Why Aren’t U.S. Immigrant Visas Issued in Beijing?

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on August 28, 2008
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Currently, only nonimmigrant visas (NIVs), which are temporary visas, are issued by the U.S. Embassy in Beijing. Guangzhou is the only U.S. consular post in China that issues immigrant visas (IVs), which allow the holder to get a “green card” and live permanently in the U.S.

The decision to stop issuing immigrant visas in Beijing was explained during a 1989 interview by Elizabeth Raspolic, Consul General at the U.S. Embassy in Beijing from 1986 to 1988:

In terms of visas, when I first got [to Beijing], we issued both immigrant and non-immigrant visas, but we were in the process of trying to consolidate all immigrant visa issuing in Guangzhou. We felt it was unnecessary to have a duplicate operation in Beijing, in terms of IVs. We didn’t have sufficient American personnel, and our Chinese staff was not experienced enough to be able to deal with the variety of cases that we were getting. Whereas Guangzhou had so much experience in this and these cases were just routine in Guangzhou, we figured out that obviously it was going to be physically inconvenient for some of our northern applicants, but since over 85% of the applicants came from the south and of the Beijing applicants, Shanghai used to be in their consular district for IV purposes, almost half the Beijing applicants were from Shanghai and it was equidistant for them to go to Guangzhou as to Beijing. So we felt ultimately we were inconveniencing maybe 200 to 400 people a year, but we were benefiting almost 15,000 to 16,000. So that’s what we did. We really received very little flak for it. I think it was much more efficient.

It also gave us time in Beijing to concentrate on our biggest operation, and that was non-immigrant visas. Last year I think we issued in between 35 and 40,000 non-immigrant visas, and those were issuances. We must have refused thousands more. So we were very, very busy in our NIV section.

Before, we had not been utilizing our staff, I think, very efficiently. Our experienced officer was issuing IVs, because it was more complicated, even though it affected a very minimal number of people, whereas NIVs, which were not as complicated but had a much broader impact, were being supervised and issued by junior officers, with very little supervision. I was not at all at ease with that. I think we have a much more efficient, much more reliable operation now.

Source: Frontline Diplomacy: The Foreign Affairs Oral History Collection of the Association for Diplomatic Studies and Training.

Gazing into the Crystal Ball: Possible Future Changes in U.S. Visa Processing

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on August 28, 2008
in Visa Appointment Wait Times
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If you had just one chance to gaze into a crystal ball, you probably wouldn’t use the opportunity to learn about the future of U.S. visa processing in China. So you’ll have to settle with glimmers of the future from a recently published U.S. Government Accountability Office (GAO) report, Border Security: State Department Is Taking Steps to Meet Projected Surge in Demand for Visas and Passports in Mexico (July 2008).

As background, U.S. consular facilities in China are facing pressure to adjudicate a rapidly-increasing number of visa applications without expending significant additional resources. On top of that, believing that wait times for nonimmigrant visa (NIV) interviews were excessive, in February 2007, the State Department announced a worldwide goal of interviewing NIV applicants within 30 days.

Recent State Department initiatives in Mexico to meet this challenge may offer hints about changes that are coming in China:

  • Adding temporary interview windows: Consular officers in Mexico are expected to conduct 20 NIV interviews per hour. Assuming windows are open 200 days a year, 20 interviews per hour for 8 hours wouild result in 32,000 interviews per window, per year. To meet surging visa demand, consular posts are constructing additional temporary windows.
  • Hiring temporary adjudicating officers with renewable 1-year contracts: These officers will receive the same 6-week Basic Consular Course at the Foreign Service Institute in Arlington, Virginia, as permanent Foreign Service officers. Officials anticipate the same level of productivity and supervision requirements as they would expect from new career Foreign Service officers.
  • Outsourcing: A pilot program in Mexico outsources to private contractors a portion of the NIV application process. This includes electronically capturing applicants’ biometric data (photo and fingerprints) as well as scanning visa application forms at off-site facilities. This is part of an effort by the State Department to establish a new service delivery model for processing NIVs in response to long-term growth in demand worldwide. State envisions expanding this model to other high-demand posts worldwide to help expand the capacity of consular operations without incurring the costs of building additional facilities.

