US Visa Immigration in Thailand

Until relatively recently, Thais and their American partners had to endure long waits for immigrant visas to become available before they could reunite in the US.  Today, the K1 and K3 Non-Immigrant visas offer opportunities to expedite the procedure.

The K3 visa Thailand is a spousal visa for couples who have been married outside of the United States.  Its features and procedure differ slightly from those of its sister visa, the K1.  Benefits include fewer restrictions on the spouse and lower costs but its chief disadvantage is chronological.  The fastest way to bring a Thai partner to the United States is the K1 fiancée visa.

The K1 visa Thailand is a dual intent visa for fiancé(e)s of American citizens.  It requires the couple to marry within 90 days or the foreign fiancée must leave.  Once married, the foreigner may adjust his or her status to become a lawful resident of the United States.

Petitioning for a K1 visa is an intricate, multistep process that requires careful attention to detail and a lot of patience.  The procedure is as follows:

Phase 1: 

The U.S. citizen collects information, finalizes forms, and submits the K1 visa petition (form I-129F) to the United States Citizenship and Immigration Services (USCIS) Service Centers in either California or Vermont depending on the state in which the citizen resides (or last resided for those currently living abroad).  Americans who can prove (using passport visa stamps, work permits, etc.) they have resided in Thailand for over one year to date may be able to submit the forms to the Bangkok USCIS office, which usually has a shorter processing time than the U.S. Service Centers. 

Phase 2:

Upon receipt of the visa application, the USCIS will send the petitioning citizen Notice of Action 1.  Notice of Action 1 indicates acknowledgment of the petition and initial processing.  If the U.S. citizen uses a US immigration attorney, the USCIS will send the petition directly to the attorney (your appointed representative) who will then forward it to the petitioning citizen.  NOTE:  Petitioners using representatives should take care to ensure that they are being represented by licensed attorneys and not “providers” or “facilitators”. 

Phase 3:

In the intervening time between Notice of Action 1 (NOA1) and Notice of Action 2 (NOA2), the USCIS processes the petition.  It is essential that the petition documents are carefully organized and completed correctly.  Mistakes, omissions or errors can seriously delay or jeopardize the application process.  At this stage, the USCIS may issue a Request for Evidence (more proof of a genuine relationship).

Phase 4:

When the USCIS approves a petition, NOA2 is sent to the petitioner.   NOA2 indicates that the petition is being forwarded to the National Visa Center (NVC). 

Phase 5:

The NVC conducts background checks on the Thai fiancée over a period of 3-4 weeks (on average) before sending the petition on to the U.S. Embassy in Thailand.

Phase 6:

Once the U.S. Embassy in Thailand has received the petition, it will notify the Thai fiancée of his or her visa interview date and the documentation required for visa issuance.  This is called Packet 3.  The fiancée (or licensed attorney) will need to collect documents, get legalized translations and go over interview questions to prepare.  The Embassy may request more information ( a “221 [g]”) which will entail a return trip to the embassy for the Thai fiancée (or attorney).

Phase 7:

Once any 221 (g) requests have been satisfied the visa will be granted and the Thai fiancée can usually pick up his or her passport with the visa stamp within a few days.

ELAPSED TIME:

The average time between the initial application submission and visa issuance for the K1 visa is six months, but anywhere from 4-8 months is common.  This compares with 8-12 months for the K3 visa and longer for the IR1 and CR1 (Immigrant) visas. 

Related Articles:

A Thai Lawyer’s Perspective on K1 and K3 Interviews at the US Embassy in Bangkok

Filing for US Immigrant Visas at the USCIS in Bangkok

Categories : K1 Fiancée Visa, K1 visa Thailand

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Whether you’re a novice sailor or an old salt, sailing the seas of marriage demands that there are certain things you should know about marriage in Thailand.  Yes, of course, this time it’s for real and you’ve set course for “happily ever after”, but the chances for a successful marriage nowadays are nearly equal to successfully navigating a voyage around the world in a rowboat.  Statistics show us that when you set sail upon the seas of marriage, you’ve got a 50/50 chance of making it to the other shore.  With statistics like this, any sailor should think carefully before setting sail under these unpredictable conditions. In Thailand, laws have been enacted to protect both parties in marriage and a Thailand prenuptial agreement can protect you from having to endure the stormy seas of a divorce in America.

