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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.

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. (This topic was also addressed by the State Department in DOS Replies to AILA Liaison Questions: AILA-DOS Liaison Meeting Nov. 5, 2008 at 4, AILA Infonet Doc. # 09022660.)

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

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).

Update: USCIS now admits that the hold-in-abeyance policy was not mentioned in the Norton memo, but insists that the practice was adopted following the memo. USCIS states that the purpose of the practice is to ensure consistency in adjudications. See USCIS-AILA Liaison Committee Agenda (Oct. 28, 2008).

In a July 2008 decision, the U.S. Citizenship and Immigration Services (USCIS) Administrative Appeals Office (AAO) made a fundamental mistake by concluding that it is not required to follow USCIS headquarters’ policy memos. [1] What ever happened to chain of command?

In the case, GSTechnical Services Inc. sought an L-1 specialized knowledge visa for an employee, Sameer Sharma. [2] The AAO held that the employee’s two years of experience on two full-cycle SAP projects was insufficient to prove “specialized knowledge” to qualify for an L-1 visa as an SAP enterprise resource planning consultant. 

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.” [3]

In this case, the AAO reached the extraordinary conclusion that it need not follow the “Puleo Memo” from USCIS headquarters providing guidance on the meaning of “specialized knowledge” [4] because the memo doesn’t “establish judicially enforceable standards.” [5] It’s irrelevant whether a court would enforce the memo’s standards. What’s important is that policy memos are “binding on all USCIS officers,” including the AAO. [6] The AAO’s insistence on ignoring the Puleo Memo is an astonishing example of AAO ignoring their bosses at AAO headquarters.

Note that although policy memoranda are “binding on all USCIS officers,” that doesn’t mean that an applicant can file a lawsuit in court against USCIS for failing to follow a policy memo.  Courts have consistently held that when internal agency guidelines impose obligations on officials, an individual does not have a right to sue to force compliance with those guidelines. [7]

The effect of ignoring the Puleo Memo was to instead rely on older caselaw holding that to qualify for L-1B status an individual must be a “key employee” and that visas will be limited to a “narrowly drawn” group that is not “large.” [8] Since July, some companies’ L-1B petitiions have been delayed and denied by USCIS officers applying the reasoning of this AAO decision.

There’s an adage that “bad facts make bad law.” This AAO decision was likely colored by the fact that GST Technical Services appears to have used L-1 visas for “wholesale transfer of hundreds” of Indians to the U.S. to provide software consulting services at other companies’ worksites. [9] USCIS and Congress have on multiple occassions taken steps to limit the availability of L-1 visas for such “job shops.”

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

[2] The names of the petitioner and beneficiary are disclosed in an amicus brief by the U.S. Chamber of Commerce, at www.miniurl.org/cmr.

[3] 8 C.F.R. § 214.2(l)(1)(ii)(D); see INA § 101(a)(15)(L).

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

[5] Matter of [name not provided], supra, at 21.

[6] Adjudicator’s Field Manual § 3.4(a).

[7] Internal guidelines may be challenged as illegal if they are in fact legislative rules or if they violate law. See generally William F. Funk, When is a ‘Rule’ a Regulation? Marking a Clear Line Between Nonlegislative Rules and Legislative Rules, available at http://ssrn.com/abstract=296183.

[8] Matter of [name not provided], supra, at 26, citing Matter of Penner, 18 I. & N. Dec. 49, 51 (Comm. 1982).

[9] Matter of [name not provided], supra, at 36.

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.

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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?”