now need to show that they have at least 3 million baht in insurance coverage, or the equivalent amount of funds in a Thai bank account if a visa extension in O-A status is sought.

There are many who ponder whether the end of the emergency decree will also result in faster processing of certain US visas. It remains to be seen whether this development will have any appreciable impact upon the US Immigration process, especially Consular processing, but it stands to reason that this development could only operate to the benefit of those seeking immigration benefits for the USA.

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As the Immigration system in the Thailand increasingly normalizes two major events are near on the horizon with respect to Thai Immigration policy. The most pressing development is the introduction of the Thai Long Term Residence Visa (which is NOT actually a visa which confers permanent residence in Thailand). To quote directly from a recent article in the Bangkok Post:

Since the lifting of the strict lockdown in the first quarter of 2022, and the decrease in the number of Covid-19 cases, the Thai economy has shown signs of recovery. However, Thailand still faces a battle in bringing its economy back up to pre-pandemic levels in order to compete with its Asean neighbours, not to mention the world. Therefore, in June this year, the Royal Gazette formally announced the introduction of an initiative between the Ministry of Interior (MOI), the Ministry of Labour (MOL), and the Board of Investment (BOI) in the form of a Long-Term Resident (LTR) visa that is designed to attract a new wave of foreign direct investment (FDI) and knowledge transfer experts….Furthermore, while some of the related official regulations were enforceable in the middle of this year, others will be gradually implemented from the end of August 2022 to early September 2022 as the BOI plans to start accepting applications from Sept 1, 2022, onwards. However, there has been no announcement regarding the actual starting date or official online system to support the applications.

Although these visas seems unlikely to be utilized broadly, it does appear to be government policy to attract “High Net Worth” individuals to Thailand. Meanwhile, changes are also set to take effect with regard to the O-A retirement visa, to quote directly from the Pattaya Mail:

Special rules apply to those retirees with an O/A annual retirement visa issued by Thai embassies abroad. They need comprehensive, not Covid only, medical insurance worth US$100,000 to obtain the visa in the first place. They will also need it on applying for an annual extension of stay at immigration offices, although the amount is much smaller – around US$13,000 or 400,000 baht for hospitalization – until October 2022. Thai Cabinet news releases last year stated that the renewal insurance minimum would rise to US$100,000 on that date.

September and October appear to be months where major changes to Thai immigration policy will transpire. It is notable that this is all occurring while major changes are taking place with regarding to Thai visa exemption stamps and visas on arrival are poised to provide double the status to those eligible upon entry to Thailand. It will be interesting to see exactly how these developments play out from a practical perspective.

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The Thai Immigration system remains in something of a state of flux, although the overall trend is positive. Many of the travel restrictions which had previously been imposed in Thailand have now been lifted. For example, Thailand Pass has been totally mothballed. However, there are presently a number of changes to Thai retirement visas which appear imminent. Notably, the Thai O-A retirement visa‘s insurance requirements appear likely to increase substantially in coming weeks. to quote directly from a entry of Legal.co.th regarding Thai retirement visa insurance:

[I]t was announced that O-A Retirement visas are going to see the insurance coverage requirement go up to 100,000 US Dollars or self-insurance thereof, so roughly the equivalent of 3 million Baht basically shown in a Thai bank account in order to maintain O-A Retirement Visa status.

Meanwhile, insurance seems to be a rather nettlesome issue as a proposed “Tourism Fee” has proven difficult to implement while many question the need for such a measure especially as the tourism sector in Thailand is tenuously recovering. Although it now appears this initiative has been suspended. Another issue recently in the news, seemingly unconnected to immigration policy, pertains to Thai real estate law. It seems proposed “Long Term Residence Visas” (albeit something of a misnomer as these travel documents do not confer permanent residence in Thailand) may allow foreigners to own Thai real estate under limited restrictions. However, even this proposal seems to be under serious scrutiny. To quote directly from a recent article in the Bangkok Post:

A property executive who requested anonymity said many Thais might disagree with the government’s attempt to attract affluent foreigners by granting them full land ownership of one rai for residential use. “It’s good that the government wants to boost the economy by attracting foreign investment,” said the executive. “Thailand is very attractive among foreigners. They want to stay here as our medical services are good, the cost of living is low, the food is superb, and we have a lot of international schools for their children.” However, some locals think it is unfair to them, as many still cannot afford to buy property.

