Subject: CND-US, August 16, 1993

From: [email-masked]
Date: Mon, 16 Aug 1993 22:38:36 -0500

+-+-+-+-+-+-+-+-+-+   C h i n a   N e w s   D i g e s t  +-+-+-+-+-+-+-+-+-+

                               (US Regional)

                          Monday, August 16, 1993

+--------------------------------------------------------------------------+
| CND-US, normally 1 or 2 issues a week, is a supplement to CND-Global and |
| has basically no overlap with the daily news.   CND-US provides in-depth |
| information concerning Chinese students/scholars in the United States.   |
+--------------------------------------------------------------------------+

Table of Contents                                                 # of Lines
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1. Immigration Visa Numbers for September 1993 .......................... 60

                     CND-US CSPA Information Exchange
                     --------------------------------
2. Tables of Contents of Late-Comer Net News Releases on August 10 & 13 . 23
3. Q & A Regarding CSPA Dependents by NCCA/Zhao Hai-Qing ............... 245
4. Comments on INS CSPA Interim Regulations, Filed by NCCA/Zhao Hai-Qing
   at the U.S. Immigraion and Naturalization Service on August 2, 1993 . 455
============================================================================

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1. Immigration Visa Numbers for September 1993 .......................... 60
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Source: World Journal, August 11, 1993
Summarized and Translated by Bo Xiong

The U.S. State Department's Visa Bulletin (Telephone: 202-663-1541)
for September 1993:

(Note: the dates in the parentheses are those for the previous month)

Employment-Based

1st (Workers with             Current for most countries including Mainland
     extraordinary skills)    China (Current)

2nd (Advanced degree
     holders and special      Current for most countries including
     skilled workers):        mainland China (Current)

3rd (Skilled workers
     and Professionals):      Current for most countries including
                              mainland China (Current))

3rd (other workers):          For most countries including Mainland China:
                              December 22, 1987 (December 22, 1987)

4th (Special Immigrants):     Current for most countries including Mainland
                              China (Current)

4th (Religious Workers):      Current for most countries including Mainland
                              China (Current)

5th (Employment-creation):    Current for most countries including Mainland
                              China  (Current)

5th (Targeted Employment      Current for most countries including Mainland
     Areas):                  China  (Current)

Family-Based Preference Dates Are as Follows:

1st: (Unmarried children of   Current for most countries including Mainland
      U.S. citizens)          China (Current)

2A: (Exempt from per country
     limit)                   Worldwide date: April 8, 1991 (Feb. 22, 1991)

2A: (Subject to per country
     limit)                   Worldwide date: April 8, 1991 (April 1, 1991)
    (2A: Spouses and children of permanent residents)

LB: (Spouses and children of  For most countries including Mainland
     legalized beneficiaries) China: April 8, 1991 (April 1, 1991)

2B: (Adult children of        For most countries including Mainland
     permanent residents)     China: October 15, 1989 (October 15, 1989)

3rd: (Married children        For most countries including Mainland
      of U.S. citizens)       China: July 15, 1991 (July 15, 1991)

4th: (Sisters and brothers    For most countries including Mainland
      of adult U.S. citizens) China: February 22, 1984 (February 22, 1984)

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2. Tables of Contents of Late-Comer Net News Releases on August 10 & 13 . 23
----------------------------------------------------------------------------
>From: [email-masked] (Enhua Ed HE)  Thu, 12 Aug 93

TOC of News_release081093 and News_release081393 from LCnet

TABLE OF CONTENTS (08/10/93)

1. An Open Letter from LCs Working Committee
2. The LCs Working Committee Elected Officials
3. A Suggestion from LCN Reader
4. Working Report of the Interim Committee

TABLE OF CONTENTS (08/13/93)

1. Headline News:
   LC Working Committee Chair been Invited to Attend IFCSS Meeting
2. FAQ about LC Working Committee
3. Discussions during and after the LC Working Committee Meeting

LCnet:
Comments and Posts: [email-masked]
Sign on/off: [email-masked]

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3. Q & A Regarding CSPA Dependents by NCCA/Zhao Hai-Qing ............... 245
----------------------------------------------------------------------------
>From: Li-Min Song - Math Grad <[email-masked]> Fri, 13 Aug 1993
Subject: NCCA COUNCIL RELEASE Q&A

DATE:     AUGUST 13, 1993       FROM:     DR. HAICHING ZHAO

         We have received hundreds of responses to our e-mail
regarding problems of late arriving dependents in filing their
adjustment applications.  Due to the massive response, we cannot
individually answer each and every question.  However, many of
the problems are of a similar nature.  As a result, we are
developing a series of Q&As which will answer many of your
questions.  In addition, we are currently working with INS
headquarters on resolving a number of problems dependents are
having when they try to file their applications.  In some
instances, rejections are caused by a lack of knowledge of the
CSPA.  We believe these problems can be easily solved.  However,
the DED late arriving dependent issue, the 90 day rule and the
203(d) issues are more difficult and will require more time to
resolve.