Thailand Prenuptial Agreement

We’ve all heard the stories of the ironclad prenuptial agreement, but the facts tell us that this is a myth.  Many judges in a Western jurisdiction may strike down nearly any prenuptial agreement if there is the hint of impropriety that is justifiable under the law in the formation of the agreement.  Anything from non-declaration of assets, to your spouse not receiving adequate legal counsel before the signing, have led to agreements being struck down, with the offending spouse then subject to local laws which can circumvent the intent of the contracting parties altogether.  When seeking asset protection in Thailand or anywhere else, the would-be candidate will find that a Thailand prenuptial agreement has definite advantages.

In a Thailand marriage and a Thailand divorce, a Thailand prenup is registered with the government at the same time the marriage is registered, and approved by local authorities so long as it conforms to requirements set forth under Thai law.  The issue of conflict of law and the choice between laws from different jurisdictions is a difficult concept.  Divorces can be adjudicated by applying Thai laws in US courts or US laws in Thai court. An agreement drafted and executed in Thailand tends to favor a court decision for resolution of marriage issues in Thailand or pursuant to Thai law, and can lessen the chance for the U.S.-Thailand divorce to be heard and adjudicated by American courts or have US laws applied in a US court. 

US-Thailand Prenuptial Agreements

For Thai-US prenuptial agreements drafted and executed within of Thailand, the law is quite clear.  Such documents are null and void unless registered in Thailand according to Thai law.  Thus in a US-Thailand divorce, Thai courts will not uphold any provision of the agreement, as it fails to satisfy Thai law requirements. Further, even in US courts, Thai law may be the law applied. Therefore, a prenuptial agreement executed in Thailand but that is in violation of Thai law may be struck down. 

Where the marriage takes place is also of great importance.  Marriages that take place outside of Thailand and the ensuing American-Thai divorce, for example, have a much better chance of being governed by the laws where the marriage took place.  Since most foreigners have assets in their own country, that same divorce court has jurisdiction over the property the litigant is trying to protect.  Whereas a marriage and prenup registered in Thailand would normally call for the divorce proceedings to be heard in a Thai court, which has no jurisdiction over a foreigner’s assets that he or she holds in his or her own country.

Under Thai law, marital assets are divided into two categories:  Separate property is property gained by either party before the marriage and Community property is property acquired during the marriage.  A competent attorney can help the individual identify Separate property before the marriage in the prenuptial agreement and thus greatly diminish the chance that this property be divisible between the parties.  These are general rules, of course, and as in most legal actions, decisions are made on a case by case basis, since actions and intents of the parties vary in each case.

Just as an experienced sailor would not set sail without sufficient supplies and equipment on a voyage of discovery, an individual contemplating marriage with a Thai national should take proper care.  He or she should find an attorney competent in the area of family law, who has lengthy experience in such matters, and who is learned in the laws of both Thailand and America or any other jurisdiction outside of Thailand.  Also, be sure that your law office is completely bilingual, and do check credentials and certifications to insure that your interests are protected by a law professional.  Law offices that have a U.S. immigration lawyer in Thailand would be a good place to begin your research.

Good luck on your voyage of discovery and remember that diligent preparation will help you through those stormy waters and hopefully you will find your “happily ever after” on the seas of domestic tranquility.

Related Pages:

Thailand Divorce

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We have an Ironclad Prenuptial Agreement and Other Myths

Categories : Divorce Thailand, Marriage Thailand, Prenuptial Thailand, US Visa, US Visa and Immigration

Tags: international prenuptial agreement, prenuptial agreement Thailand, US-Thailand divorce

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The US Department of State has announced a fee increase for Nonimmigrant Visa applications, which includes the K1 Visa Thailand and K3 Visa Thailand, effective 4 June, 2010.  The fee increase is related to the new Machine Readable Visa (MRV) process, whereby all Thai US visa applicants attending the visa interview are now required to show a receipt for the MRV application fee.  Consequently, there is no longer a single fee for non immigrant US visas. 

The US Embassy in Bangkok has recommended that if one is not sure which visa category requires the MRV application fee, to pay the Thai baht equivalent of US140, and the Embassy will determine the correct fee at the visa appointment and how to pay the difference.  Their press release goes on to say: “Only those individuals instructed by a consular officer not to pay are exempt from paying the non-refundable MRV application fee”. 

The MRV visa application fee can be paid at Thai post offices.  The US Embassy will not allow applicants to pay the fee at the US Embassy Consular Section. 

