Corporate, Immigration and Visas in Thailand

What are the principal forms of business organisation in Thailand?

The principal forms of business organisations available to both Thai and foreign entities (natural and juristic (or legal) entities) are as follows. In the case of foreign entities, the provisions of the Foreign Business Act B.E. 2542 (1999) (FBA) will apply and the practical consequences of the FBA will be explored more fully in due course.

• Sole proprietorship
  
• Unregistered ordinary partnership
  
• Registered ordinary partnership
  
• Limited partnership
• Representative office
  
• Regional office
  
• Branch office of foreign company
  
• Private limited company
  
• Public limited company
  
• Joint venture

The rules relating to the formation of a private limited company are contained in the Civil and Commercial Code (CCC), which provides that such companies maintain a minimum of 3 shareholders at all times.

The first step in the formation is the reservation of the name of the company with the Department of Business Development (DBD). If the desired name is available, a memorandum of association is filed containing the following information:

• The name and the location of the company
  
• The objectives of the company
  The amount of capital divided into shares and the par value of the shares
  
• The names, addresses and occupations of the promoters of the company (who will subsequently become the shareholders) and the number of shares subscribed by each promoter

Following approval of the memorandum of association and on the basis all shares have been fully subscribed, the promotors of the company are required to call a statutory meeting of the share subscribers to confirm the following:

• The company’s articles of association (also known as by-laws)
  
• The formal conclusion of any contracts entered into or expenses incurred by the promoters in the formation of the company
• Any renumeration due to the promoters
• The number of any preferred shares to be issued and the extent of the preferential rights
• The appointment of the director(s) and auditor(s) and the establishment of the powers of the director(s)

Following the statutory meeting, the promoters hand over the business to the director(s) who are obliged to have the promoters (or subscribers) pay at least 25% of the value of the shares. The company is then registered and incorporated as a legal (or juristic) entity.

Whilst it is common for joint ventures to be incorporated into a limited company, owned by two or more companies, it is not legally required and such companies are treated like any other limited company.

An unincorporated joint venture (formed by contract) has no formal legal personality in Thai law and, although it may engage in business, it cannot be registered. It will however be treated by the Revenue Department as a company for tax purposes and be required to apply for a tax identification card and subject to VAT registration if required under relevant provisions of the Revenue Code.

The most significant practical considerations for foreign investors conducting business in Thailand are the provisions of the Foreign Business Act B.E. 2542 (1999) (FBA).

The FBA prohibits foreign entities from engaging in a significant range of business activities in Thailand. The list of activities is exhaustive and, in practical terms, means that foreign entities are excluded from conducting business in Thailand in any meaningful way unless they obtain a foreign business licence. Obtaining a foreign business licence in practice is extremely difficult and time-consuming, assuming the applicant even qualifies.

An entity is a foreign entity if any of the following apply:

• The entity is a non-Thai natural person
  
• The entity is a legal (or juristic) person not incorporated in Thailand
  
• The entity is a legal (or juristic) person incorporated in Thailand with 50% or more of its shares held by the above persons or 50% or more of its total registered capital invested by the above persons
  
• The entity is a limited partnership or a registered ordinary partnership in which the managing partner or the manager is not a Thai natural person

There are several exceptions to the FBA, but they may be impractical or otherwise not relevant to small or medium enterprises. They are as follows:

• Board of Investment promotion under provisions of the
• Investment Promotion Act B.E. 2520 (1977)
  Incentives and privileges granted under provisions of the Industrial Estate Authority of Thailand Act B.E. 2522 (1979)
  
• Treaties and free trade agreements
  

If the majority of shares in a company, i.e., 51% or more, are held by a Thai entity (a natural Thai person or a Thai juristic person), the company is considered, as a matter of Thai law, a Thai entity and not subject to the provisions of the FBA restricting business activities. Foreign investors can therefore conduct business with a minority shareholding in a limited company. If the company wishes to own land in Thailand, a majority of the shareholders must also be Thai entities, but the company is likely to be subject to additional scrutiny by the land office in the event it has any foreign shareholding.