         Please continue to let us know your problems and we will
make every effort to respond to your needs.

Q:       I have not filed my application yet but I have read that
         enough CSPA applications have been filed to take up the visa
         numbers available for 1993.  If I file now, when can I
         expect to get my green card?

A:       For fiscal year 1993 there are approximately 46,000 visas
         available for CSPA principals.  If you filed in July and
         made the cutoff, you will probably get an approval notice
         before September 30, 1993.  However, after October 1, 1993,
         there is a new fiscal year.  As a result, new visa numbers
         will be available so even if you will not get one of the
         1993 visas, you may get a 1994 visa before the end of the
         year.

Q:       What exactly is a "priority date?"

A:       Priority dates establish where you are in the queue while
         you wait for a visa number to become available so you can
         get your green card.  For principals, priority dates are
         the date INS receives your application for filing, provided
         you have filed a complete and accurate application.  For
         CSPA dependents, priority dates are the same as the CSPA
         principal.

Q:       Why can late arriving dependents now file?

A:       The State Department is in charge of determining if visa
         numbers are available for the different preference
         categories and countries.  This is based on annual
         projections which are adjusted monthly.

         In July 1993, the State Department issued a bulletin which
         stated that as of August l, 1993, the China quota for
         employment based third preference was current.   The State
         Department has also issued a new visa bulletin which states
         that this category will remain current throughout the month
         of September.

         Normally, adjustment applications cannot be filed until a
         visa is available.  Saying that the employment category for
         China is current during August and September means that a
         window has opened up for late arriving dependents to file
         their adjustment applications.

Q:       I am a CSPA principal with a July l, 1993 priority date.
         Since the China employment based third preference category
         is current, my late arriving dependents can now file their
         adjustment applications.  I think it is important that they
         file immediately so they will be first in line, after all,
         there are a lot of people with priority dates of July l.
         What do you think?

A:       The situation regarding the queue is different for
         dependents than it was for principals.  For principals it
         was important that you file as soon as possible in order to
         get an early priority date.  You were placed in the queue as
         soon as your application was received.  However, since
         dependents derive their priority date from their principal
         you do not gain any advantage from filing early.

         CSPA dependents will probably not receive visa numbers right
         away no matter when you file.  First of all, there are a lot
         of people in the queue ahead of CSPA beneficiaries.  The
         queue went from October 1, 1991 to current.  As a result,
         there are many people with dates prior to July 1 that will
         receive their visas first.  Second, there is a complex
         system as to how local INS offices are allocated visas.  For
         example, it is possible that you may file early but your
         local INS office does not have any visas available.  Yet,
         someone that files later at an office that has some visas
         left may get one.  Thus, the date dependents file has little
         relevance to when they can receive a visa.  Late arriving
         dependents should expect to wait a few years for a visa.

         The most important thing to remembers is that late arriving
         dependents have a window of August and September in which to
         file.  After that, it is expected that priority dates will
         no longer remain current but will retrogress to an earlier
         date because of high demand for visas.  You gain no
         advantage from filing early as you already have a priority
         date.  It is more important to make sure that your
         application is done correctly and that there are no grounds
         for rejection.  If our application is rejected, you may not
         have enough time to get it straighten out and refiled before
         the window closes.

Q:       If I cannot get my green card right away, why should I file
         now?

A:       The main reason you want to file now is that you will
         receive the benefits of having a pending adjustment
         application.  These benefits include maintenance of your
         status, work authorization, and advance parole.  While we
         are working on getting a CSPA family unity program, this may
         not happen any time soon so it is best for you to apply for
         adjustment now if you are eligible.

Q:       I am a CSPA late arriving dependent.  My application for
         adjustment was rejected even though I clearly qualify.  It
         seems to me that local INS offices are not familiar with
         CSPA late arriving dependent issues.  What can we do about
         these misinformed INS employees?