Below are the nonimmigrant MRV Visa Application Fees:

Thais that have been sponsored by a US citizen and are applying for the K1 Visa Thailand, K2 Visa Thailand, K3 Visa Thailand, and K4 visa Thailand must now pay US $350. 

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Bringing the Children of a Thai Spouse to America: K2 and K4 Visas

Categories : K1 Fiancée Visa, K1 visa Thailand, K2 visa Thailand, K3 Visa Thailand, K4 visa Thailand, US Embassy Bangkok, US Embassy Thailand, US Immigration Reform, US Visa and Immigration, k3 marriage visa Thailand, us visa Thailand

Tags: US Embassy Thailand, US Visa fees

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Over the course of our twenty years of experience in US visa and immigration from Thailand, we have witnessed a number of changes in policy procedures.  In previous administrations, inquiries concerning “bar girl” or “escort” status among Thailand US visa applications was quite low.  However, beginning approximately at the time of the new federal government in 2008, we have noticed an increase in reports from other lawyers and visa consultants concerning cases where the US Embassy has taken a hard line against Thai women suspected of being involved in the “escort industry”.

Grounds of Prostitution

According to the US Immigration and Nationality Act, there are a number of grounds upon which a US visa can be denied.  Engaging in acts of prostitution over the past ten years is just one such ground of denial, one that is:  “coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status”. 

According to the worldwide statistics in 2009, 44 persons were denied visas as a result of suspected involvement in prostitution and nine of those that were denied on this ground subsequently received a waiver.  Out of almost two and a half million visa denials worldwide, denial on the grounds of prostitution was a rather small proportion. What the statistics do not take into account is that many couples will abandon the application rather than face a full visa denial. 

Preparing for the US Embassy Interview

The US Embassy in Bangkok conducts interviews with those that have been sponsored by a US citizen and applied to enter the US on either a K1 Fiancée Visa Thailand or a K3 Marriage visa Thailand. Although we are able to assist lawyers who have failed to prepare for increased scrutiny as to the past history of visa applicants, the old adage “an ounce of prevention is worth a pound of cure” would seem to apply.   A US immigration attorney, Thailand based, would be able to inform and advise in advance before the problem arises. 

Related Articles:

Waivers of US Visa Denials and Waivers in Thailand

A Thai Lawyer’s Perspective on K1 and K3 Visa Interviews at the US Embassy in Bangkok

Related Pages:

US Immigration lawyer Thailand

US visa waivers Thailand

Categories : K1 Fiancée Visa, K1 visa Thailand, K3 Marriage Visa, K3 Visa Thailand, US Visa Waiver Thailand, US Visa and Immigration, USCIS, fiancée visa Thailand

Tags: K1 fiancée visa Thailand, k1 visa interview thailand, K1 visa Thailand, k3 marriage visa Thailand, k3 visa interview Thailand, K3 Visa Thailand, prostitution waiver Thailand, Thailand bar girl, us embassy bangkok interview, US Fiancé visa Thailand, US K1 Visa, US K3 Visa, US Marriage Visa Thailand, USCIS

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Getting married can be stressful enough. However, few experiences can be more trying than getting divorced. So making the right choices and understanding the system before tying the knot can save great aggravation later on.

Marriages between US and Thai citizens are becoming more common and, once hitched, couples often plan on living in America. To do this, unfortunately, requires a great deal of bureaucratic paper work.  Usually, as long as the marriage is genuine and there are no pre-existing barriers to immigration, the Thai spouse can usually stay in the US, and even if things end badly, they may still be allowed to remain.

Various US Visa Thailand Choices

For any Thai spouses of US citizens thinking of immigrating to the US, there are two main visa options: the K1 Fiancée Visa Thailand and the K3 Marriage Visa Thailand. Both have pros and cons:

• K1visa Thailand: Pros are it’s faster to obtain and allows a trial period in the USA. 
• K3 visa Thailand: It’s cheaper, depends on marriage in Thailand and allows for easier travel.

Getting either the k1 or k3 visa means a Thai partner will be allowed entry to the USA. But what if the marriage fails: do they have to go straight back home? Not necessarily.

If the marriage has lasted long enough (usually two years) and officials are convinced the relationship is legitimate, then the Thai partner may, under certain conditions, be able to remain in the US.

Conditional Residency

The first thing a Thai spouse on a K3 visa receives when they enter the US is ‘conditional’ permanent residence, assuming the marriage happened within the previous two years. The important part here is ‘conditional’.