Any guesses as to which of these strategies will be implemented in China?

Two Bites at the Apple? Filing Multiple Visa Petitions

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on August 21, 2008
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Recently, USCIS Service Center Operations offered an opinion on whether it’s possible to file a second visa petition if the first one was denied and is currently on appeal or a motion to reopen is pending:

Yes, a second petition can be filed. However, under longstanding Service policy, the second petition will be held in abeyance pending the outcome of appeal. If the petitioner would like quicker resolution of the second petition, the appeal should be withdrawn. Please see the 2-8-89 Richard Norton memo, entitled Adjudication of Petitions and Applications which are in Litigation or Pending Appeal which discusses this policy.

Source: AILA-USCIS SCOPS Q & A (July 30, 2008).

USCIS Needn’t Follow Its Own Internal Guidelines on L-1 Specialized Knowledge Visas

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on August 19, 2008
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Clients often repeat to our firm advice they have been given by employees of U.S. Citizenship and Immigration Services (USCIS). That advice may or may not be accurate, but one thing is clear: USCIS is not legally bound by that advice.

In a recent decision, the USCIS Administrative Appeals Office (AAO) restated its long-held position that USCIS isn’t even bound by its own written internal guidelines. [1]

The case involved a company seeking an L-1 specialized knowledge visa for an employee. The AAO rejected the company’s argument that the employee had specialized knowledge, where the employee would serve as an SAP enterprise resource planning consultant whose position required two years of experience with at least two full-cycle SAP projects.

As background, L-1 visas are available for managers, executives, and employees serving in a “specialized knowledge” capacity. Regulations define specialized knowledge as “knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.” [2]

The issue presented in the case was whether only a “key” employee qualifies for this type of visa. The company argued that USCIS’ internal written guidelines don’t include such a requirement. [3] The Administrative Appeals Office held, however, that USCIS is not bound by its guidelines:

USCIS memoranda articulate internal guidelines for agency personnel; they do not establish judicially enforceable standards. Agency interpretations that are not arrived at through precedent decision or notice-and-comment rulemaking–such as those in opinion letters, policy statements, agency manuals, and enforcement guidelines–lack the force of law and do not warrant … deference. An agency’s internal guidelines “neither confer upon [plaintiffs] substantive rights nor provide procedures upon which [they] may rely.” Agency policy memorandum and unpublished decisions do not confer substantive legal benefits upon aliens or bind USCIS.

In contrast, USCIS would be bound by a statute, federal regulation, or precedent decisions of the agency. One such precedent decision quoted a congressional report in holding that visas are available only to “key” staff:

it can not be concluded that all employees with specialized knowledge or performing highly technical duties are eligible for classification as intracompany transferees. The House Report indicates the employee must be a “key” person…. [4]

The AAO emphasized that Congress limited these visas to “key” staff because Congress wanted the visa classification to be “narrowly drawn” and “carefully regulated and monitored.”

The AAO decision was likely colored by the fact that the employer appears to have used L-1 visas for “wholesale transfer of hundreds” of employees to the U.S., not all of whom could be “key” employees. This case also reflects USCIS’ trend of interpreting L-1 visa requirements narrowly to avoid perceived abuse of the visa classification by employers who previously would have filed for H-1B temporary worker visas but cannot do so because the H-1B numerical cap has been reached.

More generally, this case also illustrates the importance of clients not relying exclusively on USCIS advice, even in written form, because USCIS isn’t bound by its advice.

—-

[1] Matter of [name not provided], WAC-07-277-53214 (AAU July 22, 2008).

