lawandborder.com

Effective August 1, the government of Dalian in Liaoning Province has instituted a policy that a local enterprise must have a minimum 3 million RMB in registered capital to sponsor a foreigner for  a work permit.

Foreigners who already have work permits at companies with less than 3 million RMB will be grandfathered so they can still qualify for extensions.

China Briefing Magazine suggests this measure is likely to affect service and IT companies more than manufacturers because the former tend to be less capital intensive.

The open question is whether Dalian’s restrictions will spread to other localities. Stay tuned.

On July 9, the Department of State increased the validity of H visas (H-1B and H-2 temporary workers, H-3 trainees, and H-4 dependents) for citizens of China. These visas are now valid for multiple entries over 12 months. That’s an improvement—it was 2 entries over 3 months.

So Chinese can save some money and time that would otherwise go for H visa renewals. And the U.S. Consular posts in China can devote their limited resources to better things than renewing H visas every 3 months.

The validity of U.S. nonimmigrant visas is negotiated with other countries on a reciprocal basis. If you know what reciprocal commitments China made to the U.S. in return for increasing H visa validity, please drop me a line.

Of course, 12 months is still not enough. For example, H-1B visas for citizens of Hong Kong, Taiwan, Singapore, and other countries are valid for up to 60 months (but not to exceed the expiration of the underlying H-1B petition). But that fight is for another day.

Xinhua press agency reports that under new rules officials must report the whereabouts of their spouses and children who have moved abroad.

This is part of an anti-corruption regulation that also requires officials to report changes in their marital status, personal incomes, housing, and their family’ s investments.

According to Xinhua, the new regulation was issued by the General Office of China’s State Council and the General Office of the Communist Party of China (CPC) Central Committee.

The regulation defines “officials” as those leaders holding official ranks of and above county level in government agencies, parties, public institutions, state owned enterprises, and state holding enterprises.

The new regulation requires officials to report changes in their marital status and the location of their spouses and children if they have moved abroad, within 30 days after such a change takes place. Specifically, officials should report their ownership of passports or visas and their children’s marital status if they are married to foreigners or residents of Hong Kong, Macau, and Taiwan.

Apparently, in China there is a risk that if the family has emigrated then the government official is likely to flee China once he or she has saved enough money from corrupt practices such as embezzlement and bribery.

I previously reported on fee increases by the U.S. Department of State (DOS) for nonimmigrant visas effective June 4, 2010.

Now, DOS has also issued an interim final rule increasing fees for immigrant visas and certain American Citizen Services, effective July 13.  DOS justifies the changes by citing an independent cost of service study’s findings that the U.S. Government is not fully covering its costs for providing these services.

Here are the changes for the most common fees:

A lawsuit has been filed in the U.S. District Court in Portland challenging processing of K-1 (fiancee) visas by U.S Citizenship and Immigration Services (USCIS) and the Department of State (DOS). The complaint in Tran v. Napolitano attacks the handling of cases returned by DOS to USCIS for revocation on the basis that the relationship is a sham in that the couple don’t really intend to live as husband and wife.

This suit is a class action, meaning that the plaintiff has asked the court to give relief to all similarly situated plaintiffs.

Read on to see if you may fall within the class and how the lawsuit may affect your rights.

BACKGROUND

Here’s how the K-1 visa process works in brief. First, the U.S. citizen files a petition with USCIS. The requirements for filing a petition include that the couple have met in person within two years of the filing of the petition and intend to enter into a real marriage within 90 days of the fiancee’s arrival in the U.S.

DOS forwards the approved K-1 petition to a U.S. Consulate abroad, where the fiancée applies for a K-1 visa and is interviewed.

The approved K-1 petition is valid for 4 months, although consular officers have the discretion to extend that period. Per a congressional mandate, it is DOS policy to process K-1 visa applications within 30 days of receipt of all necessary documents from the applicant and the USCIS. But in practice DOS often disregards this policy.

If the visa is approved, the fiancée must enter the U.S. within the validity of the visa (which is usually 6 months). Then, the couple must marry and the fiancée must apply to USCIS for adjustment to lawful permanent resident (i.e., green card) status within 90 days of entry.

