U.S. Visa Waiver for Prostitution


At the U.S. Embassy, the consular officer is given full discretion to determine whether an applicant qualifies for the visa. When the officer states that they have evidence that the applicant has committed an act that prevents them from issuing a visa, the burden of proof shifts to the applicant to prove that they have not committed the action. The officer will attempt to obtain a statement from the visa applicant confirming the accusation. A denial is generally not sufficient. It is difficult to prove a negative of an accusation.

For some young women without a formal education, their applications are closely reviewed for where they have lived and worked. Women who have worked in the service industry such as a waitress or massage therapist in a high tourist area are sometimes unfairly presumed to have engaged in prostitution. The visa applicant should be ready to rebut such accusations with evidence. The United States Embassy in Bangkok does not allow attorneys or the U.S. citizen petitioner to attend the interview.

If the accused applicant cannot convince the consular officer that they have never engaged in prostitution, they could be found inadmissible to the United States because of INA 212(a)(2(D). This section of the U.S. Immigration Code prevents someone who has engaged in prostitution in the past 10 years of obtain a visa.

However, a denial of a visa for prostitution is not the end for the visa applicant. An applicant who has been denied a visa for prostitution can file to waive the finding. Unlike other types of waivers, there is no need to prove extreme hardship to the U.S. citizen relative.

Section 212(h) of the Immigration and Nationality Act provides that the U.S. Attorney General may waive the application of certain crimes including prostitution. The applicant has to demonstrate that their admission would not be contrary to the national welfare, safety, or security of the U.S. and they have been rehabilitated.

For those who have been denied a visa because of a finding of prostitution, the 212(h) waiver is an option to reunite the Thai national with their U.S. Citizen. Evidence of the applicant’s reformation and good moral character is required. The process is complicated and takes about six months to process. Once the waiver is approved, the US Embassy will be notified and the visa applicant will be called in for another interview.

If your visa has been denied because of a finding of prostitution, please contact our office.

Fraudulent Marriages

On February 21, 2016, Mr. Sittichai Boonkeian murdered his 13-year-old daughter and committed suicide by hanging himself on a ceiling fan. His wife, Chonrat Mungmart, believes that Mr. Sittichai committed suicide because of the anxiety and problems associated with their separation.  Mr. Sittichai and his daughter were living in Florida and his wife was in Thailand.

Ms. Chonrat was separated from her husband and daughter as a result of committing immigration fraud. She attempted to bypass a multiple year wait time for entry into the United States by spouses of U.S. permanent residents by entering into a fraudulent marriage with a U.S. citizen. The fraud was discovered and she was removed from the United States.

While there are many problems with the U.S. Immigration system, Ms. Chonrat’s attempt to shortcut through the immigration system had serious consequences and led to the long term separation of her family. Ms. Conrat should have waited because unlike most people, Ms. Chonrat had a legal pathway to immigrate to the United States.

While there are many problems with the U.S. Immigration system, Ms. Chonrat’s attempt to shortcut through the immigration system had serious consequences and led to the long term separation of her family. Ms. Conrat should have waited because unlike most people, Ms. Chonrat had a legal pathway to immigrate to the United States.

There are three pathways for immigration to the United States. Foreign nationals can immigrate through employer sponsorship. They can invest a large sum of money and start a business in the United States. A U.S. Citizen or U.S. Permanent Resident can also file a petition for their immediate relatives. The current wait period for a spouse of a U.S. Permanent Resident is less than three years.

Instead of a three year wait, Ms. Chonrat’s immigration fraud makes her an immigration violator and inadmissible. She was prevented from obtaining a visa to the United States without a waiver. Immigration fraud is one of the grounds for inadmissibility.

The other six categories of inadmissibility are health related grounds such as communicable diseases, certain criminal or drug offenses, economic grounds (foreign nationals deemed to be a “public charge”), intending immigrants who attempted to enter with a non-immigrant visa, previously removed or deported individuals from the United States, and other miscellaneous legal grounds such as polygamy.

Overcoming a finding of inadmissibility is difficult. Individuals who have been found inadmissible will have to submit an application for a waiver of their inadmissibility. These applications have a high evidentiary requirement.

Most immigrant waivers require a showing of extreme hardship to a U.S. Citizen family member. The extreme hardship encompasses economic, social, and psychological hardship. In addition, the application must address why it would be difficult for the U.S. citizen to move to the waiver applicant’s home country. The decision to grant the waivers are discretionary and very difficult to get approved.

There are many people in the world who are desperate to go to the United States. They listen to rumors, people who have unsubstantiated advice, or scammers who provide false options. Potential immigrants need to understand that there are limited options to legally entering the United States.

