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More than 30,000 civilians from northeastern Myanmar’s ethnically-Chinese Kokang region streamed into China’s Yunnan province to escape four days of fighting between the military and a local militia that ended August 29 . Some sought shelter in tents set up by the Chinese. Others apparently sought shelter with friends and relatives.

On August 31, some 4,000 Kokang were transported to the border by the Chinese government so they could return home. Others expressed a fear of returning. But since then, the Chinese government has begun taking down the tents and has imposed an information blackout on the border situation.

This raises important questions about whether it is safe to return and about whether the Chinese government is using the information blackout to obscure its failure to meeting it obligations to protect refugees under the 1951 Convention Relating to the Status of Refugees.

Some Refugees Fear Returning

Myanmar (also known as Burma) has been under military rule since 1962. In the Kokang area of Shan State, there had been a long-term ceasefire between the military and a local militia, the Myanmar National Democratic Alliance Army (MNDAA). In preparation for 2010 elections, the military is try to co-opt local ethnical militias. The military managed to convince one MNDAA faction to join the government troops, but fighting broke out between the military and another faction. Some analysts believe that the military took on the MNDAA first because it is relatively weak, and that the fighting will intensify as the military takes on other ethnic militias, including the United Wa State Army.

Rows of blue tents have been set up in Nansan, nestled in rugged and lush mountains in China’s Yunnan provincne, to accommodate the refugees. China has provided them with food and medical care.

Xinhua News Agency, citing Yunnan provincial police chief Meng Sutie, said more than 13,000 refugees were receiving government aid, while the rest were staying with friends and relatives.

Some of the Kokang are anxious to return home, especially merchants who fear their shops may be looted in their absence. “Of course I’m scared (to go back), but there’s no choice,” said Liu Shurong, one of the refugees about to return to Kokang. “If you don’t go back to guard your shop, it will be looted. Many of my neighbours have lost all their belongings.”

But others interviewed in the town of Nansan, on the Chinese side of the border, said they remain unconvinced by the military junta’s claims that calm had been restored in the region.

“’They were shooting ordinary people. I saw it myself. We don’t believe what they say. We are afraid to go back,” said Li Jun, a 24-year-old farmer, to an Agence France-Presse Reporter. “They say they will not shoot again but they will shoot.”

The refugee camps are off limits to foreign reporters and nongovernmental organizations.

China’s Treaty Obligations

A refugee is legally defined in the Refugee Convention as a person who has fled his or her country because of actual persecution or “owing to well-founded fear of being persecuted” is unwilling to return to his or her country. The actual or threatened persecution must be on the because of an enumerated ground–race, religion, nationality, membership of a particular social group or political opinion.”

China is one of the few countries in Asia to have signed the Refugee Convention. Parties to the Convention have an obligation to abide by the principle of “non-refoulement,” which means that “No contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened.

In practice, a country that has signed the treaty is supposed to make individual determinations regarding whether a person unwilling to return to his or her country is a refugee and is supposed to give the United Nations High Commissioner for Refugees (UNHCR) access to the asylum-seekers.

However, the Chinese government has no domestic legislation or procedures relating to refugee status determinations. And the Chinese government has not responded to UNHCR’s requests for access to the persons fleeing Myanmar, according to Kitty McKinsey, regional spokeswoman for UNHCR.

“The Myanmar government has told us through diplomatic channels to send them back,” Yunnan provincial government spokesman Li Hui told reporters.

In the past, China has drawn criticism from human-rights advocates for its practice of rounding up North Korean refugees in the northeast and sending them back, where they are likely to face prison terms or be sent to harsh labor camps as punishment. China denies UNHCR and nongovernmental organizations access to its northeastern border with North Korea.

China’s Political Concerns

China’s most important concern in the region is stability.

China has made major investments in Myanmar to facilitate export of natural resources, including oil and gas, to China. This makes China one of the few allies of Myanmar’s isolated junta, which is under U.S. and EU sanctions.

Refugees are a threat to stability. Over two million Burmese, many of them ethnic minorities, have fled for economic and political reasons to Thailand, Bangladesh, India, China, Indonesia, and Malaysia to seek work and asylum in recent years.

Stability is also needed to stem the flow of drugs from Myanmar. Kokang is on the fringe of the drug-producing Golden Triangle region where Myanmar, Thailand and Laos meet. Several ethnic militias there have used the trade in heroin and amphetamines to finance their operations, with much of their product smuggled into China.

Stability is especially important in the run-up to the 60^th anniversary of the founding of the PRC. Analysts said that the Chinese government had asked Myanmar’s generals to refrain from initiating military campaigns before the celebration.