But if it appears to the consular officer that the fiancée is not eligible to receive a visa, the consular officer must refuse to issue the visa. Following a visa refusal, DOS policy is to return the K-1 petition with a recommendation for revocation to the State Department’s National Visa Center (NVC). Additionally, when returning a petition to USCIS, DOS places a marker called a “P6C1” marker, or “quasi-refusal” in an applicant’s record as a reminder that if USCIS revokes the petition on the basis that the relationship is a sham then the fiancée is permanently inadmissible to the U.S. on the basis of the misrepresentation.

According to the complaint, following receipt of the returned K-1 petition, the NVC forwards all K-1 petitions to the USCIS California Service Center. (I personally am not aware of this practice. It was my understanding that NVC forwards the petitions to either the California Service Center or the Vermont Service Center, whichever approved the petition originally.)

USCIS often delays action on returned K-1 petitions for 6 months to 1 year or more. In fact, according to the complaint, the California Service Center takes no action at all. (The California Service Center notifies the petitioner that no action will be taken because the petition’s 4-month validity has expired.)

REMEDIES SOUGHT BY THE COMPLAINT

The complaint asks the court to order DOS and USCIS to act more quickly throughout the K-1 process. There is some statutory authority. The statute says that it shall be DOS “policy” to adjudicate a visa application within 30 days of receipt of all necessary documents from USCIS and the applicant. But this statute seems to apply only to the time period between the interview (when the applicant submits his documents) and the DOS decision.

The complaint also asks the court to void the USCIS regulation purporting to limit the validity of a K-1 petition to 4 months, on the basis that USCIS lacks congressional authority to promulgate such a regulation.

And the complaint asks the court to order DOS to take the following steps:

1. If the K-1 visa application is denied, provide a written notice of the factual and legal basis for the denial that is not “conclusive, speculative, equivocal or irrelevant.” (In the lead plaintiff’s case, DOS apparently issued a detailed notice of the factual grounds for denial, although the complaint attacks that notice as speculative and irrelevant. In my experience, sometimes the Consulate provides no statement of the factual basis for the refusal).

2. Allow submission of rebuttal evidence before the petition is returned to USCIS. (DOS policy memos appear to require consular officers to provide this opportunity, but in practice the Consulates often don’t provide this opportunity, and the Chief of the Advisory Opinions Division at the DOS Visa Office recently told me he believes this is “discretionary”).

3. Return petitions to USCIS only where substantial evidence exists that fraud, misrepresentation, or ineligibility would lead to denial, and not where it is merely suspected. (This is the real heart of the case. While some K-1 visa applications are fraudulent, the majority are real. Some consular officers seem to prefer to dump questionable cases by returning them to DOS rather than investigating to determine if there really is fraud. DOS currently advises consular officers to follow the standard of returning cases to USCIS only if there is substantial evidence of fraud, but that guidance is often ignored. As a separate matter, there is at least a good argument that USCIS lacks authority to revoke K-1 petitions. Unlike other types of visas, there is no regulatory authority for revocation of K-1s. If USCIS does lack this authority, perhaps the complaint should seek a court order forbidding DOS from returning any petitions to USCIS for purposes of revocation).

4. Not classify the applicant as inadmissibile for misrepresentation solely because USCIS revokes the petition. (This remedy seems to be unnecessary to the extent that USCIS practice is not to revoke the petition but instead to take no action).

ARE YOU A POTENTIAL CLASS MEMBER?

The proposed class would include all citizens who filed a K-1 petition that was approved by USCIS buy whose fiancée was not issued a K-1 visa due to DOS returning the petition to USCIS for review and revocation, termination, or denial.

It’s possible that this litigation may result in changes making K-1 consular processing more streamlined and more procedurally fair.

Of course, it’s still early in the lawsuit. It remains to see if the court will certify that class, allowing the class action to move forward. If so, litigation can still take years, and any district court order may be appealed.

