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Thailand, US Immigration and Divorce
By Chaninat & Leeds
When it comes to Thai citizens immigrating to the US on the basis of marriage, there are two main visa options: the K1 and K3. The positives for the K1 Fiancée Visa Thailand are that it is quicker to obtain, applicants only have to deal with US immigration and it gives a longer period for adjustment of status than the K3 visa. The K3 Marriage visa Thailand tends to be popular as it’s cheaper, because it depends on a marriage in Thailand, not America, and the K3 visa from Thailand allows for easier travel.
Ultimately, both the K1 and K3 visas allow Thais or any other foreigners to remain in the US. If things go wrong in a marriage and divorce is necessary, it is possible for foreign parties to remain in the US, although immigration officials will need to be convinced they are not trying to fraudulently obtain a green card through marriage.
A central pillar of US immigration and divorce law says that anyone who immigrates to the US on the basis of marriage will be given conditional permanent residence if the marriage is less than two years old. This conditional residence status then lasts for a further two years.
Conditional US Residency and the Green Card
Thai spouses who have been granted residency based on their marriage to a US citizen are generally given this ‘conditional’ permanent residence if the marriage happened within the previous two years. The key element is that the permission is conditional. If immigration officials feel that the marriage is bogus and took place with the intention of gaining a green card, the residence status may be withdrawn. The consent can be removed any time within two years of the conditional permanent residence being granted. The same also applies to the child of any foreign partner, who would also be given conditional residence based on their parent’s marriage. To remove the conditional status a person must apply before the second anniversary of their arrival as an immigrant.
Every year, 400,000 Americans marry foreign-born nationals and apply for their spouses to be given permanent residence, and a large number of those are Thai spouses. It can be a complicated area as the two-year rule means it is seen by some as a fast-track way to obtain a Green Card. In cases where a marriage breaks down within two years, the foreign partner can be eligible for deportation.
Divorce between a US citizen and a Thai national would normally end the conditional status of the Thai spouse. However in such cases it is essential to consult with an immigration lawyer as it is possible for the termination to be waived in certain circumstances. For instance, if the Thai partner could prove the marriage was genuine and not done purely to obtain a K3 visa and then green card status through marriage, they may be allowed to remain in the US. If a couple has property that is jointly owned or if they have had a child together, this would generally considered proof of a legitimate marriage.
If a divorce occurs within two years of the conditional permanent residence status, the Thai partner may lose their permission to remain in the US but they may still be entitled to financial support from their spouse while they remain in the US. To change this, the spouse needs to withdraw their offer of sponsorship if a divorce is likely.
A lot depends on whether the Thai partner has had conditional status in the US for more than two years or not. If they have, they can go ahead and petition for permission to remain. If they have not, their partner could gain a divorce and the conditional status would end. If the marriage is still not two years old, the Thai partner could still ask for permission to stay if they can show they were a battered spouse, the marriage was in good faith or that they would face extreme hardship if deported.
Once permanent residence status is given, it is possible to gain citizenship within three years (usually the waiting period is five years). Should the marriage end in divorce during this period, the Thai spouse would have to wait five years.
Marriage Fraud and Spousal Abuse
There have been instances where the US citizen has felt he or she has been tricked by their Thai fiancée/fiancé into a relationship with the intention of obtaining a K3 visa in Thailand, and then of obtaining a Green Card through marriage. If a US citizen claims a marriage was fraudulent, they may themselves face criminal liability if they knew their Thai fiancée was marrying to secure a Green Card. In reality, such prosecutions are rare and simply by seeking to annul the marriage or claiming fraud is often enough to deter the alien partner from pursuing substantial alimony.
In cases where the Thai partner has been abused during a marriage, it may be possible for the victim to remain in the US. A Thai spouse can petition US immigration to gain lawful permanent residency under the Violence Against Women (VAW) Act of 1994 and the Battered Immigrant Women Protection Act (2000). Despite the names of the Acts, men may also petition.
For a Thai woman to be able to self-petition she must show she is married to a US citizen, has been abused in the US, and must themselves be a person of good moral character.
The US has several checks and balances to ensure only those who are in legitimate marriages enter its borders. US citizens wanting to marry in Thailand and obtain a US K3 visa should first consult a US immigration lawyer Thailand to discuss the K3 visa process and also to understand the implications of bringing a Thai citizen to the USA.
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