While these concerns need to be addressed, China can best promote stability by living up to its international obligations under the Refugee Convention and by applying diplomatic pressure on its neighbors like North Korea and Myanmar to live up to minimum international standards of conduct.

Links

Burmese Refugees in China Afraid to Go Home, Agence France-Presse (Aug. 31, 2009), http://www.thestandard.com.hk/breaking_news_detail.asp?id=16307&icid=2&d_str=20090831

Thomas Fuller, Myanmar Army routs Chinese Rebels in North, New York Times (Aug. 30, 2009), http://www.nytimes.com/2009/08/31/world/asia/31iht-myanmar.html?_r=2

Sky Canaves, China Copes with Influx of Myanmar Refugees, Wall Street Journal (Aug. 29, 2009), http://online.wsj.com/article/SB125147825218167281.html

Ng Han Guan, Myanmar Refugees Leave China as Battles Ending, Associated Press (Aug. 31, 2009), http://www.google.com/hostednews/ap/article/ALeqM5h3erz_xCOMgFXnPSD0FMVpWMWikgD9ADOSF80

China: Refugees Reported Fleeing Fresh Fighting in Myanmar, UNHCR Briefing Notes (Aug. 28, 2009), http://www.unhcr.org/4a97cb0e9.html

Chris Buckley, Myanmar Refugees Begin Warily Returning from China (Aug. 31, 2009), http://www.swissinfo.ch/eng/news/international/Myanmar_refugees_wary_of_returning_from_China.html?siteSect=143&sid=11146677&cKey=1251694390000&ty=ti

Michael Wines, China Silent on Burmese Refugees, New York Times (Sept. 1, 2009), http://www.nytimes.com/2009/09/02/world/asia/02myanmar.html?_r=1

Integrated Regional Information Networks, Myanmar: UN seeks access to Burmese refugees in southern China (Sept. 1, 2009), http://alertnet.org/thenews/newsdesk/IRIN/65d87d7075e5cf9d368f65b5358b2b95.htm

Michale Wines, Beijing Limits Information on Burmese Refugees Remaining in China, N.Y Times (Sept. 1, 2009), http://www.nytimes.com/2009/09/02/world/asia/02myanmar.html?_r=1

For all those engineers and scientists with peeves about Visas Mantis Security Advisory Opinions (SAOs) and other U.S. visa policies, here’s a blast from the past.

Albert Einstein is the world’s most famous theoretical physicist. He entered the U.S. in 1933 and chose to settle here after the Nazi party came to power in his native Germany. He voiced his concerns about U.S. visa policy in the October 1952 edition of the Bulletin of the Atomic Scientists:

The free unhampered exchange of ideas and scientific conclusions is necessary for the sound development of science, as it is in all spheres of cultural life. In my opinion there can be no doubt that the intervention of political authorities of this country in the free exchange of knowledge between individuals has already had significantly damaging effects. First of all, all damage is to be seen in the field of scientific work proper, and after a while, it will become evident in technology and industrial production.

The intrusion of the political authorities into the scientific life of our country is especially evident in the obstruction of the travels of American scientists and scholars abroad and of foreign scientists seeking to come to this country. Such petty behavior on the part of a powerful country is only peripheral symptoms of an ailment which has deeper roots.

Interference, with the freedom of the oral and written communication of scientific results, the widespread attitude of political distrust which is supported by an immense police organization, the timidity and the anxiety of individuals to avoid everything which might cause suspicion and which could threaten their economic position–all there are only symptoms, even though they reveal more clearly the threatening character of the illness.

The real ailment, however, seems to me to lie in the attitude which was created by the world war and which dominated all of or actions, namely, the belief that we must in peacetime so organize our whole life and work that in the event of war we would be sure of victory. This attitude gives rise to the belief that one’s freedom and indeed one’s existence are threatened by powerful enemies.

This attitude explains all of the unpleasant facts which we have designated above as symptoms. It must, if it does not rectify itself, lead to war and to very far reaching destruction. It finds its expression in the budget of the United States.

Only if we overcome this obsession can we really turn our attention in a reasonable way to the real political problem which is, “How can we contribute to make the life of man on this diminishing earth more secure and more tolerable?”

It will be impossible to cure ourselves of the symptoms we have mentioned and many others if we do not overcome the deeper ailment which is affecting us.

I believe that this nation is the last hope of Western civilization and if this oasis of the world shall be overrun, perverted, contaminated or destroyed, then the last flickering light of humanity will be extinguished. I take no issue with those who would praise the contributions which have been made to our society by people of many races, of varied creeds and colors. America is indeed a joining together of many streams which go to form a mighty river which we call the American way. However, we have in the United States today hard-core, indigestible blocs which have not become integrated into the American way of life, but which, on the contrary are its deadly enemies. Today, as never before, untold millions are storming our gates for admission and those gates are cracking under the strain. The solution of the problems of Europe and Asia will not come through a transplanting of those problems en masse to the United States…. I do not intend to become prophetic, but if the enemies of this legislation succeed in riddling it to pieces, or in amending it beyond recognition, they will have contributed more to promote this nation’s downfall than any other group since we achieved our independence as a nation.