Moreover, the doctrine of “consular nonreviewability” may lead to dismissal of many or all of the claims against DOS. Under this doctrine, the decisions made by consular officers to reject visas are not subject to judicial review. In other words, a person denied a visa cannot appeal to a court, even if the denial was based on a consular officer’s mistake of fact or a misunderstanding of the law, or even if the officer acted capriciously, arbitrarily, or maliciously. There have been a few cases that have avoided dismissal for consular nonreviewability. One such case is Patel v. Reno (9th Cir.1997), in which the United States Consulate in Bombay, India had failed to resolve certain pending immigrant visa applications for eight years. The Ninth Circuit held that where a suit challenges the authority of a consular officer to take or fail to take a nondiscretionary action granting or denying a visa, the court can grant mandamus relief and force the consulate to issue a decision (though importantly, in issuing the writ, the court may not direct the agency how to act). Especially if it can be argued that USCIS lacks authority to revoke K-1 petitions, it’s possible that the court would hold that the consular officer’s return of petitions to USCIS may amount to a refusal to adjudicate the visa application, which the court can address.

While this litigation is pending, many persons whose K-1 petitions are denied decide to marry and file a Form I-130, Petition for Alien Relative. In that event, this litigation may not provide any remedy because reconsideration of the denied K-1 visa application isnt’ possible if the applicant is no longer a fiancée.

For now, we recommend that potential class members seek legal advice about what impact the litigation may have on their cases.

Reporter Gady Epstein has a story about illegal immigration to China in the July 19 issue of Forbes.

In short, he reports that the tightening labor supply and rising wages in at least certain sectors and places in China is attracting “tens of thousands of illegal aliens” from Vietnam, Cambodia, and Burma.

According to Epstein, “China has busted several criminal rings this year importing Vietnamese workers. In a publicized crackdown on two networks operating in Guangxi, police caught 369 illegal immigrants who were fanning out across southern China to work. Brokers who bring in these workers can earn $200 a head.”

The illegal immigrants take jobs in sugarcane fields, garment workshops and construction sites. “The jobs pay less than $5 a day, but that’s three times the average wage in Vietnam and perhaps half as much as a Chinese worker could demand.”

Other key quotes from the article:

“They are hard workers and obedient employees,” Zeng Xiangbiao, a shoe factory owner in Dongguan, told a Chinese reporter in a familiar refrain on immigrant labor. He has more than 200 workers from Cambodia and Laos, a quarter of his workforce. “They could work 15 to 16 hours a day and work for a month without any break. Few of the domestic workers, especially those born in the 1980s and after, could take this.”

So far this has risen to the level of a trend but not a crisis. The Chinese labor market can absorb low-paid workers for now, and the Vietnamese labor market doesn’t have enough well-paying jobs. Many border crossers also have Chinese ancestry and can speak Cantonese, the dominant language spoken in Guangdong, helping to smooth the road for them. Moreover, China is not in any imminent danger of having the millions of undocumented migrants that bedevil the U.S. The official numbers of those caught remain in the thousands–the Guangxi border patrol reported catching 1,820 illegal crossers and stopping 4,839 more in 2009, according to state media.

How many thousands more don’t get stopped? Vi Xuan Mai, deputy director of the labor department in the Vietnamese province of Lang Son, tells FORBES that 5,000 workers cross each year from his province, one of six along the Chinese border. “The trend is increasing,” he says, “but we can’t stop it.”

I’ve previously blogged about illegal immigration to China from Africa, Burma, and North Korea.

I’ve recently written about the long delays for nonimmigrant visa appointments in China. The U.S. Consular Mission has taken steps to address those delays. One such step is to allow for consular shopping. According to the Embassy website:

Residents of China may apply for a non-immigrant visa at any U.S. Consular Section in China, regardless of the province or city of residence.  We have Consular Sections at the U.S. Embassy in Beijing and the U.S. Consulates General in Chengdu, Guangzhou, Shanghai, and Shenyang.

This step is not exactly revolutionary. The State Department’s own guidelines have long encouraged Consulates to accept visa applications from any person physically present in the consular district, saying that such applications should “seldom, if ever” be refused on the basis that the applicant is not a resident. Yet the U.S. Consulates in China have largely ignored that guidance over the years.

