Applying for a B1/B2 (Visitor) Visa as the Spouse of a U.S. Expat

I’ve been asked several times today about how the spouse of a U.S. citizen expat can apply for a B1/B2 (visitor for business or pleasure) visa. The question typically goes something like this:

I am a U.S. citizen. I have lived in China for 5 years. My wife has been denied a U.S. tourist visa twice, once before and once after we married. We rent an apartment here, she has her own business, and I am employed as an engineer for Ford. We don’t want to apply for a green card because we plan to continue to live in China for the foreseeable future. We just want to visit the U.S. For the first visa application, I wanted to introduce my then fiancée to my parents. (My father has since passed away). For the second visa application, I wanted to bring my wife to Boston to attend my brother’s wedding. Is there anything you can do to help?

Continue reading “Applying for a B1/B2 (Visitor) Visa as the Spouse of a U.S. Expat”

More Chinese Student Visa Applicants Will Be Subject to Security-Related Delays

A State Department official has spoken on background to the Associated Press, saying that more Chinese applying for F-1 visas as graduate students in fields related to science and technology will need “special clearance from multiple U.S. agencies” and that such clearances are “expected to take months for each visa application.” Other nonimmigrant visa applicants seeking to visit or work in the U.S. who have backgrounds in science or technology may be subject to the same security checks. Continue reading “More Chinese Student Visa Applicants Will Be Subject to Security-Related Delays”

AmCham China Addresses U.S. Visa Policy in 2018 White Paper

2018 is a historic year for American companies operating in China: as China marks its 40th anniversary of economic reform and opening, AmCham China is issuing the 20th edition of its American Business in China White Paper. This paper is a comprehensive assessment of the operating environment for foreign companies in China.

It was a pleasure to participate in drafting the chapter on U.S. visa policy, which discusses the following topics:

  • Controlling nonimmigrant visa appointment waiting times in China
  • USCIS international entrepreneur rule
  • Subjecting EVUS registrants to questions about social media use
  • Inadequate annual H-1B visa cap
  • Barriers to permanent residents taking assignments abroad
  • Need for a Global Entry enrollment center in Beijing

To read the Visa Policy chapter, see here. To read the entire White Paper, see here.

Students and Exchange Visitors Face Harsh New “Unlawful Presence” Rule from Trump Administration

The Trump Administration intends to crack down on F-1 students and J-1 exchange visitors who violate the terms of their status. Under a new policy, effective August 9, 2018, even a minor, unintentional violation could trigger “unlawful presence.” Remaining in the U.S. for too long after such a violation could result in being barred from returning to the U.S. for 3 or 10 years, depending on the circumstances. Students and exchange visitors need to learn what activities trigger unlawful presence and what remedial steps to take after a violation. Continue reading “Students and Exchange Visitors Face Harsh New “Unlawful Presence” Rule from Trump Administration”

LPR Living with a Citizen Spouse Employed Abroad by an American Company: Any Risk of Abandonment?

Karen writes to ask:

I am a U.S. green card holder, but I live in Asia with my husband, who is a U.S. citizen employed here by an American company. Is there any risk that I may unintentionally lose my LPR status because I am spending too much time outside the U.S.?

Our law firm is often asked by lawful permanent residents (LPRs) about how to preserve their status while abroad for a variety of reasons, such as work, study, caring for an ill relative, etc. General information about this can be found here: Green Card Holders Staying Abroad Over 6 Months Risk Abandonment.

In cases similar to yours, Our firm has argued successfully to U.S. Customs and Border Protection (CBP) at ports of entry and to Immigration Judges in deportation proceedings that even an indefinite stay abroad does not result in abandonment if for purposes of accompanying a U.S. citizen spouse employed abroad by an American company.

Consider an analogous situation. If the LPR (not the U.S. citizen spouse) were employed overseas by a U.S. company, even indefinite employment abroad may be considered “temporary” and thus not cause “abandonment.” Matter of Kane, 15 I. & N. Dec. 258, 262-263 (BIA 1975), citing Matter of Wu, 14 I. & N. Dec. 290 (RC 1973), and Matter of Manion, 11 I. & N. Dec. 261 (DD 1965). The rationale is related to INA § 316(b), which provides that certain LPRs employed abroad for U.S. companies can file a Form N-470, Application to Preserve Residence for Naturalization Purposes, to seek an exemption from the continuous residence requirement for naturalization:

one purpose of section 316(b) was to benefit an American firm engaged in developing international trade by permitting its lawful permanent resident aliens to retain the continuity of their residence for naturalization purposes while employed abroad by such firm. It is inconsistent with the objectives of section 316(b) to hold that an alien who has been found eligible for the benefits thereof has lost his status as a permanent resident solely because of his extended absences abroad in the employment of the American firm.

