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.
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: ï»¿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. Lordâ€™s other key government assignments were in the State Department as the director of PolicyÂ Planning (1973-1977) and in the Defense and State Departments in the 1960â€™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.
ï»¿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 Councilâ€™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 Peopleâ€™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 Royâ€™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.
ï»¿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 Peopleâ€™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.
ï»¿Joseph Prueher: Prueher is a consulting professor at Stanford Universityâ€™s Institute of International Studies and senior advisor on The Preventive Defense Project. He served as ambassador to the Peopleâ€™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.
Eilene Zimmerman, Hiring Window Open at the Foreign Service, New York Times (Dec. 20, 2008):
Applying for a job with the State Department involves written and oral examinations. Those who pass the oral exam become conditional officers and receive a ranking score based on oral-exam performance and language skills. The higher the rank, the sooner they will be assigned.
Of the 12,000 to 15,000 people who register annually for the written exam, about 450 officers are hired, said Frank J. Coulter, management officer with the Foreign Service and a member of the State Department’s board of examiners….
New Foreign Service officers at the State Department choose one of five career tracks: consular affairs, economic affairs, management affairs, political affairs or public diplomacy. No matter the track, all entry-level officers spend their first several years working in a consulate, interviewing applicants for United States visas and working with American citizens who need their help.
The State Department also hires Foreign Service specialists, who provide technical, security and administrative support overseas or in Washington. Specialists must pass an oral assessment but not a written exam, and start in a specialty like medicine, information technology or law enforcement, Mr. Coulter said. All newly hired officers and specialists are trained at the Foreign Service Institute in Washington.
Each of the first two postings overseas last two years; after that, it is generally a three-year posting in each country. One-year hardship postings–in a region too dangerous to allow an officer’s spouse and children to accompany him or her–are required at least twice in the course of a career. After two assignments, Foreign Service personnel can bid on postings requesting particular countries or Washington but everyone is expected to serve in a variety of assignments.
Everybody loves a love story – everybody it seems, except the U.S. Citizenship and Immigration Services. In our post-9/11 world, immigration has become increasingly tough on, of all groups, widows.
A foreigner who marries a U.S. citizen is entitled to become a U.S. resident. But as CBS’ 60 Minutes reports, USCIS wants to deport several hundred widows who had been married to American citizens when the Americans died.
USCIS claims basically that a widow is not a wife, and that if the widow did not complete the process to become a U.S. resident while her husband was alive, she cannot remain in the country. This is the subject of ongoing litigation.
In academic year 2007/08, there were 81,127 students from China studying in the United States, up 19.8% from the previous year. That makes China the second-leading place of origin for students coming to the United States, following India (94,563). These figures were released in a study called Open Doors: Report on International Educational Exchange, published annually by the Institute of International Education with support from the U.S. Department of State.
In my opinion, the record numbers are in part attributable to aggressive recruiting by U.S. schools in China as well as China’s booming economy. Also, the numbers mark a rebound in Chinese students confidence in the U.S. visa system. AfterÂ 9/11, Chinese students were disappointed by a high rate of visa denials and long security checks that delayed visa issuance by months for some.
According to the report, the majority of Chinese students study at the graduate level: 20.3% undergraduate, 65.4% graduate students, 4.8% other, 9.5% optional practical training.
China sent no students to the U.S. from the 1950s until 1974/75. In the 1980s, numbers of Chinese students grew dramatically, and in 1988/89, China displaced Taiwan as the leading sender. China was the leading place of origin from 1988/89 until it was displaced by Japan in 1994/95. In 1998/99, China overtook Japan as the leading sender, and remained in the number one position until being overtaken by India in 2001/02, and has remained in second place since.