[2] 8 C.F.R. § 214.2(l)(1)(ii)(D); see INA § 101(a)(15)(L).

[3] Memo by James A. Puleo, Acting INS Exec. Assoc. Comm’r, “Interpretation of Special Knowledge” (Mar. 9, 1994).

[4] Matter of Colley, 18 I&N Dec. at 119-20.

EB-5 News: Philadelphia Convention Center Investment Plan Falls Through

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on August 3, 2008
in EB-5 Investor Visas
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According to the below news story, CanAm has signed up 150 Chinese seeking EB-5 visas to invest in a company that would loan money to the Philadelphia Convention Center. The investors already deposited their money–$500,000 each–in escrow, apparently as long as a year ago. The only problem is that the Convention Center doesn’t want to borrow the investors’ money. Now, the investors need to start over and identify new investment opportunities.

Clients often ask our firm what are the risks associated with a particular EB-5 investment. Here, as CanAm admits, there was a risk in raising the money before the Convention Center approved the deal. I wonder how many of the investors understood that risk.

————-

Philadelphia Inquirer
July 22, 2008

Chinese millionaires turned away: The Convention Center board says the money presents too many issues.
By Jennifer Lin and Marcia Gelbart

Close to 150 Chinese millionaires want to help Philadelphia expand its Convention Center, but the center’s board wants no part of their cash.

That has left the potential investors more than a little frustrated.

For the Chinese, the money represents a legal way to expedite access to U.S. “green cards” for permanent residency. Adhering to the requirements of a nearly 20-year-old federal immigration program, they have each plunked down $500,000 in an escrow account at a U.S. bank.

For the state, that money - $73.5 million - could be a cheap way for the Convention Center to borrow funds to cover some of the expansion’s construction costs, which are projected to surge over the $700 million budgeted. (Under the loan program, the money would be repaid, over five years, at a remarkably low interest rate of 2.5 percent.)

But for now the Convention Center, as cash-starved as it is, has no interest in the foreign funds.

“We considered it. We looked at it. But it was kind of a bridge too far . . . too complex for us to consider,” Buck Riley, chairman of the 15-member Convention Center Authority, said last week. “Right now, it is a dead issue.”

Another board member said the board was hesitant to get involved with what seemed like “immigration policy.”

Known in Philadelphia as the “Welcome Fund,” the little-known loan program has been administered jointly since 2003 by the Philadelphia Industrial Development Corp. (PIDC), a city-related nonprofit economic-development agency, and CanAm Enterprises, a New York firm that has structured immigrant investor deals since 1987, mostly in Canada.

PIDC identifies potential borrowers; CanAm seeks out investors. Approved investors receive conditional green cards.

Within two years, they become eligible for permanent green cards, if, among other things, their money spurred jobs. Under the Philadelphia program, 10 new jobs must be created for every $500,000 invested.

To date, the foreign funds have helped pay for 21 projects in Philadelphia totaling $148 million. Among those receiving investment dollars are Comcast Corp. ($26 million), Temple University Health System ($13 million), August Aerospace Corp. ($15 million), the law firm of Duane Morris ($6 million), and Stephen Starr’s Continental Mid-Town restaurant ($3 million).

“We owe $33 billion of debt on our balance sheet, so if we have an opportunity to borrow some money at 1 or 2 percent, yes, we’re going to do it,” said Comcast executive David L. Cohen.

With $73.5 million sitting in a bank account, the Convention Center project would have been the largest, by far.

“Investors like the Convention Center project. I feel very sad about this. Everybody is getting angry,” Dennis Chou said in an interview last week in Shanghai. Based in an office in a high-rise on Beijing Road, Chou works for CanAm, marketing the fund to would-be investors in the Asia-Pacific region.

Chou said he was told last February to begin marketing the Convention Center to investors, and he did - holding informational sessions about the center and Philadelphia throughout China.