Several things can happen that could lead to the spouse being deported. Should immigration officials feel the Thai spouse is in America fraudulently, or the marriage is a sham, the permission to stay may be challenged. Any child of the foreign spouse on a K4 visa could also suffer US immigration law consequences.

Does divorce = deportation?

Divorce within the two-year window will also usually end the conditional status of the Thai partner. If this unfortunate circumstance happens it’s important to talk to an US immigration lawyer. Several factors may facilitate evidence to support a Thai spouse to remaining in the US, for example:

-  If the foreign partner can show the marriage was genuine

-  If the marriage produced a child

-  If the couple own property together

-  If the Thai spouse was physically abused during the marriage

-  If deportation would mean facing ‘extreme hardship’

Once the two-year wait is up, for a foreign spouse of a US citizen, it’s possible to get permanent residence status, and then citizenship within three years (usually you have to wait five years).  There are other conditions, however, that must also need to be met. 

Fraud and Abuse

If a US citizen thinks they’ve been duped into marriage so that their Thai fiancée/fiancé can gain a K3 visa in Thailand, and then a Green Card through marriage, there are steps that can be taken. The flip-side is that the US citizen could theoretically also face criminal charges if they knew the marriage was a sham.  This is a serious offense and prosecutions can and do occur on a regular basis. 

If a Thai partner has been beaten while being married, she may qualify for special treatment in the US thanks to the Battered Immigrant Women Protection Act (2000).

Divorce in America doesn’t automatically mean the Thai spouse has to pack their bags – but it does mean they need to know their rights.

Related Articles:

Marriage and Divorce in Thailand: When Love Turns Deadly

Bringing the Children of a Thai Spouse to America: K2 and K4 Visas

Categories : K1 fiancée visa Thailand, K1 visa Thailand, K3 Visa Thailand, US Visa and Immigration, k3 marriage visa Thailand, us visa Thailand

Tags: K1 visa Thailand, K3 Visa Thailand, us citizenship Thailand, us immigration and divorce, US Marriage Fraud Thailand

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American military operations overseas have resulted in mass US immigration, through either a) marriage with women in the countries where they are stationed, Vietnam, for example; b) countries where they engaged in R+R, such as the case of Thailand; c) or refugees fleeing to the US from wars in which the US military is engaged.     

MILITARY MEN and THEIR ‘WANDERLUST’

Korean wives of US soldiers made up a significant number of refugees immigrating into the US with the end of the war in 1953. The ‘War Brides Act’ (1946) initially smoothed the way for military brides. Close to 25% of Korean immigrants currently living in America trace their roots to a wife of a US soldier.

During the Vietnam War, US soldiers met Vietnamese women working at military bases. Thousands of American soldiers formed relationships with Vietnamese women. Whether originally seeking friendship or sex, most of these relationships ended with wounded-hearts. But many flowered into cross-cultural marriage.

TROPICAL PASSION

The tourist sex-industry in Thailand can be connected back to rowdy (and randy) US soldiers on leave from the Vietnam War. In 1964, seven US military bases were established in Thailand. In 1967 Thailand formally began providing ‘rest and recreation’ services for US military men in Thailand. The go-go bars soon followed. Of course, a certain number of Thai girlfriends of American servicemen also became their wives.

More than 150,000 Thais were living in the US at the time of the 2000 Census. Interestingly, 4,000 of those resided in Nevada. Thai immigration to Nevada began in the 1960s. The first were wives of US soldiers stationed at one time on ‘R+R’ in Thailand during the Vietnam War. The enamored US military men were eventually re-assigned to Nellis Air Force Base. The ethnic-Thai population in surrounding Clark County, Nevada is estimated to be over 10,000.

DESERT LOVE

Cross-cultural affairs are harder to come by for US servicemen in Iraq and Afghanistan. The obstacles to gender-mixing between American military men and Muslim women include built-in cultural barriers – on both sides. In 2003 two members of the US National Guard married Iraqi women – specifically against their commander’s ‘orders.’

After the double-wedding the Iraqi brides, both physicians, faced difficulties obtaining visas (because the US State Department was not issuing visas in Iraq at the time); and faced serious threats by fellow Iraqis, who accused them of national-betrayal. The National Guards were restricted to base and not allowed to speak with their new brides. The soldiers were held under investigation for failure to obey orders. The US military-husbands were forced to appeal to officials outside of the military for support in the visa-process for their wives.