Year: # of Students From China (% of Total Foreign Students in U.S.):
2007/08: 81,127 (13%)
2006/07: 67,723 (11.6%)
2005/06: 62,582 (11.1%)
2004/05: 62,523 (11.1%)
2003/04: 61,765 (10.8%)
2002/03: 64,757 (11.0%)
2001/02: 63,211 (10.8%)
2000/01: 59,939 (10.9%)
1999/00: 54,466 (10.6%)
1998/99: 51,001 (10.4%)
1997/98: 46,958 (9.8%)
1996/97: 42,503 (7.8%)
1995/96: 39,613 (8.7%)
Following Barack Obamaâ€™s landslide win in the presidential election, headlines in many newspapers read like this one from the New York Times:Â Election Unleashes a Flood of Hope Worldwide. It strikes me that part of the optimism is due to Obamaâ€™s compelling personal story as the son of an African immigrant as well as his own experiences living abroad.
His father, Barack Obama, Sr., traveled from Kenya on scholarship to study economics at the University of Hawaii. There, he met and married Ann Dunham, who gave birth to Barack Obama, Jr., in 1961.
Obama is not the first president to be the son of an immigrant.Â According toÂ Wiki infoÂ (hat tip toÂ ILW.com), five former presidents (Jefferson, Buchanan, Arthur, Wilson, Hoover) had one immigrant parent each, and one president (Jackson) had two immigrant parents. Still, being the son of an African immigrant is different. Nelson Mandela,Â South Africaâ€™s former president, said in a letter to Mr. Obama: “Your victory has demonstrated that no person anywhere in the world should not dare to dream of wanting to change the world for a better place.”
Also, Obama spent several years (1967-71) in Indonesia with his mother and Indonesian stepfather. This was a time of Cold War chaos in Indonesia. Newsweek editor John Meacham believes Obama’s experience of “what American power feels like on the receiving end as opposed to the giving end” may help him think two steps ahead about the impact of U.S. actions abroad.
Obama wrote about his personal storyÂ in his books, Dreams of My Father and Audacity of Hope. He campaigned on his personal story. The next several years will show whether the current wave of global optimism is justified.
In July, I blogged about a Pew Research Center survey showing that Australia is the most popular destination for Chinese seeking to emigrate. Canada was ranked #2 and the U.S. #3. I theorized that the limited interest in emigrating to the U.S. is due to America’s current economic woes and plummeting international popularity because of the Iraq War.
Today, an OpEd in the Washington Post by Robert Kagan of the Carnegie Endowment for International Peace argues that we’re not witnessing the decline of the U.S.:
- The U.S. has a 21% share of the global economy, compared with 23% in 1990 and 22% in 1980. Although the U.S. is suffering economically, the world’s other major economies are too, and U.S. may be the first to come out of rescession.
- While America’s image is certainly damaged, the scale of damage doesn’t compare to the 1960s and 1970s, with the Vietnam War, the Watts riots, the My Lai massacre, Watergate, and the assassinations of John F. Kennedy, Martin Luther King, and Bobby Kennedy.
- Even in the Middle East, there’s been no fundamental strategic realignment against the U.S. due to the Iraq War. Longtime allies remain allies.
It looks like the new U.S. Embassy in Beijing will open for consular services on Tuesday, October 28, 2008. The Embassy’s notice is here.
The new location is No. 55 An Jia Lou Road.Â The entrance for consular services, including American citizen services and the visa section, is located at the Embassy’s east gate at the intersection of Tian Ze Road and An Jia Lou Road, close to Ladiesâ€™ Street (NÃ¼ren Jie) and Laitai Flower Market.Â The nearest subway location is the Liangmaqiao stop on line #10.
H-1B Benefit Fraud & Compliance Assessment, a study published by U.S. Citizenship and Immigraton Services last month, finds that small companies are more likely to violate the rules related to H-1B temporary work visas. This finding is unsurprising because–as my clients constantly remind me–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.
Each year, 65,000 H-1B visas are made available to professionals with at least a bachelor’s degree to work to work for employers paying at least the “prevailing wage” for the job in the geographic area.Â For background about H-1B visas, see here.
USCIS’ study found fraud or technical violations in 20% of the 246 cases investigated. Technical violations included violations such as:
- The employer required the H-1B worker to pay the $750 or $1500 “ACWIA” filing fee, which by law cannot be passed on to the worker.