Now, applicants can shop for the best consulate. Which one is best? Usually, it’s convenient to visit the nearest consulate. But if the appointment wait time is too long at that post, it may be preferable to apply where the wait is shorter. The State Department list wait times online.

For law firms like ours that advise applicants on visa issues, the availability of consular shopping actually adds another level of complexity to the application process. The attitudes of the five consulates in mainland China are not the same on all issues. And some consulates are more knowledgeable and consistent in their treatment of certain issues.

One example relates to the issue of whether applicants normally classifiable as H-1 (temporary workers in specialty occupations) may qualify for the quicker and less expensive B-1 (visitor for business) visa if they are customarily employed in China and will not be paid by a U.S. source. See 9 FAM 41.31. Our firm recently worked with two officers at the U.S. Embassy in Beijing to educate them about this relatively obscure legal provision and to persuade them that our clients qualified. In contrast, in Shenyang and Guangzhou officers have resisted applying this provision.

In short, let’s applaud the U.S. Consular Mission in China for allowing consular shopping. But shop wisely. And, by all means, don’t abuse the privilege. For instance, if yesterday one post refused your visa application, it would probably be unwise to try your luck at a new post today. Instead, you’ll probably need to convince the first post why their decision was wrong.

Father’s Day is approaching in America. A chance to celebrate dad’s ability to answer any question thus: “I’ll tell you why. Because I said so. That’s why.”

The U.S. Consulates in China are equally cagey. Most persons denied nonimmigrant visas are given a form letter saying that the visa was denied under section 214(b) of the Immigration and Nationality Act. That section of law essentially requires that an applicant for a nonimmigrant visa prove that … he is entitled to a nonimmigrant visa.* Duh!

The form letter goes on to explain that the “most frequent” reason for refusal is that the applicant failed to prove she has strong enough ties to China that she doesn’t intend to immigrate to the U.S.

I may be wrong, but it seems to me that a person denied a visa doesn’t want to know the “most frequent” reason for refusal. Instead, she wants to know the specific reason why she was denied.

I plan to test this theory. Next time I punish my son by sending him to his room, when he cries “why?”, I’ll tell him that it’s because he’s violated “one of” daddy’s rules and I’ll give him a list of the “most frequently” violated rules. Think that will do the trick?

Of course, the U.S. Consulates hands out form letters because otherwise telling each person why he was denied a visa could be an onerous burden. Similarly, I like to keep my explanations to my son simple: “Because I said so. That’s why.” That does the trick.

More seriously, if you are refused a visa, it may be wise to politely ask the officer to explain why. Or it may be wise to ask your lawyer to contact the Consulate to find out why. Knowing this will help you figure out how best to reapply.

___________

* Section 214(b) reads: “Every alien … shall be presumed to be an immigrant [i.e., ineligible for a nonimmigrant visa] until he establishes to the satisfaction of the consular officer, at the time of application for a visa … that he is entitled to a nonimmigrant status under section 101(a)(15)” (the section of the law setting out the requirements for nonimmigrant visas).

The U.S. Consulates in China are all experiencing delays in scheduling visa appointments. So, if you need an appointment, be sure to apply as early as possible.

In particular, Beijing wait times have grown to about 100 days. That means that you can forget about making a trip to the U.S. for business or pleasure this summer if you need to apply in Beijing through the regular application channel.

The Beijing website explains that the appointment call center is receiving a “record surge” of appointment requests and that some callers are “experiencing difficulties” getting through.

Unfortunately, there will be Chinese who will be unable to travel this summer, and there will be affected U.S. businesses and families.