Matter of Wu, 14 I. & N. Dec. 290, 293 (RC 1973).

The facts of Matter of Manion are striking. At the time he was granted LPR status, he had been employed abroad for a U.S. corporation for about 15 years. Just 4 days after obtaining LPR status, he applied for and was granted a reentry permit to continue that work abroad. The district director held that it had been error to deny him a new reentry permit five years later because his work abroad was “temporary” even though it was indefinite. (He “hopes” to return to the U.S. when “it is possible.”).

The facts of Matter of Wu are also illustrative. He had worked abroad for about 4 years after becoming an LPR, and he had no timeline to return to the U.S. except that it would be “upon termination of his assignment abroad.” His work involved the development of foreign trade and commerce of the U.S. Notably, he had an approved Form N-470, Application to Preserve Residence for Naturalization Purposes.

In your case, Karen, the difference from the above cases is that it’s not you, the LPR, but instead your U.S. citizen husband working abroad for the U.S. company, and you are abroad to accompany him. While there does not appear to be any direct authority for this proposition, it is nonetheless clear. The principle is similar to the above principle that an LPR whose presence abroad could qualify to preserve residence for citizenship under INA § 316(b) has also not abandoned LPR status. See Legal Opinion of INS General Counsel, HQ 319-C (Feb. 23, 1993). There is a separate statutory provision, INA § 319(b), providing that the spouse of a U.S. citizen employed abroad by a U.S. company is wholly exempted from the usual continuous residence and physical presence requirements for naturalization. The policy behind this “expeditious naturalization” statute is to benefit Americans firms engaged in developing international trade by allowing them to employ U.S. citizens abroad without the need for their LPR spouses to make the tough choice between either remaining in the U.S. to meet the residence requirement for citizenship or accompanying the U.S. citizen abroad. Just as in the above-cited cases, it would be inconsistent with the statute to hold that a wife eligible for “expeditious naturalization” on the basis of her husband’s employment for a U.S. company abroad has nonetheless abandoned LPR status.

So my feeling is if you would meet the requirements for expeditious naturalization under 319(b) then you should not be at risk of abandoning LPR status. For more on expeditious naturalization, see our Guide to Expeditious Naturalization.

Of course, when entering the U.S., you need to be ready to prove this. Feel free to schedule a consultation to discuss whether this line of reasoning applies in your case. Our firm could help you gather the proper evidence to show to CBP, provide you with a supporting legal brief, and help you prepare to answer the CBP officer’s questions in a way that is truthful and helpful to avoid abandonment.

 

 

 

AP: Potential Visa Sanctions on Chinese Officials Over Xinjiang Abuses

 

Gerry Shih reports for the AP today that the U.S. government may pursue sanctions on Chinese officials involved in human rights abuses in the western region of Xinjiang. Shih has recently reported elsewhere on a sweeping security crackdown in the region. 

Acting Deputy Assistant Secretary of State Laura Stone said Wednesday that the U.S. was deeply concerned about China’s detention of at least “tens of thousands” of ethnic Uighurs and other Muslims and could take action under the 2016 Global Magnitsky Act.

Beijing has defended its crackdown as a “People’s War on Terror” and a necessary move to purge separatist and religious extremist elements from Xinjiang, a vast region with more than 10 million Muslims. But an extrajudicial detention program has swept up many people, including relatives of American citizens, on ostensible offenses ranging from accessing foreign websites to contacting overseas relatives.

Speaking to reporters in Beijing, Stone said the U.S. was particularly concerned about the detained family members of six journalists — four U.S. citizens and two U.S. permanent residents who have reported on Xinjiang — working for Washington D.C.-based Radio Free Asia.

“The information we have, including about detention centers, paints a disturbing picture,” Stone said. “We will continue to raise our concerns with the Chinese government and call for legal due process in the detention of any citizens.”