- The employer failed to pay at least the prevailing wage under U.S. Department of Labor rules.
- The H-1B worker was working in a geographic location not specified in the paperwork filed with the U.S. Department of Labor.
- The employer put the H-1B worker on unpaid leave (“benching”).
On Sept. 22, 2008, U.S. Citizenship and Immigration Services released a powerpoint presentation with updates on the EB-5 investor visa program for Fiscal Year 2008. Here are the highlights:
- 12 new EB-5 regional centers were approved.
- 1017 Forms I-526, Immigrant Petitions for Alien Entrepreneurs, were filed.
- 350 Forms I-829, Petitions by Entrepreneurs to Remove Conditions, were filed.
What does this mean? First, with more approved EB-5 regional centers, investors now have more choices for passive investments, meaning more options for EB-5 investments that don’t require investors to establish and manage their own businesses. Second, while EB-5 filings are up, it’s still hard to call the EB-5 program popular–only a fraction of the total 10,000 visas per year are being used.Â You can see the powerpoint presentationÂ here.
The U.S. State Department has announced it is searching for Philip Ming Wong, a fugitive who has been indicted for his role in a visa fraud scheme.
“Operation Shell Games” Targeted Brokers Who Supplied Chinese Citizens with False Documents and Fraudulent Visa ApplicationsÂ
United States Attorney Joseph P. Russoniello and Diplomatic Security Service (DSS) Special Agent In-Charge, Patrick Durkin announced that PHILIP MING WONG has been indicted for his role in a non-immigrant visa fraud scheme.
According to an indictment filed on September 9, 2008, PHILLIP MING WONG and his coconspirators are alleged to have operated three Bay Area companies, which existed mostly on paper and conducted no legitimate business from 1999 through 2001. PHILLIP MING WONG and his coconspirators are further alleged to have sold invitation letters from these three false or shell companies to 119 ordinary citizens of China for fees ranging up to $16,000 a piece. Lastly, it is alleged that these citizens then applied for non-immigrant visas at the American Embassy in China, using the false invitation letters and masquerading as Chinese business people doing commerce with the three false companies. In many of the 119 cases, the United States Embassy in China accepted the invitation letters sold by PHILLIP MING WONG and his co-conspirators, and issued non-immigrant visas to the Chinese citizens posing as business travelers.
PHILLIP MING WONG was indicted on one count of Conspiracy, in violation of 18 U.S.C. Â§ 371, eight counts of Visa Fraud, in violation of 18 U.S.C. Â§ 1546, six counts of Harboring Aliens for Financial Gain, in violation of 18 U.S.C. Â§ 1324, and one count of Money Laundering, in violation of 18 U.S.C. Â§ 1956. The maximum statutory penalty for these violations is five years imprisonment per count.
“Operation Shell Games” is yet another example of the Diplomatic Security Service’s vigilance in combating visa and passport fraud. We investigate multi-defendant criminal enterprises that broker in false visas, false immigration forms, and other false documents, to keep imposters and criminals out of the country,” Special Agent In-Charge Patrick Durkin of the Diplomatic Security Service, San Francisco Field Office stated.
PHILLIP MING WONG is considered a fugitive and is believed to be residing in Macao, the People’s Republic of China. Anyone with information about PHILLIP MING WONG’s whereabouts or any other false or fraudulent visa scheme is encouraged to contact DSS at (415) 705-1176.
Please note, an indictment contains only allegations against an individual and, as with all defendants, the defendants must be presumed innocent unless and until proven guilty.
Hat tip to the Experience Not Logic blog.
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 inÂ 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: Continue reading “Two Bites at the Apple? Filing Multiple Visa Petitions”
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.  What ever happened to chain of command? Continue reading “Administrative Appeals Office Ignores USCIS Policy on L-1B Specialized Knowledge”
Got a tip? Some aspects of U.S and China visa policy and practice are local and/or not made public by government agencies. If you have a tip, share it here.
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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.