Quickly, 147 investors were lined up, but with no movement since then, he said the fund’s credibility was under fire. “When people come in, I have to say, sorry, sorry. I don’t know how to explain to our customers.”

Indeed, CanAm’s president, Tom Rosenfeld, said that if the Convention Center deal collapsed, “it would hurt the whole program.”

In an interview from his New York office, Rosenfeld acknowledged there was a risk in raising the money before the Convention Center approved the deal.

But he said he did so after discussions with officials from the Rendell administration and PIDC. “The state is financing the construction. Clearly they have a say in it.”

Although the authority was not involved in those early conversations, Rosenfeld said, “the assumption was once they understood the program and the benefits, and that it was not harmful, they would vote for this thing.”

Michael Masch, Pennsylvania budget secretary until a few weeks ago, did not return calls last week.

But he voiced support for the loan program as recently as June 3 in a letter to the authority. By his estimates, he wrote, the low-cost loan could save the authority $6 million to $8 million on interest payments.

Peter Longstreth, president of PIDC, said, “Some of the investors may have gotten a little bit ahead of the deal. . . . The fact there are funds in an escrow for a period of time is quite typical.”

The Convention Center has taken no formal vote on the program and has more or less shelved it for the foreseeable future.

“It did not go over well. It seemed something outside our realm,” said board member David Woods, chief of staff to Senate Majority Leader Domenic Pileggi (R., Delaware).

“People were concerned they were dealing with immigration policy while they should really be focused on financing for the Convention Center.”

Still, Rosenfeld maintains hope that the investors’ efforts will not be futile, particularly since final construction costs remain unknown. “I’m not taking this to be a dead issue,” he said. “This is a great program that doesn’t cost the city or state any money, so shouldn’t Philadelphia benefit from it in a way that can complete construction of the Convention
Center?”

Security Advisory Opinions Taking Longer

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on July 27, 2008
in Visas Mantis Security Advisory Opinion (SAO)
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According to the U.S. Embassy in Beijing, “[t]he average processing time for [security advisory opinion] clearances has increased to 6-7 weeks.” The increased processing time will apparently affect U.S. Consulates worldwide because it is due to a shortage of personnel in Washington, DC.

As background, under U.S. immigration law, a consular officer should refuse to issue a visa to an applicant whom the officer has reason to believe may violate U.S. laws prohibiting export of sensitive goods, technology, or information. The “Visas Mantis” security advisory opinion (SAO) is a check for potential export violators.

The State Department in conjunction with other U.S. government agencies maintains a “Technology Alert List” (TAL). This list covers both military technologies and technologies with dual civilian and military uses. If a consular officer believes that once in the U.S. you may engage in activities related to a field covered by the TAL, then the consular officer must carry out an SAO unless you “clearly” will not violate export laws. The officer will consider your education, training, work experience, and stated purpose for travel.

Science and technology professionals, if possible, should apply for U.S. visas at least two months before they plan to travel. For more about SAOs, see our article: “The ‘Visas Mantis’ Security Advisory Opinio (SAO): An Overview for Science and Technology Professionals.”

Do Chinese Want to Live the Australian Dream?

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on July 23, 2008
in America's Image Abroad
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Australia is the best destination for emigrants, according to a recent poll by the Pew Research Center of 3,200 adults in China.

The question posed was, “Suppose a young person who wanted to leave this country asked you to recommend where to go to lead a good life–what country would you recommend”? While there is no consensus, the most frequently cited countries are Australia (22%), Canada (17%), the United States (15%), France (8%), and Britain (8%). Few recommended Asian neighbors, such as Japan (3%), South Korea (1%), or Singapore (1%).

The limited interest in the U.S. as a destination for emigration is, I would guess, linked to current U.S. economic woes and America’s plummeting international popularity due to the Iraq war.

