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Clients often ask whether to qualify for an immigrant visa (i.e., a green card) they must intend to establish a residence in the U.S. or move there permanently. For example, a father may wish to apply for an immigrant visa through the EB-5 investor category so that his child can get an immigrant visa to study in the U.S.

The answer is that an applicant will qualify for an immigrant visa regardless of whether he or she intends to establish a residence in the U.S. or move permanently to the U.S.

A green card holder has the “privilege of residing permanently” in the U.S.  INA § 101(a)(20) (emphasis added).  But an immigrant visa applicant is not required to prove an intention to establish a residence in the U.S. or to move to the U.S. permanently. An “immigrant” is simply defined as “every alien except an alien who is within one of the” defined nonimmigrant visa classes. INA § 101(a)(15). Moreover, under 22 C.F.R. § 42.81, the only grounds for refusal of an immigrant visa are INA § 212(a) or INA § 221(g). Neither of those subsections incorporates a requirement that an immigrant visa applicant must intend to establish a residence in the U.S. or move to the U.S. permanently.

As a matter of public policy, it makes sense that Congress doesn’t require immigrant visa applicants to prove an intention to establish a residence in the U.S. or reside permanently in the U.S. First, many immigrant visa  applicants have never been to the U.S. It would be absurd to require them to prove beforehand that they have weighed the advantages and disadvantages of living in a country that they have never been to and formed a clear intent to live there permanently. Second, if consular officers were required to determine immigrant visa  applicants’ intent, the officers would need to rely on objective evidence of intent, such as steps that applicants have taken to sever ties to their home countries. But it could be tragic and costly for an applicant to sever those ties (such as selling a home and quitting a job) if the applicant is subsequently refused an immigrant visa  by the Consulate or refused admission to the U.S. by Customs and Border Protection. The INA does not require such irrational behavior.

It’s critical to realize that although an immigrant visa will be approved regardless of whether the applicant intends to move to the U.S., still a person who gets a green card but doesn’t move to the U.S. will later be at risk of losing it due to abandonment. In short, a green card holder has the privilege of residing permanently in the U.S. but loses that privilege if he or she instead resides abroad. This is a topic for another day.

If you are familiar with the process of applying for an immigrant visa at the U.S. Consulate in Guangzhou, you know that  it can take months for the National Visa Center (NVC) to mail a case to the Consulate. The delay occur because China’s Customs office drags their feet in releasing the Consulate’s mail. NVC has now begun a pilot program to eliminate that delay by sending cases electronically to the Consulate.

As background, a petitioner residing in the U.S. files the Form I-130, Petition for Alien Relative, with a U.S. Citizenship and Immigration Services (USCIS) stateside office. Upon approval, USCIS forwards the case to NVC. The NVC does administrative processing of the file (including collecting the fees and case documents from the petitioner and applicant), then sends the file to the Consulate for interview.

The NVC pilot program to send cases electronically to the Consulate is only available to immediate relatives of U.S. citizens over the age of 21 years, including the following visa categories:

• IR-1: Spouse of U.S. citizen
• IR-2: Child of U.S. citizen
• CR-1: Conditional Spouse of U.S. citizen (i.e., married less than 2 years ago)
• CR-2: Conditional Child of U.S. citizen
• IR-5: Parent of U.S. citizen

An applicant who wishes to participate in the pilot program must send an email to NVC to opt in. Then, the applicant will receive instructions on how to submit documents to NVC by email in PDF format. NVC will forward the electronic documents to the Consulate. Later, the applicant will bring the original documents to the interview.

For persons who opt to use electronic processing, the case number will be changed by NVC so that it starts with “GZO” instead of the original “GUZ” case number.

I haven’t seen any estimates from the government, but my best estimate is that the pilot program will shave an average of 3 months off immigrant visa processing, so that the entire process (from filing the I-130 to obtaining the immigrant visa) will be 9-15 months instead of the previous 12-18 months. Most often, the critical variable for determining whether the case will take closer to 9 or 15 months will be how long USCIS takes to process the I-130.

Our firm is well prepared for the switch to electronic processing because we already do electronic processing for various kinds of cases with the State Department, Department of Homeland Security, and the Department of Labor.