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
According to the U.S. Embassy in Beijing, “[t]he average processing time for [security advisory opinion] clearances has increased to 6-7 weeks.” The increased processing time will apparently affect U.S. Consulates worldwide because it is due to a shortage of personnel in Washington, DC. Continue reading “Security Advisory Opinions Taking Longer”
Australia is the best destination for emigrants, according to a recent poll by the Pew Research Center of 3,200 adults in China.
The question posed was, “Suppose a young person who wanted to leave this country asked you to recommend where to go to lead a good life–what country would you recommend”? While there is no consensus, the most frequently cited countries are Australia (22%), Canada (17%), the United States (15%), France (8%), and Britain (8%). Few recommended Asian neighbors, such as Japan (3%), South Korea (1%), or Singapore (1%).
The limited interest in the U.S. as a destination for emigration is, I would guess, linked to current U.S. economic woes and America’s plummeting international popularity due to the Iraq war.
On the economy, strikingly large majorities of Chinese respondents are content with their country’s direction (86%) and economy (82%). This is the greatest level of satisfaction among the 24 nations included in the Pew survey. Despite satisfaction with national issues, Chinese respondents showed merely modest satisfaction with their personal job (64%) and household income (58%).
Chinese views of America’s intentions are mixed. The survey asked, “Overall, do you think of the U.S. as more of a partner of China, more of an enemy of China, or neither?” 13% said more of a partner, 34% said more of an enemy, and 41% said neither.
Our law firm is often retained to represent clients where a U.S. Consulate has returned the visa petition to USCIS to consider revocation. This process is slower and less transparent than it should be. Still, this update explains that recently there have been some minor improvements in the process. These improvements were mentioned by Jonathan R. Scharfen, Acting Director of USCIS, in a recent response to the USCIS Ombudsmanâ€™s recommendations for reform.
Generally, USCIS approval of a visa petition is a prerequisite for the issuance of a visa by a U.S. consulate abroad. For example, USCIS must approve an employerâ€™s H-1B petition before the worker applies for a visa at a U.S. consulate. Similarly, USCIS must approve a U.S. husbandâ€™s immigrant visa petition before the wife can apply for an immigrant visa at a U.S. consulate.
Even after a petition has been approved, USCIS can revoke it for good cause. And consular officers have instructions to return petitions to USCIS for revocation where fraud, misrepresentation, or ineligibility is likely to lead to revocation.
If USCIS concurs with the consular officerâ€™s reasoning, USCIS issues a â€œNotice of Intent to Revokeâ€ to give the petitioner an opportunity to respond. Once the response from the petitioner is received, USCIS will either reaffirm the petition and send it back to the consulate for processing, or revoke the petition. A petitioner may appeal revocation to the Administrative Appeals Unit.
Ombudsmanâ€™s Recommendations Accepted by USCIS
* USCIS Receipt Notice: The Ombudsman recommended that USCIS issue a receipt notice to the petitioner upon receipt from the Consulate of a returned petition. Happily, USCIS has implemented this recommendation. It can take 6-12 months or more between from when a Consulate returns a petition to when USCIS to issue a Notice of Intent to Revoke a returned petition. Previously USCIS didnâ€™t issue receipt notices to acknowledge they had received the returned petitions. Clients were left clueless about the status of their cases.
* USCIS Website Improvements: USCIS has agreed to improve its websiteâ€™s information related to revocation of petitions, but it appears that the update has not yet been posted.
Ombudsmanâ€™s Recommendations Rejected by USCIS
* Uncertain Processing Times: The Ombudsman recommended that USCIS create standard processing times for consideration of revocation of returned petitions, and report current processing times online. USCIS responded that it would not be practical to establish standard processing times because some cases require lengthy fraud investigations, whereas others do not. USCISâ€™ response is, in my opinion, disappointing. Setting standard processing times are helpful for USCIS service centers to set work priorities and for stakeholders to set reasonable expectations as to how long their cases will take. Moreover, as for other types of cases that USCIS handles, if a fraud investigation is needed, then an exception can be made to the standard processing time. Standard processing times would also, hopefully, reduce the current processing times for consular return cases. Currently, with consular return cases taking a year or more, clients must consider the faster option of filing a new petition. This creates extra work for USCIS, even though USCIS or the Consulate may refuse to act on the new case before USCIS completes decided whether or not to revoke the old petition.