On the economy, strikingly large majorities of Chinese respondents are content with their country’s direction (86%) and economy (82%). This is the greatest level of satisfaction among the 24 nations included in the Pew survey. Despite satisfaction with national issues, Chinese respondents showed merely modest satisfaction with their personal job (64%) and household income (58%).

Chinese views of America’s intentions are mixed. The survey asked, “Overall, do you think of the U.S. as more of a partner of China, more of an enemy of China, or neither?” 13% said more of a partner, 34% said more of an enemy, and 41% said neither.

Update: Consular Recommendations to Revoke Visa Petitions

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on July 17, 2008
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Our law firm is often retained to represent clients where a U.S. Consulate has returned the visa petition to USCIS to consider revocation. This process is slower and less transparent than it should be. Still, this update explains that recently there have been some minor improvements in the process. These improvements were mentioned by Jonathan R. Scharfen, Acting Director of USCIS, in a recent response[1] to the USCIS Ombudsman’s recommendations for reform.[2]

Background

Generally, USCIS approval of a visa petition is a prerequisite for the issuance of a visa by a U.S. consulate abroad. For example, USCIS must approve an employer’s H-1B petition before the worker applies for a visa at a U.S. consulate. Similarly, USCIS must approve a U.S. husband’s immigrant visa petition before the wife can apply for an immigrant visa at a U.S. consulate.

Even after a petition has been approved, USCIS can revoke it for good cause.[3] And consular officers have instructions to return petitions to USCIS[4] for revocation where fraud, misrepresentation, or ineligibility is likely to lead to revocation.[5]

If USCIS concurs with the consular officer’s reasoning, USCIS issues a “Notice of Intent to Revoke” to give the petitioner an opportunity to respond.[6] Once the response from the petitioner is received, USCIS will either reaffirm the petition and send it back to the consulate for processing, or revoke the petition. A petitioner may appeal revocation to the Administrative Appeals Unit.

Ombudsman’s Recommendations Accepted by USCIS

* USCIS Receipt Notice: The Ombudsman recommended that USCIS issue a receipt notice to the petitioner upon receipt from the Consulate of a returned petition. Happily, USCIS has implemented this recommendation. It can take 6-12 months or more between from when a Consulate returns a petition to when USCIS to issue a Notice of Intent to Revoke a returned petition. Previously USCIS didn’t issue receipt notices to acknowledge they had received the returned petitions. Clients were left clueless about the status of their cases.

* USCIS Website Improvements: USCIS has agreed to improve its website’s information related to revocation of petitions, but it appears that the update has not yet been posted.

Ombudsman’s Recommendations Rejected by USCIS

* Uncertain Processing Times: The Ombudsman recommended that USCIS create standard processing times for consideration of revocation of returned petitions, and report current processing times online. USCIS responded that it would not be practical to establish standard processing times because some cases require lengthy fraud investigations, whereas others do not. USCIS’ response is, in my opinion, disappointing. Setting standard processing times are helpful for USCIS service centers to set work priorities and for stakeholders to set reasonable expectations as to how long their cases will take. Moreover, as for other types of cases that USCIS handles, if a fraud investigation is needed, then an exception can be made to the standard processing time.[7] Standard processing times would also, hopefully, reduce the current processing times for consular return cases. Currently, with consular return cases taking a year or more, clients must consider the faster option of filing a new petition. This creates extra work for USCIS, even though USCIS or the Consulate may refuse to act on the new case before USCIS completes decided whether or not to revoke the old petition.

Other Problems with the Consular Return Process

* Readjudication by Consulate: The State Department’s Visa Office has reminded Consulates that they “should not attempt to readjudicate petitions” already decided by USCIS. “Rather, a consular officer should only seek revocation of the petition if the officer knows, or has reason to believe, that the petition approval was obtained through fraud, misrepresentation or other unlawful means, or that the beneficiary is not entitled to the status conferred by the petition. Petitions generally should not be returned unless the post uncovers new information not known to [USCIS] at the time of petition approval.”[8] Despite this reminder, some consular officers seem to return petitions to USCIS when it is not warranted, thereby inconveniencing applicants and creating additional work for USCIS.