Further information is available on the Consulate’s website and on the NVC’s following webpages:

* Important Notice to Immigrant Visa Applicants Concerning Electronic Processing Requirements
* NVC Immigrant Visa Electronically Processing
* Electronic Processing Participation (how to opt in)

USCIS has announced that applicants may experience up to an eight-week delay in the delivery of their permanent resident cards while USCIS upgrades its card production equipment.

If you have recently been admitted to the U.S. as an immigrant, you will still be able to travel and seek employment in the U.S. Your immigrant visa stamped by USCIS at the time of admission is valid evidence of lawful permanent resident (LPR) status for one year from the date of admission.

It was my pleasure to write a chapter for the new book, The Visa Processing Guide & Consular Posts Handbook (2009-2010), published by the American Immigration Lawyer’s Association (AILA). This 800-page reference book for immigration lawyers provides insight on procedures and strategies for consular processing of U.S. nonimmigrant and immigrant visas. More information is available here.

Hong Skains, age 37, is a green card holder from China.  She registered and voted in the 2004 federal elections in Colorado, apparently unaware that only citizens are eligible to vote.

According to the Denver Post, during an interview at U.S. Citizenship and Immigration Services (USCIS) on her application to become a naturalized citizen, Skains proudly declared that she had voted for George W. Bush. Her naturalization application was denied on the ground that she lacks good moral character. (I’m refraining from any jokes about how voting for Bush is a sign of bad character).

The “good moral character” requirement for naturalization means that the applicant must have behavior that meets the moral standard of the average citizen in the community. There’s nothing immoral about mistakenly believing that green card holders can vote. I wonder whether the naturalization denial was a mistake or whether there is more to the story. 

In any event, USCIS referred Skains to Immigration Court for a deportation hearing. Under the Immigration and Nationality Act, a noncitizen who “has voted in violation of any Federal … statute … is deportable.” There is a very narrow exception for persons who mistakenly believe they are citizens, if they grew up in the U.S. and both parents are citizens. 

So at first blush, it would appear that the Immigration Judge has no choice but to find that Skains is subject to deportation. The best strategy for Skains is, perhaps, to beg. If she can convince the Department of Homeland Security that she really just made a mistake, the Department could exercise prosecutorial discretion to recommend to the Court that deportation proceedings be terminated.

Utah Governor Jon Huntsman, a Republican, has been nominated by President Obama as ambassador to China.

Huntsman, 49, learned to speak Mandarin Chinese during his days as a Mormon missionary in Taiwan. He and his wife Mary Kaye have seven children, one of whom was adopted from China.

He has been a political moderate on issues like immigration, gay rights and the environment, even though he represented one of the most conservative states in the country.

Summary

Currently neither the U.S. government, the Chinese government, or the World Health Organization is discouraging travel between the U.S. and China. However, travelers to China need to be aware of the possibility of travel delay, including quarantine by the Chinese government.

U.S. Government Sources:

The Centers for Disease Control (CDC) states that it does not recommend that people avoid traveling to the U.S. or within the U.S. See Novel H1N1 Flu in the United States.

CDC warns that travelers from the U.S. to China may experience travel delay, including quarantine, upon arrival. See Possible International Travel Delays Due to Novel H1N1 Flu Screening.

Additonal Resources:

1. CDC, Novel H1N1 Flu and Travel
2. U.S. Department of State, 2009 H1N1 Influenza Travel Alert
3. CDC, H1N1 Flu (Swine Flu) and You

Chinese Government Sources:

Neither the Chinese Center for Disease Control and Prevention (CDCP) nor the China National Tourism Administration (CNTA) has issued an advisory discouraging travel between China and the U.S.

Additional Resources:

1. CNTA Advisory: Chinese travelers to the U.S. should take preventive measures, including washing hands frequently, wearing masks, and avoiding crowded places as much as possible.

World Health Organization (WHO):

WHO is not recommending any travel restrictions due to H1N1. See Travel.

WHO does not recommend screenings at country entry and exit points. See Travel.

Additional resources:

1. What Can I Do?

Wayne England, a Tennessee alpaca farmer, was duped into signing an invitation letter used by two Chinese men to apply for U.S. visas. The men entered the U.S. with the visas and then disappeared off the radar screen.

I was interested enough in the original story by Forbes that I decided to interview England to find out more about how he (and the Embassy) were scammed.