RETURN TO THE LAND OF SMILES

Today, US soldiers still find romantic-refuge from military exercises and the wars in Iraq and Afghanistan in Thailand.

During the Gulf War, ships voyaging back to the US anchored off the coast of Thailand for soldier ‘recuperation.’ Starting in 2005 with Operation Iraqi Freedom, a new program allowed US military on 12-month orders in Iraq and Jordan 15 days special-leave. After too much time in the dry desert climate, many made their way to tropical Thailand.

US joint military drills have been held annually in Thailand since the 1980s. Sea-salt encrusted sailors are always allowed shore-leave. US ships docking at Thai ports flood Pattaya and Phuket with up to 6,000 soldiers at a time.

The Cobra Gold war-games, which started in 1998, is the latest of these combined Thai-US exercises. With the knowledge that all’s fair in love and war, Navy officers have expressed concern to Pattaya government officials over the safety of their soldiers harboring in the city while on leave from these war-games.  

And American soldiers keep coming back for more: most recently, in mid-April of 2010, the USS Blue Ridge (based in Japan) arrived off the coast of Pattaya with more than 1,000 anxious sailors on board.

FLOWER or SOUR?

Marriage to American war veterans has been one of the main gateways for migration to the United States for Asian women.

Thai-American cross-cultural marriage is rooted in the US military presence in Thailand and an overwhelming number of Thai-Americans at this time are women married to non-Thai men.

Though US soldiers on leave in Thailand are warned about the ‘dangers’ of developing a relationship with a Thai woman – it can also be said that real love leading to long-term marriage is not entirely impossible for US solders setting foot on shores of Thailand.

Categories : K1 Fiancée Visa, K3 Marriage Visa, K3 Visa Thailand, US Visa and Immigration, us visa Thailand

Tags: K1 fiancée visa Thailand, K1 visa Thailand, k3 marriage visa Thailand, K3 Visa Thailand, military and us immigration, military personnel, us citizenship, US Fiancé visa Thailand, US K1 Visa, US K3 Visa, US Marriage Visa Thailand

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The sentencing earlier this year in Seattle’s U.S. District Court of Varee Bradford, the owner of a chain of Thai restaurants, to six months’ imprisonment for arranging sham marriages, has turned the spotlight on marriage fraud as a means of circumventing the provisions of American immigration law to allow foreign nationals to secure a prized “green card” or permanent residency in the United States.

Bradford, herself an immigrant to the US of fifteen years standing, had pleaded guilty in October 2009 to Conspiracy to Commit Immigration Fraud, and three counts of Fraud Relating to Immigration Documents. Her indictment followed a three year investigation by U.S. Immigration and Customs Enforcement (ICE). She admitted offering payments of $10,000 to $20,000 to American citizens who were employees of her restaurant chain to marry her Thai-born relatives to make it easier for them to stay in the country.

Almost 2.5 million foreign nationals gained a green card and permanent US residency or LPR (lawful permanent residency status) between 1998 and 2007 by marrying American citizens. In 2006-2007 this was the preferred route for LPR, and accounted for 27 percent of foreign citizens who acquired this status.

The pathway to a green card via marriage to a US citizen is a relatively straightforward procedure.  Applicants for either a foreign fiancée K1 immigrant visa or a foreign spouse K3 immigrant visa follow a similar process. If the documentation is in order, background checks and preliminary local embassy interview and medical examination reports are satisfactory the petition by the American citizen will be approved. An immigrant visa and a conditional green card are issued to the foreign national after a satisfactory visa interview.

Marriage Fraud under the INA

As the law currently stands, marriage fraud is covered by Immigration and Nationality Act (INA) § 237(a)(1)(G), 8 U.S.C. § 1227(a)(1)(G).

Any alien who enters into a marriage for the sole or primary purpose of evading U.S. Immigration law is deemed to have engaged in marriage fraud and is inadmissible on that basis.

Despite the publicity around the recent marriage fraud conviction and sentencing of Varee Bradford there are a number of difficulties in identifying the actual levels of such fraud. Although the internet is awash with truly heart-wrenching stories of US citizens duped by unscrupulous Thai ‘gold diggers’, there is a paucity of disaggregated statistical data relating to marriage fraud.

U.S. Citizenship and Immigration Services (USCIS) does not keep data on the numbers of people prosecuted for marriage fraud. In 2003-2004 although 40,819 people faced immigration charges, only three percent of these charges were related to citizenship, and the number involving marriage fraud is unknown.