Some people do not currently qualify to immigrate. However, people lives and immigration laws are constantly changing. These changes may open future avenues for immigration to the United States.

However, when someone has been found to have committed immigration fraud, they are permanently barred from entering. With the exceptions of waivers in limited circumstances, they have closed their door to obtaining a visa to entering the United. States.

Law, Life, and Society Premarital Agreement: Love, Money, and Marriage

wedding-322034_640In Thailand, it is not unusual to see established men marrying younger Thai women. There are also instances where couples are in their second relationship and both bring their own assets into a marriage. In these circumstances, it may be prudent to sign a premarital agreement.

A premarital agreement outlines the division of the property, debts, and spousal maintenance in the event of a divorce. While setting the division of financial assets is not romantic, it does help to preserve the couple’s expectations during the marriage.

In Thailand, premarital agreements are allowed but they have to be signed and concluded prior to the marriage. They cannot be contrary to the “public order or good morals”. While premarital agreements are generally concerned with the couple’s property, there have been instances where conditions of bad moral behavior such as adultery can result in a property dilution for the offending party.


When Dogs Attack: Torts, Crimes, and Property


There is a growing number of dog owners in Thailand. These pet owners treat their animals like their children, prized possessions, and members of the family. With the growing number of pet owners, there have been an increased number of disputes involving domesticated animals. Our office has recently been contacted in regards to two dog biting cases.

A Kiwi Bite

The first case was a man from New Zealand who was in the process of applying for a retirement visa in Thailand. He was in Pattaya looking for a condominium to rent. In one of the condos that he was looking to rent, the owner had a medium brown sized dog. While in the condominium, the dog became agitated and growled at the man.

The man deciding that it was better to leave. He turned around and began to leave the condo. The dog came after him. The man ran. The dog chased him and bit him in the back of the leg. The dog’s teeth punctured the man’s skin and began to bleed.

The man was taken to the hospital where he was given stitches and shots. According to the owner, this was the first time that the dog has ever attacked or bitten anyone. The owner believed that the dog was agitated because there was a stranger in the home.

What can the man from New Zealand do?

Section 433 of the Thai Civil and Commercial Code states that the owner of an animal is bound to compensate an injured party for any damages caused by the animal. Thailand is a civil law country based on the German Civil and Commercial Code so the New Zealand man can only file a claim for any actual compensation arising from the incident such as medical expenses and loss of property.

In this case, the property owner’s dog chased the man and bit him in the leg. Unless the dog owner could prove that the man intentionally provoked the dog, the pet owner will be strictly liable to compensate the man for his medical bills and any other costs directly attributable to the attack.

Furthermore, the New Zealand man can possibly file criminal charges against the dog owner under section 300 of the Penal Code for being negligent in not exercising proper restraint on their dog. The dog was agitated by having a stranger in the condominium. If it could be proved that the dog owner knew about this and did not restrain the animal, she could be found guilty of causing grievous bodily harm on another. The potential penalty for a guilty verdict is imprisonment for up to three years and a 6000 baht fine.

Death of a Toy Dog

The second case involved a Thai national with an expensive small purebred toy dog. She lives in a wealthy gated community with large homes and many foreigners. As part of her daily exercise routine, she likes to take her dog for a morning walk around the neighborhood.

One of her neighbors was a British man who had taken in two large street dogs as pets. The British man use the dogs to guard his home and the dogs stayed outside the home but within his gated property. Whenever anyone walked by the gated home, the dogs would bark and make a lot of commotion. The guard dogs would regularly escape and terrorize the neighborhood whenever the British man’s gate was left open.

The Thai national would sometimes see the British man’s dogs run free in the neighborhood. His dogs never attacked the woman but would bark and attempt to bite her small dog. The woman was always able to grab her little dog to protect him until last month. The British man’s servant left the gate open and the dogs escaped. They entered the Thai woman’s property and attacked her little dog. Before the woman was able to rescue her little dog, her dog was grabbed and shaken profusely for several minutes. Her dog died at the vet hospital from injuries as a result of the attack about 14 hours later.

What can the Thai woman do?

Under section 433 of the Thai Civil and Commercial Code, the British man is responsible to compensate the injured party for damage caused by his dogs. The damage in the above case is to the Thai woman’s property which is her toy dog. The Thai woman can file a lawsuit against the British man for the dog’s medical expenses and the replacement cost of a new purebred toy dog. Even though the attack was vicious, Thailand places restrictions on monetary claims for emotional distress. So she would probably not be able to receive any compensation for emotional distress.