A:       The first thing to do is remain calm and reasonable.  Do not
         get into arguments with the local INS employees.  We have
         complaints that some Chinese nationals have been very rude
         and this does not reflect well on the Chinese community as a
         whole.  Remember, the INS has done a lot to help us in the
         past.

         If you run across a problem with local INS employees that
         prevents you from filing your application even though you
         qualify as a late arriving CSPA dependent, please let the
         National Council on Chinese Affairs know as soon as
         possible.  Clearly state your problem, the local office you
         went to and what you were told by INS at that office and
         send it to us at P.O. Box 77418, Washington, D.C.  20013-
         7418.  We are now compiling a list of problems and will work
         with INS Headquarters to minimize difficulties and delays.

         Remember the CSPA is a unique program and many INS employees
         are not familiar with it.  This is why we argued for
         regional processing.  However, we will work to resolve these
         problems so that all eligible late arriving dependents can
         file their applications before the window closes at the end
         of September.

Q:       I am a J-1 late arriving dependent of a CSPA principal.  Do
         I need a waiver of the two-year foreign residency
         requirement in order to file for adjustment as a CSPA
         dependent?

A:       Yes, you need to obtain a waiver before you can adjust.
         There are a number of ways under current immigration law to
         apply for a waiver, however, it is not easy and takes some
         time.  You may want to contact an immigration professional
         to assist you.

Q:       I am a J-2 late arriving dependent of a CSPA J-1 principal
         who took advantage of the one-time irrevocable waiver
         provided under President Bush's Executive Order.  Am I still
         subject to the two-year foreign residency requirement?

A:       No, but you should provide proof with your adjustment
         application that your CSPA principal took advantage of the
         waiver provided under the Executive Order.  You can do this
         by including a copy of your CSPA principal's waiver letter
         or, if there is no waiver letter because of the blanket
         waiver provided CSPA principals, include the entire
         adjustment application of the CSPA principal.

         The factual background is as follows:
         In a September 27, 1989 letter from Lawrence J. Weinig, then
         INS Deputy Assistant Commissioner for Adjudications, Mr.
         Weinig stated that a J-1 principal who fulfills the two-year
         foreign residency requirement confers the same status on his
         or her J-2 spouse or children.  He noted that an alien
         granted J-2 status is not in an independent nonimmigrant
         status and can therefore only derive immigration status and
         benefits through the principal J-1.  They are subject to the
         requirement because of the J-1 principal's participation in
         an exchange program.  As a result, if the J-1 gets a waiver,
         so do the dependents.

         A further clarification regarding the applications of late
         arriving dependents was provided in a November 27, 1989
         letter from R. Michael Miller, then INS Deputy Assistant
         Commissioner for Adjudications.  Once again, it was noted
         that a J-2 dependent was only subject to the two-year home
         residence requirement because of the J-1 principal.  Once
         the J-1 receives a waiver, there is no longer a home
         residence requirement for any dependent of the J-1.

         We know there has been confusion on this issue at local INS
         offices.  We will raise this with INS Headquarters and ask
         them to issue a cable to the field saying that J-2
         dependents have fulfilled the two-year foreign residence
         requirement if their CSPA J-1 principal received a waiver
         pursuant to the Executive Order.

Q:       I am a J-2 dependent whose application was rejected by the
         local INS office because they said I did not have a waiver
         of the two-year foreign residency requirement.  Should I
         enter voluntary departure?

A:       Do not enter voluntary departure unless absolutely
         necessary.  You CANNOT maintain lawful status if you are in
         voluntary departure.  We have learned from the DED program
         that there are serious drawbacks to taking advantage of
         these protection programs.  As you lose lawful status when
         you enter them, you should not do so unless absolutely
         necessary.

         The local INS offices are not clear about the derivative
         waiver of the foreign residency requirement which you are
         entitled to.  We are requesting that INS headquarters send a
         cable to local offices to clarify this.

Q:       Is the date on my fee receipt also my priority date?

A:       Generally no.  The date on the fee receipt is usually the
         day your application was logged into the INS computer.  It
         is not the priority date.  However, some service centers
         have put July 1 on the fee receipt even though the
         application may have been logged in at a later date.

         When you receive your approval notice, it will tell you what
         your priority date is.  Approval notices for those that
         qualify for the first 46,000 visas should be received by
         September 30.