Other Problems with the Consular Return Process
* Readjudication by Consulate: The State Departmentâ€™s Visa Office has reminded Consulates that they â€œshould not attempt to readjudicate petitionsâ€ already decided by USCIS. â€œRather, a consular officer should only seek revocation of the petition if the officer knows, or has reason to believe, that the petition approval was obtained through fraud, misrepresentation or other unlawful means, or that the beneficiary is not entitled to the status conferred by the petition. Petitions generally should not be returned unless the post uncovers new information not known to [USCIS] at the time of petition approval.â€ Despite this reminder, some consular officers seem to return petitions to USCIS when it is not warranted, thereby inconveniencing applicants and creating additional work for USCIS.
* Consular Notice of Intent to Return Petition to USCIS: Currently, a consular officer who decides to return a petition to USCIS needs only to provide notice of this fact to the visa applicant. The officer need not explain the reason why the petition is being returned. Our recommendation is that the officer should provide notice to the visa applicant of the reason why and give the applicant a chance to provide additional evidence that the petition should not be revoked. In some cases, this will be more efficient than waiting a year or more for USCIS to decide whether to revoke the petition.
Despite recent improvements, this legal process remains slower and less transparent than it should be. Counsel should help the visa applicant to be prepared at the time of the consular interview to answer all relevant questions by the consular officer in order to minimize the risk that the officer will return the petition to USCIS with a recommendation for revocation. If there are problems at the interview, it may be wise to contact the Consulate to try to resolve the problems before the petition is returned to USCIS. If the petition is returned, it may be best to both respond to the Notice of Intent to Revoke and consider filing a new petition.
 Memo by Jonathan R. Scharfen, USCIS Acting Director, Response to Recommendation #33, Recommendation on the Processing of Petitions That Are Returned by the U.S. Department of State for Revocation/Revalidation (May 23, 2008).
 Memo by Prakash Khatri, USCIS Ombudsman, Recommendation on the Processing of Petitions That Are Returned by the U.S. Department of State for Revocation/Revalidation (Aug. 24, 2007).
 INA Â§ 205; 8 C.F.R. Â§ 214.2(l)(9).
 Consulates return immigrant petitions (including Ks and Vs) to the National Visa Center and nonimmigrant petitions to the Kentucky Consular Center. In either case, petitions are then routed to the appropriate USCIS offices. Forms I-130, Petitions for Alien Relatives, initially filed with an overseas USCIS office are returned directly to that office by the Consulate. Minutes of AILA-DOS Liaison Meeting (Oct. 2007).
 Cable, DOS, 01-State-121801 (July 13, 2001).
 8 C.F.R. Â§ 205.2(b); 8 CFR 214.2(l)(9)(iii).
 For example, according to USCIS regulations, L-1 petitions should be adjudicated within 30 days. However, where a fraud investigation is needed, USCIS makes an exception to this time limit. 8 C.F.R. Â§ 214.2(l)(7).
 Cable, DOS, 01-State-121801 (July 13, 2001).
 Minutes of AILA-DOS Liaison Meeting (Oct. 2007).
Today was the fourth time in four years that U.S. citizen fathers have told me that the Beijing office of U.S. Citizenship and Immigration Services (USCIS) has refused to accept immigrant visa petitions (Forms I-130) on behalf of their children.
On all four occassions, USCIS stated reason for the refusal was that the fathers failed to submit photos and Forms G-325A (biographic information) with the petitions. Each time, I’ve contacted USCIS to explain that such materials aren’t required by the official instructions. (A spouse’s immigrant petition does need these materials). And each time, USCIS has agreed to follow the official instructions, accepting the re-submitted petitions.
These four fathers must only be a drop in the bucket. Many others have undoubtedly been refused for the same erroneous reason. If these fathers are able to follow USCIS official instructions, USCIS Beijing should train its staff to do so too.