According to Shih, Sen. Marco Rubio of Florida and Rep. Christopher H. Smith of New Jersey, Republican leaders of the Congressional-Executive Commission on China, have asked the U.S. ambassador to Beijing, Terry Branstad, to visit the region and collect information on Xinjiang officials responsible for the mass detention policy.

The Global Magnitsky Human Rights Accountability Act allows the U.S. government to place travel and financial restrictions on individuals anywhere in the world given credible proof of their role in human rights violations or corruption. In Dec. 2017, President Trump enforced the Act for the first time by designating 52 people and entities as subject to sanctions. This included a Chinese police official who oversaw the Beijing detention center that held Cao Shunli, a human rights activist who died in custody. Human Rights Watch applauded Trump’s action.

The law is named after whistleblower Sergei Magnitsky, who was imprisoned and murdered in 2009 by Russian authorities after exposing a large-scale fraud.

The President may lift the application of sanctions under the Act upon a determination either that the person did not engage in the activity for which sanctions were imposed or that the person has already been sufficiently punished and is unlikely to engage again in such activity.

Choosing Between U.S. and Chinese Citizenship: Pros and Cons

Are you in a position where you need to choose between U.S. and Chinese citizenship? For example, are you a U.S. green card holder from China considering applying for naturalization in the U.S.? Or are you a person who automatically acquired both Chinese and U.S. citizenship at birth but is now considering renouncing Chinese citizenship? The below table lists some specific factors to consider. Continue reading “Choosing Between U.S. and Chinese Citizenship: Pros and Cons”

Americans Scrambling to Submit Immigrant Petitions for Relatives

Facing a proposed law that slashes family-based immigration, Americans are scrambling to law firms to petition for visas for loved ones abroad to come here. NPR reports that President Trump wants Congress to limit the number of family members who Americans can sponsor to join them in the United States. The proposal has caused panic in some communities. Continue reading “Americans Scrambling to Submit Immigrant Petitions for Relatives”

Is the Chinese Students and Scholars Association an “Affiliate” of the Communist Party? Would Joining Make Me Ineligible for a Green Card?

A reader asks:

I am a student at the University of … with an F-1 visa. I’m a senior. I will be applying for optional practical training (OPT) work authorization. Hope to find an employer to sponsor me for an H-1B visa and a green card. I heard that a green card application can be denied if the applicant has belonged to an organization “affiliated with” the Communist Party.  If that’s true, could membership in the Chinese Students and Scholars Association be a problem?

Continue reading “Is the Chinese Students and Scholars Association an “Affiliate” of the Communist Party? Would Joining Make Me Ineligible for a Green Card?”

National Vetting Center Established by Trump Administration

A new National Vetting Center is being established pursuant to National Security Presidential Memorandum 9, signed by President Trump on February 6. The Center will coordinate the way agencies use biographic, biometric, and other data used to vet applicants for visas, admission to the United States, and immigration benefits, and in enforcement and removal (deportation) actions. The Center will be housed within the Department of Homeland Security (DHS). Continue reading “National Vetting Center Established by Trump Administration”

U.S. Consulate in Shenyang on Pro Forma Visas for Dual Nationals

For a child born in China with dual U.S. and China nationality, there are various options for documents allowing departure from the country. The trick is that you need to show the immigration inspector in the airport both a travel document issued by the Chinese government and a visa or other document to enter your next destination. Continue reading “U.S. Consulate in Shenyang on Pro Forma Visas for Dual Nationals”

Internship Opportunity: U.S. Immigration Law (Beijing, Shenyang, or Shanghai)

job_openingWe are currently recruiting for internship positions for Summer and Fall 2018

Our law firm has an internship opportunity in the Beijing, Shenyang, or Shanghai office. The intern will assist our lawyers and staff with projects related to U.S. visa, permanent residence, and nationality law. Continue reading “Internship Opportunity: U.S. Immigration Law (Beijing, Shenyang, or Shanghai)”

“Alias Certificates” Required from Immigrant Visa Applicants at the U.S. Consulate in Guangzhou

The latest Immigrant Visa Instructions published by the U.S. Consulate in Guangzhou on Nov. 24, 2017, require that an applicant who has “ever used another name or alias on legal documentation or for other official purpose must provide a certified alias certificate” (别名证明文件). Continue reading ““Alias Certificates” Required from Immigrant Visa Applicants at the U.S. Consulate in Guangzhou”