It should be noted that any Thai shareholders in a company cannot be mere nominees, i.e., simply holding the shares on behalf of a foreign entity with only nominal ownership. This would be considered an attempt to circumvent the provisions of the FBA (or any other relevant legal provisions regarding foreign activity) and is contrary to Thai law.

Conducting business in Thailand can be difficult and challenging for foreign investors and the corporate space can be complex, particularly with regard to provisions of the FBA and its exceptions.

We have many years of experience navigating this space and offering clear commercial advice to our clients as well as secure and practical solutions that fully comply with Thai law.Please contact the LAFS corporate practice on +66 2104 9100 or info@lafs-legal.com if you need assistance with any of the following:

• The advantages and disadvantages of any particular business structure
  
• The formation, structure and establishment of private limited companies
  
• The maintenance of business structures, including ongoing filing requirements, tax and accounting issues
  
• Exceptions to the FBA, including Board of Investment (BOI) promotion, treaties and free trade agreements
  
• Advice on mergers with or acquisitions of Thai companies
  
• The draft of shareholders’ agreements
  
• The draft of joint venture agreements and the establishment of incorporated joint ventures

Immigration and visa requirements are governed by provisions of the Immigration Act B.E. 2522 (1979), as amended and administered by the Immigration Bureau, a division of the Royal Thai Police.

The rules generally require any foreign national entering Thailand (unless they are exempt from the rules) to obtain the correct visa from a Thai embassy or consulate prior to arrival.

The following persons are exempt from visa requirements for limited periods:

• Those in transit through Thailand and tourists from certain countries permitted to obtain a visa on arrival at designated entry points. A visa on arrival permits a stay for 15 days
• Those in transit through Thailand and tourists from certain countries permitted to enter and stay in Thailand for 30 days without a visa. A stamp is obtained from immigration upon entry
• Nationals of Argentina, Brazil, Chile, the Republic of Korea and Peru are permitted to stay 90 days, with a stamp obtained from immigration upon entry

With respect to the first two categories of exemption, the list of currently included countries can be obtained from relevant Thai embassies or consulates. In addition, those who are exempt and arrive by land crossing are only permitted to stay 15 days with exceptions for Malaysian nationals arriving from Malaysia and nationals from G7 countries, who are permitted to stay for up to 30 days.

If a longer stay is required, a visa must be obtained before entry from the relevant embassy or consulate. Equally, foreign nationals from countries without exemption agreements with Thailand are required to obtain a visa before entry.

What are the most common types of visas issued for entry to Thailand?

The Immigration Act prescribes eight main visa categories with permitted length of stay varying with the type of visa. The most common types of visas are as follows:

• Transit Visa
  
• Tourist Visa
  
• Non-Immigrant B Visa – for business purposes
  
• Non-Immigrant ED Visa – for educational purposes
  
• Non-Immigrant O Visa – for ‘other’ purposes as prescribed in the ministerial regulations
  
• Non-Immigrant O-A Visa – long stay category visa issued to applicants 50 years of age and over for the purpose of retirement. Valid for one year, with employment strictly forbidden
  
• Non-Immigrant O-X Visa - long stay category visa issued to applicants 50 years of age and over for the purpose of retirement. Valid for 5 years and extendable in Thailand for a further 5 years, subject to qualification verification by the Immigration Bureau every year. The visa is currently available to foreign nationals from the following countries: Australia, Canada, Denmark, Finland, France, Germany, Italy, Japan, Netherlands, Norway, Sweden, Switzerland, the United Kingdom and the United States of America.

Permitted lengths of stay for each type of visa are as follows:

• Transit Visas – Not exceeding 30 days
• Tourist Visas – Not exceeding 30 or 60 days, depending upon the applicant’s country of origin
• Non-Immigrant Visas – Not exceeding 90 days (does not apply to long stay category visas)

Extensions of stay are common and are applied for at the Immigration Bureau.

Tourist Visas may be extended for a maximum of 30 days, depending upon on the applicant’s country of origin. The process is relatively straightforward and requires only the applicant’s passport, a passport sized photo and a general statement providing the reason for requesting an extension.