The Case of Thailand

What is more, when we consider the absolute number of Thais residing in the United States we can only conclude that the individuals who are involved in marriage fraud – however distressing it is to those who become victims – are miniscule in number.

According to the U.S. Census Bureau 2007 American Community Survey Estimates, 126,312 foreign-born Thais were resident in the U.S., of whom only 60,703 were not already U.S. citizens. This number represents fewer than 0.2% of the U.S. population. In 2007, a total of 274,358 provisional green cards were issued to foreign nationals. How many of these were Thais is not known, but it is certain to have been a very small proportion.

According to many US immigration lawyers in Thailand, as well as immigration advocacy groups, marriage fraud is “exceedingly rare” and it can generally be identified during the interview processes. Some, however, believe that one red flag of the potential for marriage fraud relates to the inability of couples to communicate in a common language. Consequently the American Embassy in Bangkok has commenced interviewing many local Thai visa applicants only in English and may also request additional proof of relationship documentation as a possible deterrent to the abuse of the immigration system.

Categories : Immigration Reform, US Embassy Bangkok, US Visa and Immigration, us visa Thailand

Tags: Immigration Fraud, k3 marriage visa Thailand, K3 Visa Thailand, US K3 Visa, US Marriage Fraud Thailand, US Marriage Visa Thailand

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Protection of Thailand’s Overseas Labor Force: A long way to go

The welfare of Thailand’s economy is tied to a certain portion of its own population migrating abroad in order to gain employment. According to the Thai Ministry of Labor, up to 500,000 Thai nationals seek work outside of Thailand annually.

Thai laborers wishing to work abroad are often managed by recruitment- groups which may prey on those most vulnerable – husbands supporting families, for example, whose primary source of income has been stripped away.

Handlers – owners of farms or companies employing Thai workers in the foreign country – may withhold passports and paychecks, limit outside contact, or provide inadequate living conditions.

THAI WORKERS IN HAWAII

In Hawaii, the two owners of Aloun Farms, brothers Alec and Mike Sous, pleaded guilty earlier this year to ‘conspiring to commit forced labor.’

The case involved 44 Thai migrant agricultural workers who traveled to Hawaii willingly but were then coerced by non-physical means to work for wages less than promised and less than the minimum allowed by US law.

The workers had their passports confiscated by the owners of the farm upon arrival and were reported to be living in storage containers. One of workers managed to tell their story to a counselor at a local community center. The case was then referred to the FBI and prosecuted by the Civil Rights Division within the US Department of Justice.

The two brothers await sentencing and each face a fine of $250,000 and five years in prison. As part of their plea agreement they agreed to pay restitution and assist with the ongoing federal investigation into the trafficking and employment of Thai migrant workers n Hawaii.

The Thai workers each paid $16,000 to traffickers in Thailand. This money was used to pay for air fare and visa fees. The remaining sum was split by the traffickers. The owner-brothers, however, have agreed to make payments to only 24 of the 44 workers, and only half of their original recruitment fee.

Most of the Thai workers had taken loans against their farms, homes and land in order to pay the up-front fees to the traffickers, and are now said to be facing the break-up of marriages over the financial-stress.

WHO’S RESPONSIBLE?

This trend of human trafficking and migrant labor will increase as globalization and environmental stressors caused by climate change create both economic challenges and opportunities.

For example, Thailand is currently facing a drought-emergency in more than 50 of the 76 Thai provinces. The long term drought is seriously affecting farmers’ livelihoods. The lure to search for work abroad is significant.

Many countries, such as the US, do have formal mechanisms in place meant to protect immigrant workers and trafficking victims. In the Aloun Farms case above, the recruitment occurred under the ‘guest worker program’ for temporary and seasonal agricultural workers within the U.S. Department of Labor. This program:

a) Prohibits collecting recruitment fees from workers, and 

b) Requires employers to pay for the workers’ airfare and other required transportation, and housing (including access to groceries and cooking facilities).

Under the US Victims of Trafficking and Violence Protection Act of 2000, however, the Thai agricultural workers in this case qualify as trafficking victims and have respite under this law, including possibly accessing a T-visa, allowing them legal stay in the US. 

The problem is that Thais seeking jobs abroad in many cases do not have access to specific information concerning their rights in that country.