Clearly, the notion of foreign nationals being able to acquire residential real estate in Thailand is not a settled issue. Furthermore, based upon prior announcements from the Thai Land Office it seems that land ownership in Thailand associated with LTR visa status may never be a reality in Thailand.

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There have been a number of changes in Thailand in recent weeks, most notably: the Thailand Pass system (which has persisted since March 2020 with the creation of certificates of entry). This system has proven to be a major hindrance to the recovery of the tourism sector in Thailand. Many in Thailand and around the world are happy to see the end of the system. Another significant change in recent weeks has been the repeal of the mask “mandate” (a supposed requirement notwithstanding a lack of legal codification) requiring people to wear a mask even in outdoor public places. The repeal of this “mandate” will likely prove a boon to the tourism industry in Thailand as these requirements (regardless of their legal foundation) may have put off a number of prospective travelers to Thailand.

On the Thai Immigration front, there have been several announcements in recent weeks regarding the creation of the Long Term Residence, or LTR, visa in Thailand (a “residence” visa in name only as these proposed visas appear to be non-immigrant in nature although they confer a substantial portion of lawful status in Thailand, namely 10 years). There appear to be four subcategories to choose from for the prospective long term “resident” in Thailand. One category appears aimed at high net worth retirees, while another is for those who invest significant capital into Thailand, another seems geared to long staying professionals, and finally there appears to be a “digital nomad” LTR visa. However, September is the earliest that it seems such visas will be available. Concurrently, it is noteworthy that this new visa category is unlikely to be utilized by a broad segment of the expat population in Thailand, but actual usage remains to be seen.

All of this news comes on the heels of a general easing of rules regarding establishments’ opening hours in Thailand as tourists begin to trickle back into the Kingdom and enjoy the various entertainment venues the country has to offer.

On the United States Immigration front, the backlog of cases continues to cause relative delays in processing compared to times past. Many are waiting longer time periods to see visas such as the K-1 visa to be issued. Meanwhile, those seeking immigrant spouse visas, such as the CR-1 visa or the IR-1 visa are dealing with increasing delays due to the review process at the National Visa Center. Hopefully these issues will abate throughout the remainder of 2022, but such developments remain to be seen.

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It has recently come to this blogger’s attention that the Thailand Pass, a system not unlike the US’s Electronic System for Travel Authorization (also known as ESTA), will remain in place for at least the immediately foreseeable future. To quote directly from Thai PBS World:

The Centre for COVID-19 Situation Administration (CCSA) will not scrap the “Thailand Pass” scheme, as has been widely anticipated, but will shorten the registration process for overseas tourists applying to enter Thailand as the “Test and Go” one-night quarantine scheme for the fully vaccinated is scheduled to come to an end on April 30, CCSA assistant spokesperson Sumanee Wacharasint said today (Thursday). Dr. Sumanee added, however, that when COVID-19 situation in the country steadily improves, the CCSA may consider further easing of restrictions. She explained that there are currently four steps in the “Thailand Pass” application process, namely checking of vaccination certification, checking of the evidence of advanced hotel bookings, checking of proof of insurance coverage while in Thailand, and proof of booking for RT-PCR testing…Meanwhile, Prime Minister Prayut Chan-o-cha will personally oversee preparations by all agencies to cope with overseas arrivals, once the “Test and Go” scheme ends on April 30, according to Traisulee Traisoranakul, deputy spokesperson for Government House today (Thursday).

The Thai Pass has proven to be an obstacle to seeing tourism fully recover in Thailand as many prospective tourists do not wish to undertake the process of getting a Thailand Pass issued. That stated, there is reason to be hopeful for the return of tourists to Thailand as a substantial amount of obstacles have been removed for both vaccinated and unvaccinated travelers wishing to gain admission to Thailand. Most notably, either of the aforementioned groups of travelers, with correct documentation, can now avoid the need to quarantine in a Thai hotel. This requirement, sometimes referred to as the Test and Go program, has been removed.