Non-Immigrant B Visas are generally extended for a year from the date of arrival (unless subject to exemptions under investment law which permit renewals for up to two years) and can be further extended yearly on the basis the applicant still qualifies. A significant number of corporate supporting documents are required with the application.

Non-Immigrant O Visas can be extended for a year from the date of arrival, and extensions are often based on marriage to a Thai citizen or retirement, subject to certain conditions and supporting documentation. Extensions can be further extended yearly on the basis the applicant still qualifies.

All extensions of stay, irrespective of length, are subject to a government fee of 1,900 THB.

Visa status (including entries under visa exemption rules) can be changed following entry to Thailand providing the applicant meets the relevant requirements.

Applications must be made at least 21 days in advance of the expiry of the current period of stay. Supporting documentation will be required and will vary according to the purpose of the application.

A re-entry permit should be applied for prior to the departure of any holder of a Thai visa to ensure the visa is not cancelled. The permit allows the holder to leave and re-enter Thailand while preserving any time remaining on a period of stay.

Re-entry permits can be obtained from the Immigration Bureau or alternatively at most major international airports and other designated immigration checkpoints in Thailand, though planning an application in advance is strongly recommended.

The fee for a single re-entry permit is 1,000 THB, but a multiple re-entry permit is available for a fee of 3,800 THB. Obviously, if frequent travel outside Thailand is likely, a multiple re-entry permit is recommended.

In the event of any departure from Thailand without a re-entry permit, a new visa must be applied for at the relevant embassy or consulate before re-entry.

Changes in address are required to be reported to the local police within 24 hours and anyone who has a foreign national staying at their address in Thailand is also required to report their presence within that time period.

In addition, foreign nationals who remain in Thailand for a period of 90 consecutive days are required to report their address to the Immigration Bureau. Any failure to comply with the requirement will result in a fine of 2,000 THB (or more if arrested). Leaving and re-entering Thailand during the 90-day period counts as a report and will reset the reporting clock.

A period of permitted stay is usually clearly marked in a passport whether following admission to Thailand by immigration authorities or the granting of an extension of stay from the Immigration Bureau. It is the responsibility of the holder to be fully cognisant of the expiration date of that period.

Compliance with immigration law and visa rules is strictly enforced in Thailand and the consequences of overstaying can be serious. Foreign nationals who overstay are subject to fines of 500 THB per day of overstay up to a maximum of 20,000 THB. Significant periods of overstay will additionally result in a ban from re-entering Thailand. Fines can be paid at the Immigration Bureau or the airport on departure, but it should be noted that, outside these limited circumstances, and in the event a foreign national is arrested for being in overstay, or arrested for some other reason and found to be in overstay, that person will likely be detained in the Immigration Detention Centre (IDC) before being fined and deported (at their own expense). An inability to pay fines or the costs of deportation will result in detention at the IDC until the matter is resolved.

The process of applying for and maintaining appropriate visas in Thailand can be difficult and confusing, particularly for long-term stays. Procedures for applications, processing times and requirements for supporting documentation can vary significantly between different embassies and consulates, as well as at immigration offices within Thailand.

Our lawyers have a great deal of practical experience in advising clients in relation to successful applications at foreign embassies and consulates, as well as many years of on the ground experience in dealing with the immigration authorities in Thailand, particularly in Bangkok.

Please contact the LAFS immigration practice at info@lafs-legal.com if you need assistance with, or advice on, any of the following:

• The most appropriate visa for your circumstances
  
  
• Applications for Non-Immigrant B Visas
  
  
• Applications for Non-Immigrant O Visas
  
  
• Applications for Non-Immigrant O-A Visas
  
  
• Applications for Non-Immigrant O-X Visas
  
  
• Applications for extensions of stay with underlying Non-Immigrant B or O visas
  
  
• Applications for a change of visa status
  
  
• Applications for investment visas or the Thailand Elite Program
  
  
• 90-day reporting
  
  
• Applications for re-entry permits
  
  
• Arrest and detention in relation to overstay issues

For information in relation to work permits, please see our section on employment law in Thailand.