If the British man was negligent in allowing his dogs escape and the dogs were known to have been of a vicious nature, the British man can be sued for criminal actions. He can be found guilty under section 358 of the Thai Penal Code, for damaging, destroying, or for causing destruction of the property of another as a result of negligent actions. In addition, under Section 377 of the Thai Penal Code states that the owner is responsible for a vicious animal if they are allowed to wander freely and is likely to cause injury to persons or property. Both crimes provide for imprisonment and/or a fine.

When someone takes possession of an animal, that person can become legally liable for torts caused by the animal. And while most pet owners treat their cats or dogs like their children, in the eyes of the law, they are only property. For most pet owners, the replacement value is not enough to relieve the suffering of caused by the loss of their pet.

How to Evict a Tenant in Thailand

foreclosure-48120_640Evicting a Tenant in Thailand is not a simple matter. Leases are generally treated as a contract. There are procedures that need to be followed to terminate the contract.



Thai Businesses with Foreign Owners


thailand-345514_640This past week I met with a representative from a European company that sold vitamin products. The company has established branch offices in multiple countries. They were interested in opening a small office in Thailand. Thailand is an attractive place for retail stores. There is a large upper middle income population with disposable income and an established consumer culture.

However, establishing a business in Thailand is not a simple matter. There are many restrictions on foreigners operating in Thailand. The Foreign Business Act restricts foreign owned companies from most professional occupations and business services. In addition, foreign owned businesses are generally not allowed to own land.

For non-Thais who want to do business in Thailand, there are a few options. Some foreign companies form a partnership with Thai nationals to form a Thai company. A Thai company requires that a Thai national or company owns 51% of the shares of the company. This means that foreigners can only own up to 49% of a Thai company.

In Thailand, the most popular form of company is a private limited company. In a private limited company, shareholders have limited liability while the directors have unlimited liability. Thai private limited companies require a minimum of three promoters and minimum of 1 million baht of capitalization.

The benefits of a Thai company are that they are not restricted from engaging in most types of business services. In addition, Thai companies can own property. However, foreign owners need to be careful who they choose to be their Thai partner since they can lose management control of the company because they are not majority shareholders of the Thai company.

The 49% foreign ownership limit for certain business activities can be exceeded or exempted if a Foreign Business License is granted. A Foreign Business License is granted to foreign owned businesses that are unique and do not compete with Thai businesses. Applications for a foreign business license are evaluated on whether the business will violate Thai law or morals and whether the business will be beneficial to the economy of Thailand. The process of obtaining a foreign business license is time consuming and complicated but it allows foreign businesses to operate in Thailand.

The negatives of a obtaining a foreign business license is that there is an increased capitalization requirement of 3 million baht per service and the capitalization must be fully paid up prior to operating. In addition, foreign owned businesses are not allowed to own property and there are additional regulatory requirements when obtaining licenses, opening bank accounts, and doing business in Thailand.

Many foreign own businesses try to bypass Thai regulations by having Thai nominee shareholders. Thai nominee shareholders are unrelated third parties who are registered as shareholders but do not have any real financial interest in the company. They are used to secure the privacy of the actual owners of the company.

The use of nominee shareholders is generally legal unless nominee shareholders are used to by foreign nationals to circumvent the Foreign Business Act and the Land Act. Businesses that use nominee shareholders come under additional scrutiny in the registration of their company and licensure. Foreign businesses who use Thai nominee shareholders to bypass the company?s true owners may have difficulty protecting their interests if there is litigation.

There are legal work arounds which protect the interests of foreign owners without the need of Thai nominee shareholders. While every type of business has different requirements, some of the legal ways of maintaining management control of a company are through the use of preference and ordinary shares, controlling the number and powers of the board of directors, and through internal company regulation. These methods are not a guarantee that foreign owners will not lose management control but it helps to reduce the chances of that occurring. The most important reason for properly registering a company is to protect the company?s legal rights and to do business with confidence without fear of being exposed.

Mr. Robert R. Virasin is a licensed U.S. Attorney and managing director of Virasin & Partners. Ms. Parthomrat Punyacharoenwat is a licensed Thai Attorney whose primary focus is corporate and tax law. They can be reached at info@virasin.com or at www.virasin.com.



The Refugee Crisis in Germany: Views from the Inside

The images of Syrians fleeing their war torn country and walking into the open arms of the German people have touched the hearts of many people all over the world. A country’s whose media image as a cold calculating efficient people has been change to something that I have known as not complete. The German people are a calculating and efficient people but they are also a magnanimous and generous people who have learned from their past.