lawandborder.com

I previously reported on a September 2008 USCIS report, entitled H-1B Benefit Fraud & Compliance Assessment, finding that small companies are more likely to violate H-1B visa rules. USCIS apparently now has begun making procedural changes consistent with the report.

The American Immigration Lawyers Association believes that USCIS has in some cases made overly broad requests for evidence from H-1B petitioners, seeking for example: “extremely detailed employer financial information; requests for proof of existence of an employer’s place of business (copies of leases, verification of proper use by zoning or planning authorities, letters from landlords, etc.); comprehensive lists of all employees, or all nonimmigrant employees, along with supporting payroll and tax information; requests for job descriptions in extreme detail; an explanation of the specialty nature of the occupation for which the nonimmigrant worker’s services are sought (especially the obvious); requests for prospective itineraries; copies of contracts where the employee will be working on a project for a third party….”

Of course USCIS should crack down on fraud wherever it is found. However, it seems to me that it is wrongheaded to crack down on small businesses. For H-1B visas the main problem is that the rules are hyper technical. They consist of hundreds of pages of regulations from USCIS, the U.S. Department of Labor, and the U.S. Department of State. In my opinion, the best way to reduce technical violations is to simplify the bewildering maze of rules.

With our economy in a slump, H-1B visas are a good thing.  They’re good for companies, who can recruit the best talent wherever it can be found. They’re good for U.S. workers too because for each H-1B worker hired the employer pays a $750 or $1500 “ACWIA” fee to the federal government to be used for training U.S. workers so our country can compete better in the global economy.

A new visa waiver program has been implemented for Guam and the Commonwealth of Northern Marianas Islands (CNMI). U.S. Customs and Border Protection (CBP) regulations for the program were published January 16, 2009. The program begins June 1, 2009. Chinese passport holders are not eligible for visa waivers, meaning that visas continue to be necessary for Chinese to travel to Guam and CNMI.

The Territory of Guam is an island in the western Pacific and is an organized, unincorporated insular area of the U.S. And CNMI is a commonwealth in political union with the United States. The immigration laws of the U.S. apply in both Guam and CNMI.

The new program allows nonimmigrant visitors who are citizens of certain countries to seek admission for business or pleasure and solely for entry into and stay on Guam or CNMI without a visa for a period of authorized stay of no longer than 45 days.

By law, in determining which countries can participate in the visa waiver program, the DHS Secretary is required to consider numerous factors, including whether the country provides a “significant economic benefit” to CNMI; immigration law compliance by the country’s nationals (rates of nonimmigrant visa refusals and overstays); the country’s cooperation in immigration law enforcement (electronic travel authorizations, procedures for reporting lost and stolen passports, repatriation of aliens); and whether the country poses a threat to U.S. welfare, safety, or security.

The countries approved for the program are: Australia, Brunei, Hong Kong (Hong Kong Special Administrative Region (SAR) passport and Hong Kong identification card is required), Japan, Malaysia, Nauru, New Zealand, Papua New Guinea, Republic of Korea, Singapore, Taiwan, and the United Kingdom.

The DHS Secretary determined that visitors from China do provide a significant economic benefit to CNMI, with 5,019 visitors arriving to CNMI (10% of all visitors) spending $38 million per year ($967 per visitor). These figures count only CNMI, not Guam. However, the Secretary decided to exclude China from the visa waiver program:

At this time, however, due to political, security, and law enforcement concerns, including high nonimmigrant visa refusal rates and concerns with cooperation regarding the repatriation of citizens, subjects, nationals and residents of the country subject to a final order of removal, nationals of the PRC and Russia are not eligible to participate in the Guam-CNMI Visa Waiver Program when the program is implemented.

After additional layered security measures, which may include, but are not limited to, electronic travel authorization to screen and approve potential visitors prior to arrival in Guam and the CNMI, and other border security infrastructure, DHS will make a determination as to whether nationals of the PRC and Russia can participate in the Guam-CNMI Visa Waiver Program.

It seems to me that for China to be considered a “normal” country eligible to participate in U.S. immigration programs like this and the H-2B temporary worker program, key goals will be that China must provide further cooperation in accepting repatriation of its citizens ordered deported from the U.S., and the rate of nonimmigrant visa refusals will need to continue to drop. As of FY 2008, the adjusted B (visitor) visa refusal rate for Chinese was 18.2%.

Guam’s tourist industry had been optimistic that China would be allowed to participate in the visa waiver program. And Guam’s governor, Felix Camacho, remains cautiously optimistic that China can participate in the future.

Previously, Chinese were not included in Guam’s visa waiver program but were allowed into CNMI under the visitor entry permit program that existed before U.S. immigration laws became applicable under a 2008 law.