Notwithstanding recent announcements from the Biden administration regarding the desire to decease the Immigration case processing backlog, US visa cases are still processing in a relatively slower manner than they were prior to the pandemic. This seems to be especially true in cases where applicants are seeking immigrant spouse visas, such as the CR-1 visa and the IR-1 visa, for the USA. The National Visa Center seems to be a major sticking point in terms of overall processing time. For this reason, some prospective immigrants are opting to use the K-1 visa rather than an immigrant spouse visa in order to gain admission to the USA more quickly. Hopefully the situation will improve over the course of the rest of the year and we will update this blog accordingly.

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Thai Immigration rules have been easing substantially in recent weeks. However, the Thailand Pass remains a rather obtuse obstacle for many would-be travelers to Thailand. It appears that is vexing issue may soon end. To quote directly from Thai PBS World:

The Ministry of Tourism and Sports will propose to the Centre for COVID-19 Situation Administration (CCSA) that the “Thailand Pass” requirement for all international arrivals be revoked and that the RT-PCR COVID-19 tests required upon arrival be replaced with the quicker Rapid Antigen Tests. According to Tourism and Sports Minister Phiphat Ratchakitprakarn, the replacement of the RT-PCR test on arrival, tentatively set to start on May 1st, with antigen tests conducted by formal medical facilities, would only be possible if COVID-19 infections and deaths during and after the long Songkran long holiday in April remain stable, at between 50,000 and 60,000 cases a day, including those who have only tested positive using antigen tests and daily fatalities do not exceed 100.

Although it remains to be seen if the Thailand Pass will be terminated, as of the time of this writing an end to the PCR test prior to departure for Thailand appears to be on the cards. Should this come to pass, it would substantially improve the present protocols associated with entry to Thailand. It is hoped that this will spur demand in the Thai tourism sector. Meanwhile, there appears to be some really good news with respect to US visa processing. To quote directly from the USCIS website:

Today, U.S. Citizenship and Immigration Services is announcing a trio of efforts to increase efficiency and reduce burdens to the overall legal immigration system. USCIS will set new agency-wide backlog reduction goals, expand premium processing to additional form types, and work to improve timely access to employment authorization documents. Due to the COVID-19 pandemic and resource constraints resulting from the prior administration, USCIS inherited a significant number of pending cases and increased processing times. Through today’s actions by the Biden administration, USCIS is acting to reduce these caseloads and processing times, while also ensuring that fair and efficient services are available to applicants and petitioners…To reduce the agency’s pending caseload, USCIS is establishing new internal cycle time goals this month. These goals are internal metrics that guide the backlog reduction efforts of the USCIS workforce and affect how long it takes the agency to process cases. As cycle times improve, processing times will follow, and applicants and petitioners will receive decisions on their cases more quickly. USCIS will increase capacity, improve technology, and expand staffing to achieve these new goals by the end of FY 2023. The agency’s publicly posted processing times show the average amount of time it took USCIS to process a particular form – from when the agency received the application until a decision was made on the case. Internally, USCIS monitors the number of pending cases in the agency’s workload through a metric called “cycle times.” A cycle time measures how many months’ worth of pending cases for a particular form are awaiting a decision. As an internal management metric, cycle times are generally comparable to the agency’s publicly posted median processing times. Cycle times are what the operational divisions of USCIS use to gauge how much progress the agency is, or is not, making on reducing our backlog and overall case processing times.

Although it is highly unlikely that this will have an immediate impact upon overall processing times, especially for K-1 visas for fiances and K-3 visas for spouses (not to be confused with IR-1 or CR-1 visas), it is likely that this will reverse a troubling overall trend in the American immigration apparatus and hopefully we will begin to see more normalized processing times by the end of 2022.

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In what can only be described as good news for the tourism industry in Thailand, it appears the re-introduced “Test and Go” scheme is about to be less cumbersome. To quote directly from a recent article in the Bangkok Post:

The government will further relax entry rules for foreign visitors starting next month, bowing to demand from the local tourism industry to lower costs as more countries ease border controls to lure holidaymakers. Vaccinated arrivals to Thailand will not be required to undergo a mandatory polymerase chain reaction test on the fifth day of the arrival starting March 1. Instead, they can do a self-antigen test, scrapping the requirement to have a confirmed hotel reservation for the test. The Centre for Covid-19 Situation Administration (CCSA), the main virus task force chaired by Prime Minister Prayut Chan-o-cha, also lowered the minimum medical insurance coverage for visitors to no less than $20,000 from $50,000.