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4. Comments on INS CSPA Interim Regulations, Filed by NCCA/Zhao Hai-Qing
   at the U.S. Immigraion and Naturalization Service on August 2, 1993 . 455
----------------------------------------------------------------------------
>From: Li-Min Song - Math Grad <[email-masked]> Mon, 16 Aug 1993
Subject: NCCA COUNCIL RELEASE: OFFICIAL COMMENTS ON CSPA INTERIM RULE

          OFFICIAL COMMENTS OF THE NATIONAL COUNCIL ON CHINESE
         AFFAIRS REGARDING THE IMPLEMENTING REGULATIONS OF CSPA

DATE:     AUGUST 16, 1993       FROM:     DR. HAICHING ZHAO

     The following is the official comments letter we filed at the
INS regarding the CSPA interim regulations.  The comments were
filed on August 2, 1993, before the deadline of the 30 day comment
period for the interim rule.

     In the comments, we specifically addressed the following
issues:

     (1) Visa quota allocation.

     (2) Dependents should be covered by CSPA under the worldwide
          quota instead of subjecting them to China quota.

     (3) DED dependents should be deemed as have maintained their
          legal status.

     (4) A family unity program be established to correct the
          problems associated with the voluntary departure program.

     (5) 90 days rule.

     (6) People who entered without inspection.

     We enclose our official comments here for your reference.

        ________________________________________________________

                         August 2, 1993

VIA HAND DELIVERY

Immigration and Naturalization Service
Records Systems Division
Director, Policy Directives and Instructions Branch
Washington, D.C.  20536

     Re:  Reference No: 1607-93
          Implementing Regulations - Chinese Student Protection Act
          P.L. 102-404

Dear Sir/Madame:

     This letter is filed in response to the interim final
regulations published by the Immigration and Naturalization Service
("INS") on July 1, 1993 to implement the Chinese Student Protection
Act ("CSPA").  58 Fed. Reg. 35832-39.  On October 9, 1992 the
President signed into law, S.1216, the CSPA.  The CSPA represents
the culmination of efforts by pro-democracy Chinese students and
scholars to protect themselves from return to China after the June
1989 massacre at Tiananmen Square in Beijing.  Following the
massacre, President Bush vetoed similar legislation and issued an
Executive Order (No. 12711, April 11, 1990) that provides temporary
work authorization and protection from forced return to China
through January 1, 1994 for certain Chinese nationals.

     The National Council on Chinese Affairs is a non-profit
organization whose goals are to promote human rights improvements
and political reform in China; to encourage and facilitate the
development of a market economy in China; and to protect the rights
of and promote opportunities for Chinese nationals living in the
U.S.

     The National Council on Chinese Affairs is committed to
building coalitions among Chinese nationals, U.S. policy-makers and
organizations to pursue programs and activities in support of our
goals.  It also serves as a source of information and develops
educational materials.

     We believe that there are several imperfections in the
regulations - particularly with regard to the visa number
allocation, the treatment of non-qualifying dependents both in the
U.S. and in China and the 90 day restriction on return to China.

VISA NUMBER ALLOCATION - GENERAL

     The interim regulations conclude that the immigrant visa
numbers allotted to the CSPA should be limited to those available
under the employment-based third preference category.   This
interpretation is derived from the CSPA at section 2(a)(1) which
designates the employment-based third preference category as the
appropriate "classification" for covered PRC nationals.

     As a result of an oversupply of employment based visas
following the implementation of the Immigration Act of 1990, a
surplus of approximately 45,000 visas is available for fiscal year
1993.  Once these visas have been exhausted the remainder of the
principals will use the employment based third preference visa
numbers following fiscal year 1993 until everyone is adjusted.

     It has always been estimated by INS and the Department of
State that 80,000 students may be eligible.  Should the principal
applications exceed the 46,000 then the standard third preference
category is likely to become oversubscribed.  A potential serious
consequence of the visa number interpretation is that all other
individuals who file their immigrant visa applications after the
PRC nationals will be unable to obtain any visas until all the PRC
nationals have obtained their visas.  Moreover, the 46,000 visas
that will potentially be used for CSPA applicants would have
spilled across to the backlogged family based second preference
category, under the provisions of the Immigration Act of 1990.
Therefore, the potential beneficiaries of the spill-over are also
affected by this State Department's interpretation of the CSPA.