Of course the US should take more active steps so this well-intentioned guest-worker program is not further abused. The Thai Labour Department requires labor recruiters to register themselves, but these regulations are often circumvented by human traffickers.  

So what role does the Thai government have in proactively advocating for its own citizens’ rights who choose to work abroad? And why did the Thai worker in Hawaii report the abuse to a local community center – rather than the Thai Embassy in Hawaii?

Related Articles:

T-VISA for Victims of Human Trafficking

Related Pages:

US Visas Thailand

Categories : Immigration Reform, Recent Legislation, US Visa and Immigration, us visa Thailand

Tags: migrant workers rights, T-Visa, US immigration law

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One aspect of current US immigration law, specifically related to residency requirements, openly allows discrimination in favor of women over men.

A child born in Thailand or anywhere else outside of the US to unmarried parents consisting of only one biological US citizen parent will face less roadblocks to obtaining US citizenship if that child’s US citizen parent is female rather than male.

Put another way, it is more difficult for US men to transmit US citizenship to offspring born abroad and out of wedlock than US women.

Is this unfair gender-based discrimination? The US Supreme Court has just agreed to take on this hot-potato immigration policy.

APPEALED CASE

The appealed lower federal court case now up for Supreme Court review involves Ruben Flores-Villar – a Mexican male petitioning for US citizenship, born to a Mexican mother and a US citizen father. The lower court in California upheld the validity of separate, unequal requirements for US citizen mothers and fathers in cases where these parents conceive a child with a non-American partner.

So, let’s say a US citizen named Steve (last name, say, Crawford) is laid-off from his financial-analyst job in the US and relocates to Thailand. Here he finds work teaching English and eventually as a columnist. After quickly losing his teaching job he impregnates his Thai girlfriend. Even though Steve is a fairly honest tax-paying US citizen, his illegitimate half-Thai, half-American child will face more difficulty gaining US citizenship than a child borne by an unmarried US woman who also moved to Thailand to become a teacher and has this child with a Thai man.    

PRECEDENT CASE

The Ruben Flores-Villar lower court case ruling allowing for gender-based discrimination was based on a previous Supreme Court decision in 2001 (Nguyen v. Immigration and Naturalization Service); The Court declared that ‘sex-based classifications’ do not offend principles of unequal protection if these discriminatory-means serve ‘important government goals.’

In this case the Court ruled that in order for such children to obtain American citizenship, American fathers (but not American mothers) of children born abroad to unmarried parents must provide a court order establishing legitimate paternity rights. 

For children born abroad with only one US citizen parent, who is a female, that mother must have lived in the US continuously for one year. However, the total residency time in the case of citizen fathers is five years (two of which must have been after the age of fourteen). And unfortunately for Steve Crawford, because he was born well before 1986, when changes to immigration law significantly loosened the residency requirements for men, he as a citizen father must have lived in the US for 10 years–at least 5 of those after the age of 14.

An Associated Press writer refers to this pending Supreme Court review as a ‘curious corner of U.S. immigration law,’ an intriguing aspect that pivots on a gender discrimination loophole. In what way does this policy ‘serve important government goals?’

Is the presumption that American men are more likely to have children out of wedlock while abroad than American women?

CONTROVERSIAL JUSTIFICATION

In the 2001 Nguyen v. Immigration and Naturalization Service case the Supreme Court justified unequal gender requirements based on two governmental-interests:  The first being to assure that a ‘biological parent-child relationship exists.’ The Court explains that a ‘mother’s relation is verifiable from the birth itself and documented by the birth certificate. However, a father need not be present at the birth, and his presence is not incontrovertible proof of fatherhood’.

The second governmental-interest cited is the need to ensure that the citizen parent and child have ‘demonstrated opportunity to develop a relationship that consists of real, everyday ties … and, in turn, the United States’.

The Court’s opinion is that ‘…such an opportunity inheres in the event of birth in the case of a citizen mother and her child, but does not result as a matter of biological inevitability in the case of an unwed father,’ because the father ‘may not know that a child was conceived, and a mother may be unsure of the father’s identity’.

Interestingly, the Supreme Court extends this context to ‘young men on duty with the Armed Forces in foreign countries’ – rationalizing that ‘Equal protection principles do not require Congress to ignore this reality.’

Whether justified or not – it is a provocative reverse-discrimination issue.

Are any American men following this?