The 5 day test requirement proved to be a major sticking point for many prospective travelers especially as it created a rather expensive accommodation requirement. It is also noteworthy that insurance requirements have been eased as well. Insurance requirements have proven to be a point of concerns for many would-be tourists to Thailand. It is also a concern for many retirees in Thailand. This is especially the case as new regulations are set to come online in October which would require those with an O-A retirement visa to obtain 100,000 USD coverage for health insurance. For those unable to obtain such coverage, it may be possible to utilize new rules allowing for “self-insurance“. That stated, the requirements would mean a substantially higher burden on some prospective retired expats. It is worth nothing that these requirements do not appear to apply to those holding an O retirement visa, but only the O-A subcategory.

The Thailand Elite Visa will now have the option for issuance of a Thai work permit, but with a price tag of 32 million Baht, and the fact that the Elite visa does not confer Thai permanent residence, it seems unlikely that a large number for foreign nationals will avail themselves of the privilege.

Meanwhile, in an American immigration context, backlog appears to be the greatest overall concern. Quoting directly from a recent article from the Guardian:

America’s immigration courts are struggling to function at the most basic level, with courts that are already woefully understaffed and judges often undertrained now overwhelmed by a growing backlog of more than 1.6m cases, industry leaders have warned. The system is so damaged that judges, scholars and attorneys all share concerns about whether immigrants due in court will even receive notice before their hearings so they know to show up and aren’t ordered deported in absentia – an urgent concern made worse by volatile immigration policies at the US-Mexico border.

Many similar issues are occurring in the Department of Homeland Security’s U.S. Citizenship and Immigration Service (USCIS) as backlogs and slow processing plague cases of those seeking a K-1 fiance visa or marriage visas such as the K-3 visa or the immigrant spouse visa categories such as the CR-1 or IR-1 visa. There is legitimate concern that these backlog issues are straining the underlying relationships in these cases to the point where they are sometimes destroyed. Hopefully these issues will be rectified in the foreseeable future.

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It appears that officials in Thailand may be planning to resume the “Test and Go” initiative in an effort to spur tourism to Thailand. To quote directly from the Bangkok Post:

The expected resumption of the Test & Go tourism scheme in February should allow the country to attract at least 8 million tourists this year, says the Tourism and Sports Ministry. Tourism and Sports Minister Phiphat Ratchakitprakarn said his ministry plans to push for the resumption of the quarantine-free Test & Go scheme next month as this proposal is scheduled for discussion at the Centre for Covid-19 Situation Administration meeting on Jan 20….The resumption of Test & Go in February still allows enough time to reach 8 million arrivals this year, he said.

Clearly, tourism numbers have suffered since the suspension of the “test and go” program and although actual resumption of the protocol remains to be seen, it can be surmised from numbers prior to the program’s suspension that the reopening of the country would bring in much needed revenue to Thailand’s ailing tourism industry. Meanwhile, on a related note, it appears Immigration authorities in Thailand are seeking to create a new set of visas to lure “high net worth” foreign nationals to the Kingdom. To quote again from the Bangkok Post:

The cabinet on Tuesday approved visa changes intended to attract affluent foreigners for lengthy stays, targeting the rich, retirees, remote workers and skilled professionals…Deputy government spokeswoman Rachada Dhnadirek said the new regulations were in two draft ministerial announcements submitted by the Interior Ministry and the Labour Ministry…They target foreigners with enormous wealth, wealthy pensioners, foreigners who want to work remotely from Thailand, and highly skilled professionals. The Interior Ministry proposals provide for long-term residence (LTR) visas, each for up to four family members including children up to 20 years old. The Board of Investment will set the qualifications of the applicants.

It should be noted that the proposed visa scheme remains approved only in principle as the regulatory structure has yet to be fully “ironed out.” However, there are some clues as to what this visa regime may ultimately look like. For example, the integral participation of the Board of Investment in Thailand leads this blogger to believe that the proposed visa scheme will ultimately look very similar to the current SMART visa program which has been operational in Thailand for a bit less than 5 years as of the time of this writing. Although the final rules regarding this proposal have yet to be promulgated so the final criteria for visa approval remain to be seen.

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