The Obama Administration is busily negotiating bilateral investment treaties (BITs) with China, India, Russia, and Vietnam. BITs aim to attract foreign direct investment (FDI) to the United States and protect American investors’ rights abroad. It’s disappointing, then, that the Administration seems to omit from the BITs a provision for investor visas, despite the fact that previous administrations have entered into 70 treaties—40 of them BITs entered into since the 1980s—with investor visa provisions. If foreign investors can’t get investor (E-2) visas to come to the U.S., how will they invest here? If American investors are denied visas by foreign countries, how will they manage their investments overseas?

1. Form I-9, Employment Eligibility Verification

• Every U.S. employer must complete a Form I-9, Employment Eligibility Verification, each time a person is hired to perform labor or services in the U.S. in return for wages or remuneration.
• An employer must make I-9s available for inspection by the Department of Homeland Security, Department of Justice, and Department of Labor
• An employer may be liable for civil money penalties, or even criminal penalties, for failure to properly complete I-9s.
• Our firm advises companies on best practices to ensure compliance with I-9 rules. We perform internal audits of employers’ records to identify compliance issues and provide training to HR departments.

2. Immigration-Related Discrimination

• Employers are prohibited from discriminating against employees on the basis of national origin or citizenship status.
• Employers may not request identity or employment eligibility documents other than those listed on the I-9.
• Employers may not refuse to accept identity or employment eligibility documents that appear facially valid.

3. Sponsoring Nonimmigrant Work Visas

If an employer sponsors nonimmigrant work visas, the company needs to be familiar with its resulting obligations. Here are just a few examples:

• B-1 visitor for business: An employer needs to be familiar with the scope of activities that are allowed in B-1 status. While meetings, trainings, and conferences are allowable, regular “work” is not. The employee must continue to be employed and paid by the company abroad (with the exception of reimbursement for expenses, which may be paid by the U.S. employer).
• H-1B temporary workers in specialty occupations: The H-1B is a flexible visa for hiring professional. However, the employer must taken on several obligations, including but not limited to: paying the prevailing wage for the occupation in the geographic area; maintaining a file with information about the employment, available for public inspection; notifying USCIS if an H-1B worker is laid off; amending the H-1B petition if there are material changes in employment terms and conditions such as a decrease in hours or salary. Our law firm is available to audit and advise on compliance with these requirements.
• J-1 exchange visitors: A company may be able to obtain visas for foreign trainees, sponsored by a third-party entity approved by the State Department. A company that frequently uses J-1 visas should consider applying for its own approval from the State Department to sponsor trainees, researchers, and others.
• L-1 intracompany transferees: Companies that are frequent users of L-1 visas should consider filing a “blanket petition,” which eliminates the need for each individual to file an L-1 petition with USCIS.

A company that sponsors nonimmigrant visas also needs to be familiar with international travel issues. Every time that an employee with a nonimmigrant visa travels abroad, there is a risk of refusal of a new visa or re-admission to the U.S. There is also a risk of delayed return due to appointment scheduling and security checks. Our firm can evaluate these risks and advise on how to ameliorate them.

4. Sponsoring a Green Card

Most non-managerial employees are required to go through a process called a labor certification application as the first step in becoming a permanent resident. This process requires recruitment efforts by the employer and proof that no qualified U.S. worker is available to fill the position.

5. Mergers & Acquisitions

If your company is involved in a merger or acquisition, the company should perform a due diligence investigation that includes analysis of the current immigration status of the employees, a determination of the impact of the corporate change on their status, and filing of any necessary applications to maintain employees’ status.

6. Corporate Immigration Policy

A company with ongoing immigration law concerns should create a written immigration policy. Some topics to cover include: under what circumstances the company will sponsor a nonimmigrant visa and permanent resident status, engage outside counsel, and pay fees related to the visa process; under what circumstances use of the B-1 visa or visa waiver is appropriate; and employees’ obligations related to I-9s.

Add language consistent with your immigration policy to your job application forms, offer letters, employment contracts, internal job transfer requests, and termination packets.

7. Hiring an Immigration Lawyer

It is prudent for an employer to utilize the services of a U.S. immigration lawyer experienced in dealing with business immigration issues. The lawyer can help an employer navigate through visa application processes and comply with its immigration-related obligations.