RELATED ARTICLES:

Bringing the Children of a Thai Spouse to America: K2 and K4 Visas 

Categories : Immigration Reform, K2 visa Thailand, K4 visa Thailand, US Visa and Immigration, us visa Thailand

Tags: paternity rights Thailand, us citizenship Thailand, us immigration policy

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Naturalization is the process of obtaining US Citizenship. Thai nationals marrying a US citizen face fewer overall restrictions and obstacles in the naturalization process than those applicants who are either single or married to a non-US citizen. Foreign national fiancé(e)s and spouses of US military personnel benefit to an even greater degree.

For example, advantages gained by a US military personnel becoming a husband to his Thai fiancée are found in three areas:

1) Consular Procedures  

2) Residence Requirements (applying to the Thai applicant)

3) Financial Requirements (applying to the established US Citizen ‘sponsor’)

Consular Processing Expedition

Consular processing involves the necessary steps taken by a foreign applicant to obtain an Immigrant Visa at a consular post located outside of the US (in Bangkok, for example). A K1 visa (available in Thailand) is considered a step in the right direction for eventual US citizenship.

US immigration visas are tightly controlled by a complex system of worldwide numerical restrictions, and are also based in part on the chronological order of the applicant’s established ‘filing-date.’

However, due to recent changes in the Immigration and Nationality Act (INA) ‘certain eligible’ spouses of US Armed Forces personnel (such as a Thai wife of a US military husband) currently deployed abroad for one year (or recently discharged) may qualify for ‘expedited naturalization.’ This prioritized determination streamlines the naturalization process and may include:

a) Exemption from the need to establish this original visa application filing date

b) Waiver of processing fees

c) Flexibility to file the application in the United States; or at US consulates and military bases outside of the country

Eligible spouses of members of the US Armed Forces may now complete the entire naturalization process outside of the US. Since 2008, more than 400 spouses of members of the U.S. armed forces have naturalized outside of the US.  

Relaxed Resident Requirements 

Residence requirements are not easy to meet for foreign nationals wishing to become official US citizens. For example, according to the Requirements for Naturalization (found within the INA) applicants must have resided continuously as a ‘lawful permanent resident’ (green-card holder) in the U.S. for at least five years before the filing of the application. This time length is reduced to three years in cases where the applicant is married to and living with a US citizen (the US spouse must have been a citizen for all three years). The term ‘resided continuously’ translates to maintaining a physical presence in the US for at least half of the preceding three years ahead of the naturalization filing date. 

However, for foreign nationals who are lawful permanent residents and married to US citizens employed abroad by the Armed Forces, exceptions do exist to these residency requirements. In some cases, the foreign national eligible spouse will not be required to comply with the residence and ‘physical presence’ parameters.

Reduced Financial Requirements

US citizen K1 visa sponsors with fiancée from abroad must first prove financial ability and accept legal responsibility for ultimately financially supporting the fiancée.

Along with the Thailand K1 visa  application, the sponsor must submit an ‘Affidavit of Support’ (Form I-134which details specific evidence of sufficient financial resources) for a foreign national.  The point of this is to assure that the fiancée will not become a ‘public charge’ (someone receiving financial welfare assistance) in the US.

Note that Affidavit of Support is used mainly for K1 visa applications. For those applying for Permanent Residency, Form I-864 is required. In this case, the sponsoring US citizen must prove income and assets at 125% over the established ‘Poverty Line’.  However, in the case of Active-Duty military personnel, only the minimum poverty level must be met.

For a 1-person household the Poverty Line is listed as $10,210 (for military personnel residents in the 48 contiguous States); whereas the calculated 125 percent amount (which applies to non-military personnel) comes to $12,762. [Source:  Federal Register, 2007].

Although this amounts to only a reduction in $2,500 of required assets and income on the part of the US Citizen sponsor at least it – combined with the expedited consular processing and relaxed residence requirements – represents some level of compromise in restrictions for US military personnel wishing to marry foreign nationals. Perhaps with today’s miserable economic conditions in the US these small efforts could eventually make a positive difference in a significant amount of cases.

Categories : K1 Fiancée Visa, K1 visa Thailand, K3 Marriage Visa, K3 Visa Thailand, US Visa and Immigration, us visa Thailand

Tags: consular processing, K1 fiancée visa Thailand, K1 visa Thailand, k3 marriage visa Thailand, K3 Visa Thailand, military and us immigration, military personnel, us citizenship, US Fiancé visa Thailand, US K1 Visa, US K3 Visa, US Marriage Visa Thailand

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