THE SCAM

The story begins in November 2008, when England received an unsolicited email from Huang Siyuan. The man claimed to be an agent working on behalf of Chunjiang Livestock Co. in Hebei, China. He said he’d seen England’s website and was interested in buying up to 100 alpacas. (England’s alpacas are listed at $1,000 to $32,000 each.) Huang said the company would send three people, including a veterinarian, to Tennessee to learn about the alpacas and discuss the purchase.

Huang and England discussed terms of sale. England agreed to a 10% discount off the list price. He asked for half the payment when the order was placed and the other half before delivering the animals to the quarantine station for export

Huang drafted the attached invitation letter, which England signed.

Huang insisted that England mail him photos of the alpacas and other materials. England spent $225 on UPS.

England subsqequently received an email from a consular officer at the Embassy. On March 6, 2009, two applicants (Zhang Junqi and Liu Jianqiang) had applied for visas using England’s invitation letter.  The officer asked for verification that England had issued the invitation letter and that it wasn’t “counterfeit” or “altered.”

In fact, the invitation letter had been altered after England signed it. The names of the visa applicants were changed. Concerned, England forwarded the Embassy’s email to Huang, who said these new individuals would be visiting instead. England then replied to the Embassy that the invitation letter was legitimate.

In mid-March, when the visitors still hadn’t arrived, Huang told England they were hospitalized after a car wreck.

At this point, England was suspicious enough to contact the Embassy again, and the Embassy told him that the applicants had in fact been issued visas and traveled to California.

England wrote to Huang: “It pains me deeply to learn that you’re such a fraud. Your two friends ended up in California.” He asked for $1000 compensation for his troubles. Surprisingly, Huang wired England $600. Huang also offered to make England a partner in his visa scams, offering $1000 to $2000 for each additional invitation letter England provided. England turned down that offer.

In the end, England feels that he suffered significant losses from the scam. Besides the $225 UPS bill, he estimates he wasted 150 to 200 hours working on the deal. Most importantly, for the first few months of the year he didn’t try to sell his alpacas by entering them in shows becuase he thought they would instead be sold to China.
 

THE WARNING SIGNS

In retrospect, England admits there were a number of warning signs that this was not a legitimate business deal:

• Huang’s inquiry was unsolicited.
• England never communicated with the individuals who supposedly were coming to visit him. He only spoke with Huang, their supposed agent.
• While England was impressed that Huang asked “all the right questions” by email, the fact that they never spoke by phone may be a sign that Huang had something to hide.
• The strongest sign of a scam was when Huang altered the invitees names on the invitation letter after England signed it. (By this point, England was so eager to make a sale that he didn’t answer the Embassy’s inquiry as to whether his letter had been altered.)
   

DUE DILIGENCE

The Embassy warns that some requests for invitation letters are legitimate,  but some are not. “Oftentimes, the PRC national initiating the contact has no relationship to his/her claimed Chinese employer.  In fact, it is not unusual for these individuals to be part of elaborate human smuggling syndicates.”

The U.S. Commercial Service recommends that exporters use the following precautions:

1. Request a copy of the business license; check validy of address and phone number, license validity date, name of registered representative
2. Request a copy of the company’s certificate of import/export authority
3. Verify the company’s international trade experience and avoid firms that have less than two years of experience
4. Seek multiple references and check them. Request referrals to both suppliers and customers
5. Order an International Company Profile report through the U.S. Commercial Service
6. Accept only secured forms of payment such as letter of credit or direct telegraphic transfer (T/T or wire transfer)

Due diligence may save a U.S. exporter time, money, and aggravation. It also may help the exporter to avoid inadvertently assisting persons in entering the U.S. illegally.

And it may protect the exporter’s reputation. The next time somebody applies for a visa to visit England’s alpaca farm, the application will probably be strictly scrutinized or denied outright.

(Huang Siyuan did not reply to emails requesting an interview).

“Marketplace,” a business show on public radio, has picked up on the security advisory opinion (SAO) story. A reporter in New Delhi met with several H-1B workers who have been stuck abroad for up to 4 months waiting for SAO checks.