U.S. Immigration and Customs Enforcement has released information about average bonds for noncitizens detained at ICE field offices. Los Angeles sets the lowest average bonds, while New York’s average is the highest. What the table doesn’t show is the odds of being detained in each office’s district. For example, according to anecdotal evidence, Los Angeles has a rate of detention.

Average Bonds at ICE Offices - Free Legal Forms

Five former U.S. ambassadors to China appeared together in a program for the first time on December 9, 2008. The program featured ambassadors Winston Lord (1985-89), James Lilley (1989-91), J. Stapleton Roy (1991-95), James R. Sasser (1996-99), and Joseph Prueher (1999-2001). In an exchange moderated by National Committee president Stephen Orlins, the ambassadors candidly reflected on the challenges, excitement, crises and achievements of their tenures, and shared insights on the future of U.S.-China relations.

Winston Lord: As special assistant to the National Security Advisor, Winston Lord accompanied Henry Kissinger on his secret visit to China in 1971 and President Nixon on his historic opening in 1972, as well as subsequent trips by President Ford and Dr. Kissinger. From 1985 to 1989 he served as ambassador to Beijing under Presidents Reagan and Bush. From 1993-1997 he was Assistant Secretary of State in charge of all East Asian policy, including China, under President Clinton. Lord’s other key government assignments were in the State Department as the director of Policy Planning (1973-1977) and in the Defense and State Departments in the 1960’s. He currently serves as Chairman Emeritus of the International Rescue Committee, the largest non-sectarian organization that both helps refugees abroad and resettles them in the United States.

James Lilley: Lilley was born in Qingdao, China in 1928, where his father was working for Standard Oil. He remained in China until 1940. Lilley was in the CIA until 1975, serving in Japan, Taiwan, Hong Kong, Laos, Cambodia, Philippines, Thailand and Beijing and as the national intelligence officer for China (1975-78). He then changed careers to work for Hunt Oil (1978-80) and United Technologies (1979-80). He served on the National Security Council’s East Asia staff (1981-82) before becoming the director of the American Institute in Taiwan (1982-84). He worked for Otis Elevator (1984-85) and then became the deputy assistant secretary of state for East Asia (1985-86).He was the U. S. ambassador to Korea (1986-89) and to China (1989-91), and assistant secretary of defense for international security affairs (1991-93). From 1993 to 2006, he worked at the American Enterprise Institute, where he edited six books on the Chinese military. In 2004 he wrote China Hands, a reflection on his life and career.

J. Stapleton Roy: Roy retired from the Foreign Service in January 2001 after a career spanning 45 years wth the U.S. Department of State. A fluent Chinese speaker, Ambassador Roy spent much of his career in East Asia, where his assignments included Bangkok (twice), Hong Kong, Taipei, Beijing (twice), Singapore, and Jakarta. He also specialized in Soviet affairs and served in Moscow at the height of the Cold War. Mr. Roy rose to become a three-time ambassador, serving as the top U.S. envoy in Singapore (1984-86), the People’s Republic of China (1991-95), and Indonesia (1996-99). In 1996, he was promoted to the rank of Career Ambassador, the highest rank in the Foreign Service. Ambassador Roy’s final post with the State Department was as assistant secretary for Intelligence and Research. In September 2008, he joined the Woodrow Wilson International Center for Scholars as director of the Kissinger Institute on China and the United States. He continues in his position as senior adviser to Kissinger Associates, Inc., which he joined in January 2001. Ambassador Roy was born in Nanjing, China of American missionary parents.

James R. Sasser: Sasser practiced law in Nashville until elected to the United States Senate in 1976, where he served for 18 years. Upon leaving the Senate he became a fellow at the Kennedy School at Harvard University, which ended with his appointment as ambassador to the People’s Republic of China in 1996. He served in that capacity for almost four years, playing a pivotal role in stabilizing Sino-American relations and traveling with President Jiang Zemin on his historic State visit to the United States in 1997. Sasser is currently a senior advisor to the FedEx Corporation and a senior counselor to APCO Worldwide in Washington, DC. He has served as a consultant to other U.S. corporation doing business in China, including the Ford Motor Company, the former Unocal Corporation and Brown-Forman Corporation.

Joseph Prueher: Prueher is a consulting professor at Stanford University’s Institute of International Studies and senior advisor on The Preventive Defense Project. He served as ambassador to the People’s Republic of China from 1999 to 2001 after completing thirty-five years in the United States navy. His last command was Commander-in-Chief of the U.S. Pacific Command. Prior to that, he served as commandant at the U.S. Naval Academy at Annapolis.