As I mentioned in yesterday’s post, nonimmigrant visa applicants are now waiting for 12-14 weeks for Visas Mantis security advisory opinions (SAOs). This SAO is a security check to ensure that science and technology students and professionals seeking U.S. visas aren’t likely to try to illegally export U.S. technologies. These waits are terribly disruptive to business and universities. Continue reading “Advice for Dealing with Long SAO Waits”
Visas Mantis SAO processing times have risen to 12-14 weeks, causing disruptions in the lives of travelers planning to enter the U.S. on nonimmigrant visas. For example, many students and temporary workers who returned home for vacation during Christmas 2008 are still awaiting their visas to return to school and work. Continue reading “As Processing Times Rise, the Spotlight Shines on SAOs Again”
According to a new study by the Department of Homeland Security, as of January 2007 there were 11.8 million unauthorized immigrants in the U.S. Among them, 290,000 were born in China. This is a 49% increase in the number of Chinese unauthorized immigrants since 2000. China ranks fifth on the list of source countries for unauthorized immigrants, after Mexico, El Salvador, Guatemala, and Philippines. The term “unauthorized immigrants” here refers to persons who entered the U.S. without inspection or who were admitted temporarily and stayed past the date they were required to leave. See Michael Hoefer, et al., Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2007 (USCIS Sept. 2008).
Here’s my take on this study. The study doesn’t explain whether the rate at which ChineseÂ are violating U.S. the immigration laws (i.e., entering without inspection or overstaying their visas) is increasing or decreasing. It’s possible that the rate has decreased significantly due to improving social and economic conditions in China. The figures may not reflect this decrease because, according to some sources, there are up to 50,000 PRC citizens in the U.S. with final orders of deportation who have not been repatriated because the PRC government hasÂ not cooperated sufficientlyÂ by issuing the necessary travel papers for themÂ to be returned to China. If this is true, a large percentage of the increase in the number of unauthorized immigrants from China may be due to the slow rate of violators departing the U.S., not due to the rate of violations by new entrants.
Last year I wrote a post about possible future changes in U.S. visa processing. The State Department has now released more information about their plans, allowing a clearer glimpse at the future of visa processing.
A Consular Electronic Application Center (CEAC) has been created by the State Department with the goal of supporting “an Internet-based, full-service application service center”Â where nonimmigrant and immigrant visa applicants will be able to complete and submit applications, make payments, attach photos, and track their application status. Applicants will be able to scan and submit documents (e.g., bank statements and court records) electronically with their application forms. The CEAC could represent a major leap forward for a number of reasons. For example:
- SAOs: Currently some applicants need to wait up to 12-14 weeks for a security advisory opinion (SAO). The State Department doesn’t begin this security check until after the interview, when the applicant has submitted required documents. Perhaps in the future the SAO process could begin before the interview–as soon as the documents are submitted.
- Mail and Customs Delays: Currently immigrant visa and K-1 fiancee visa applicants need to collect civil documents in China (e.g., police letters, marriage and birth certificates), mail them to the National Visa Center (NVC) in the U.S., and then wait for the NVC to mail the documents back to the U.S. Consulate in Guangzhou. Mail can literally take months to get to the Consulate because of delays by Chinese Customs. NVC has already begun experimenting with using scanned documents instead of mail. Expansion of these efforts could significantly reduce visa wait times.
Of course, as with any technology developments, the devil is in the details. Will the CEAC create a bright, shiny visa future, or a bug-filled software nightmare?
Many Chinese have followed with interest the case of Zhao C. This young man had used “C” as his given name for his entire life, but when he needed to update his national ID card to a second-generation version, the local Public Security Bureau refused to use that name on the grounds that it was not a legal name and that PSB computers are not equipped to handle names with non-standard characters. Zhao took the PSB to court in what was heralded as China’s first name-rights lawsuit. The district court in Yingtan, Jiangxi Province, ruled in Zhao’s favor, but the PSB appealed. While the appeal was pending the case settled, Zhao agreeing to change his name and the PSB agreeing to waive the paperwork fee.
The legal provision at issue in the case was issue in the case was Article 4 of the PRC Citizens’ ID Law (身份证法), adopted by the National People’s Congress in 2003. It states that standard Chinese characters and numerals and symbols conforming to national standards shall be used in filling out a national ID card. Article 3 of the regulations (pre-dating the law) further specifies that the name “shall be registered in the standard language used throughout the country.” Zhao argued that the letter C is part of Hanyu Pinyin, the PRC’s official Romanization system for Mandarin Chinese, while the PSB argued that C is a foreign language letter.
If Zhao can use one foreign letter in his name, the government’s concern is that other parents may give their children English names, potentially eroding Chinese language and culture.
The Zhao C case is relevant to U.S. immigration law because China’s policy on names determines what name will be used on an immigrant visa. The visa must follow the name in the Chinese passport (9 FAM 42.73 PN1.2-1), which in turn is based on the name in the national ID.
PRC clients applying for immigrant visas as the spouse or child of a U.S. citizen sometimes ask our firm if they can use the citizen’s western surname on their immigrant visas. The answer is no, since the western surname can’t be used in a PRC national ID or passport.
The solution, then, is to change one’s name after entering the U.S. This could be accomplished by (a) filing for a name change in state court, (b) re-marrying in the U.S., since every state will allow a wife to use her husband’s surname, or (c) changing names at the time of naturalization.
I previously reported on a September 2008 USCIS report, entitledÂ 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 areÂ 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.Â Â 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 â€œACWIAâ€ fee to the federal government to be used for training U.S. workers so our country can compete better in the global economy.
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”