* Consular Notice of Intent to Return Petition to USCIS: Currently, a consular officer who decides to return a petition to USCIS needs only to provide notice of this fact to the visa applicant. The officer need not explain the reason why the petition is being returned.[9] Our recommendation is that the officer should provide notice to the visa applicant of the reason why and give the applicant a chance to provide additional evidence that the petition should not be revoked. In some cases, this will be more efficient than waiting a year or more for USCIS to decide whether to revoke the petition.

Conclusion

Despite recent improvements, this legal process remains slower and less transparent than it should be. Counsel should help the visa applicant to be prepared at the time of the consular interview to answer all relevant questions by the consular officer in order to minimize the risk that the officer will return the petition to USCIS with a recommendation for revocation. If there are problems at the interview, it may be wise to contact the Consulate to try to resolve the problems before the petition is returned to USCIS. If the petition is returned, it may be best to both respond to the Notice of Intent to Revoke and consider filing a new petition.

[1] Memo by Jonathan R. Scharfen, USCIS Acting Director, Response to Recommendation #33, Recommendation on the Processing of Petitions That Are Returned by the U.S. Department of State for Revocation/Revalidation (May 23, 2008).

[2] Memo by Prakash Khatri, USCIS Ombudsman, Recommendation on the Processing of Petitions That Are Returned by the U.S. Department of State for Revocation/Revalidation (Aug. 24, 2007).

[3] INA § 205; 8 C.F.R. § 214.2(l)(9).

[4] Consulates return immigrant petitions (including Ks and Vs) to the National Visa Center and nonimmigrant petitions to the Kentucky Consular Center. In either case, petitions are then routed to the appropriate USCIS offices. Forms I-130, Petitions for Alien Relatives, initially filed with an overseas USCIS office are returned directly to that office by the Consulate. Minutes of AILA-DOS Liaison Meeting (Oct. 2007).

[5] Cable, DOS, 01-State-121801 (July 13, 2001).

[6] 8 C.F.R. § 205.2(b); 8 CFR 214.2(l)(9)(iii).

[7] For example, according to USCIS regulations, L-1 petitions should be adjudicated within 30 days. However, where a fraud investigation is needed, USCIS makes an exception to this time limit. 8 C.F.R. § 214.2(l)(7).

[8] Cable, DOS, 01-State-121801 (July 13, 2001).

[9] Minutes of AILA-DOS Liaison Meeting (Oct. 2007).

USCIS Beijing Office Refuses to Accept Fathers’ Visa Petitions

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on May 28, 2008
in Form I-130, Petition for Alien Relative
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Today was the fourth time in four years that U.S. citizen fathers have told me that the Beijing office of U.S. Citizenship and Immigration Services (USCIS) has refused to accept immigrant visa petitions (Forms I-130) on behalf of their children.

On all four occassions, USCIS’ stated reason for the refusal was that the fathers failed to submit photos and Forms G-325A (biographic information) with the petitions. Each time, I’ve contacted USCIS to explain that such materials aren’t required by the official instructions. (A spouse’s immigrant petition does need these materials). And each time, USCIS has agreed to follow the official instructions, accepting the re-submitted petitions.

These four fathers must only be a drop in the bucket. Many others have undoubtedly been refused for the same erroneous reason. If these fathers are able to follow USCIS’ official instructions, USCIS Beijing should train its staff to do so too.

Map of Schools Approved to Sponsor Students with F-1 Visas

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on May 23, 2008
in F-1 Students
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A map of schools approved for admission of students with F-1 visas has been posted on U.S. Immigration and Customs Enforcement’s webpage.

If you know where you want to live but need help choosing a school, this map will tell you what schools in that location have been authorized by the government to sponsor students with F-1 visas.