About two dozen people meet for lunch at a cafe in an upscale neighborhood of New Delhi. They have a lot in common: they’re Indians who work in the U.S. on H-1B visas. They have advanced degrees from American universities in specialized fields like science, medicine and engineering. And they’ve all been in limbo here for months, just waiting.

DHIRAJ JOSHI: We weren’t even warned about this.

That’s Dhiraj Joshi, who’s spent years in the U.S. designing image recognition software for Eastman Kodak. He came back to India to get married. He thought it would be a two or three week trip. But U.S. authorities subjected his H-1B visa renewal to additional — and time-consuming — security checks because he works with a technology that they say could pose a threat to American national security if put in the wrong hands.

JOSHI: They asked me for my research details, like my present, past and future research plans. They gave me a paper, a red slip, saying it would take four to six weeks, but I had no idea that it would take so long.

So long, in his case, has been four months. His friend, Himani Sharma, came back to visit family. She’s a post-doctoral researcher who’s normally based outside of Boston. She’s been waiting for about three months, long enough for her American employer to put her on unpaid leave until her visa issue is cleared up.

HIMANI SHARMA: This is a mental trauma for our family. We have mortgages to pay. We have responsibilities to take care of. If I lose my job, another house is going on foreclosure. I know that. Who’s responsible for that?

Falling behind on mortgages or car loan payments is one thing, but many of these H-1B visa holders are also falling behind on their work projects to the frustration their U.S. bosses and colleagues.

The Indians understand the need for rigorous checks for national security purposes…. David Donahue, the U.S. deputy assistant secretary of state for visa services, denies that.

DAVID DONAHUE: A certain small percentage — about 3 percent worldwide — of our cases do require extra administrative checks. We do not like it when it takes this long for those to come through.

Donahue says wait times are increasing because of rising global demand for U.S. visas, especially in places like India, where applications have shot up 65 percent over the last two years.

Back at the cafe, many of the H-1B holders are growing impatient. Some are rethinking their options, and looking for jobs right here in India.

By TINI TRAN, Associated Press Writer
Tue May 5, 10:28 am ET

BEIJING – China has tightened visa rules for citizens from the United States, which has reported the second highest number of swine flu cases in the world.

 A notice dated May 3 on the Web site for the Chinese Embassy and its consulates in the U.S. said that all visa applications would now require six business days to process, with express and rush services for visa applications suspended until further notice.

 It is unclear exactly why the rules have been changed, but it came hot on the heels of strident measures by China to contain any possible spread of swine flu, including quarantining of some foreign nationals.

 The new visa regulation, effective as of May 4, appears to apply to all Chinese visas, including tourist and business categories. Visa applicants are also required to fill out a form declaring which countries and U.S. states they had visited two weeks prior.

 Previously, U.S. nationals could obtain visas in as little as one day.

 More than 1,400 people globally have been infected with swine flu, with Mexico reporting the most confirmed cases with 802. The United States so far has reported 380 cases in more than 30 states.

 On Tuesday, Foreign Ministry spokesman Ma Zhaoxu refused to address the specific visa changes for Americans, saying only that “relevant adjustment (to the visa policy) is non-discriminatory and is not targeted at any country. The adjustment of visa policy will not affect the normal entry of foreigners and exchanges of people.”

 The new rules do not appear to be in effect for any other country, including Spain or Canada, where swine flu has also been detected.

 China has already earned the ire of the Mexican government for its aggressive quarantine measures after a Mexican traveler flying to Hong Kong via Shanghai was diagnosed with the illness over the weekend.

 More than 70 Mexicans were quarantined in hotels and hospitals in mainland China. A plane chartered by the Mexican government arrived in several cities in China on Tuesday to pick up these and other Mexican citizens and take them home.

 China has denied singling out Mexicans, saying it was purely a medical matter and that it hoped Mexico would be “objective and calm.”

 A group of 29 Canadian students and their professor were also being held in isolation in China. Two Americans were in isolation while another two who were in quarantine have been released.

Last year, China severely tightened visa regulations ahead of the Olympic Games in August as part of a wider security clampdown, and earlier this month, travel agencies in Hong Kong reported that visa restrictions were being tightened again ahead of the 60th anniversary in October of the communist nation’s founding.

 Last week, government spokeswoman Jiang Yu said the reports of changes to visa regulations were “groundless.”