Here are the current wait times, according to the State Department:

BEIJING
Visitors visas: 98 days
Student/Exchange Visitors Visas: 45 days
All other Nonimmigrant Visas: 98 days

CHENGDU
Visitors visas: 34 days
Student/Exchange Visitors Visas: 31 days
All other Nonimmigrant Visas: 10 days

GUANGZHOU
Visitors visas: 28 days
Student/Exchange Visitors Visas: 2 days
All other Nonimmigrant Visas: 2 days

SHANGHAI
Visitors visas: 30 days
Student/Exchange Visitors Visas: 3 days
All other Nonimmigrant Visas: 14 days

SHENYANG
Visitors visas: 31 days
Student/Exchange Visitors Visas: 31 days
All other Nonimmigrant Visas: 31 days

Some visa applicants are not subject to those wait times. For example, special channels available to certain members of the American Chamber of Commerce. And expedited appointments will remain possible for humanitarian emergencies.

Is an immigration lawyer a mere paper pusher? Just a technocrat who relishes in the minutiae of the Immigration and Nationality Act?

No. I assert–with a grandiose gesture of my arm proper for such an assertion–that an immigration lawyer is a prime mover of human evolution itself!

An essay by Matt Ridley in the May 22, 2010, Wall Street Journal explains that human evolution presents a puzzle:

Nothing seems to explain the sudden takeoff of the last 45,000 years—the conversion of just another rare predatory ape into a planet dominator with rapidly progressing technologies. Once “progress” started to produce new tools, different ways of life and burgeoning populations, it accelerated all over the world, culminating in agriculture, cities, literacy and all the rest. Yet all the ingredients of human success—tool making, big brains, culture, fire, even language—seem to have been in place half a million years before and nothing happened. Tools were made to the same monotonous design for hundreds of thousands of years and the ecological impact of people was minimal. Then suddenly—bang!—culture exploded, starting in Africa. Why then, why there?

The answer, according to Ridley, lies in a new idea, borrowed from economics, known as collective intelligence: the notion that what determines the inventiveness and rate of cultural change of a population is the amount of interaction between individuals:

Scientists have so far been looking for the answer to this riddle in the wrong place: inside human heads. Most have been expecting to find a sort of neural or genetic breakthrough that sparked a “big bang of human consciousness,” an auspicious mutation so that people could speak, think or plan better, setting the human race on the path to continuous and exponential innovation.

But the sophistication of the modern world lies not in individual intelligence or imagination. It is a collective enterprise. Nobody—literally nobody—knows how to make the pencil on my desk (as the economist Leonard Read once pointed out), let alone the computer on which I am writing. The knowledge of how to design, mine, fell, extract, synthesize, combine, manufacture and market these things is fragmented among thousands, sometimes millions of heads. Once human progress started, it was no longer limited by the size of human brains. Intelligence became collective and cumulative.

In the modern world, innovation is a collective enterprise that relies on exchange. As Brian Arthur argues in his book “The Nature of Technology,” nearly all technologies are combinations of other technologies and new ideas come from swapping things and thoughts.

Ridley argues that the notion that exchange stimulated innovation by bringing together different ideas has a close parallel in biological evolution:

The Darwinian process by which creatures change depends crucially on sexual reproduction, which brings together mutations from different lineages. Without sex, the best mutations defeat the second best, which then get lost to posterity. With sex, they come together and join the same team. So sex makes evolution a collective and cumulative process in which any individual can draw on the gene pool of the whole species. And when it comes to gene pools, the species with gene lakes generally do better than the ones with gene ponds—hence the vulnerability of island species to competition with continental ones.

It is precisely the same in cultural evolution. Trade is to culture as sex is to biology. Exchange makes cultural change collective and cumulative. It becomes possible to draw upon inventions made throughout society, not just in your neighborhood. The rate of cultural and economic progress depends on the rate at which ideas are having sex.

Once human beings started swapping things and thoughts, they stumbled upon divisions of labor, in which specialization led to mutually beneficial collective knowledge. Specialization is the means by which exchange encourages innovation: In getting better at making your product or delivering your service, you come up with new tools. The story of the human race has been a gradual spread of specialization and exchange ever since: Prosperity consists of getting more and more narrow in what you make and more and more diverse in what you buy. Self-sufficiency—subsistence—is poverty.

Ridley concludes that new technologies, like the search engine, the mobile phone and container shipping, drive innovation because they allow people to swap things and thoughts.