     CSPA applicants should not be required to wait for a visa
number under the worldwide employment-based third preference
category under the worldwide quota.  The CSPA in Section 2(a)(1)
classifies covered PRC nationals within the employment-based third
preference category reserved for skilled workers.  Immigration and
Nationality Act ("INA") Section 203(b)(3)(A)(i).  Covered PRC
nationals are therefore deemed to have an immigrant visa petition
approved in this category without meeting the normal petitioning
and labor certification requirements.

     Congress presumably chose this employment-based category
because it is reserved for professionals and skilled workers. Under
normal immigrant visa circumstances, this category would be likely
to cover all the PRC nationals covered under the CSPA.

     The CSPA at Section 2(a)(4) waives the per country numerical
restrictions of INA Section 202(a)(2) applicable to China.  Without
this waiver, PRC nationals applying for adjustment of status would
be placed within the current backlog of the PRC employment based
categories.  Congress intended that PRC nationals filing under the
CSPA not be held up by an existing quota.

     Section 2(a)(2) of the CSPA specifically provides that an
application shall be considered without regard to whether immigrant
visa numbers are immediately available.  Under standard immigration
procedures, an immigrant visa applicant may not apply for
adjustment of status unless an immigrant visa is "immediately
available" at the time the application is filed.  INA Section
245(a)(3).  The fact that immediate visa number availability is not
an issue implies that visa numbers will be taken from some other
visa source.

     Arguably that source could be future China quotas.  The CSPA
at Section d provides for a detailed mechanism to repay all of the
visas used by PRC nationals under the CSPA over the next several
years.  Each fiscal year, beginning in fiscal year 1993, 1000 visas
will be subtracted from the overall China quota.  Three hundred
(300) of those visas will come from the employment-based third
preference quota and 700 will come from the employment-based fifth
preference quota.  The repayment of the visas is amortized over
many years so as not to dramatically affect the normal China
immigration quota.  Visas that are borrowed from future China
quotas for the initial issuance of immigrant visas could be repaid
through this mechanism.

     The written legislative history of the CSPA is ambiguous in
some spots, but taken in its totality supports the statutory
interpretation given above.  There are actually very few written
sources to draw upon -- the House Report, and the floor statements
in both chambers.  The House Report (H. Rep. No. 826, 102d Cong.,
2d Sess. (1992)) contains some ambiguous language concerning the
interpretation of the CSPA.  The report says that PRC nationals'
status should be regularized so that they do not have to live in
the same "limbo status" that they are currently experiencing where
they are unable to make long-term plans. p. 4.  The report also
says the number of adjustments will be placed "within the worldwide
annual quota of section 201 of the INA", and that deductions will
be made from the China country quota each year to offset against
those who adjust.  p. 5.  The ambiguity arises with the sentence,
"because the worldwide quota is not waived, applicants will be
required to await the availability of a visa number."  p.5.

     The statement in the report about awaiting visa availability
is not only ambiguous, but it is also inconsistent with Section
2(a) of the CSPA which provides that the application shall be
considered without regard to whether an immigrant visa number is
immediately available at the time the application is filed.  The
CSPA should be interpreted to provide for immediate visa issuance
to all PRC nationals and their dependents without having an adverse
impact on other employment or family based applicants.  A fair and
equitable reading of the CSPA would allow PRC nationals and their
dependents to borrow visas from future quotas and use the
offset/payback mechanism in the statue to repay the visa numbers
used.

VISA NUMBER ALLOCATION - DEPENDENTS

     Dependents are Covered by CSPA

     A further problem relates to visa issuance to late-arriving
dependents and dependents of the CSPA principals still in China, as
these individuals did not qualify directly under the Executive
Order.  The interim regulations subject dependents both in the U.S.
and in China to the employment based third preference China quota.
The principal applicants are not subject to the China quota because
of the waiver in the per country level found in Section 2(a)(4) of
the CSPA.  According to the July Visa Bulletin, cases are being
processed under the third preference China quota that were filed
prior to October 1, 1991.  Visa Bulletin, Vol VII, No. 25.
Dependents filing under the CSPA could potentially be subject to a
wait of many years before being eligible to file for and obtain an
immigrant visa.

     There are many derivative problems involved in subjecting
dependents to the China quota.  Dependents in the U.S. would be
required to maintain independently their current non-immigrant
status or face deportation.  Many dependents rely entirely on their
spouses or parents for their immigration status (e.g. F-2 or J-2)
and will not be able to maintain their non-immigrant status
independently.  The INS has proposed a case-by-case voluntary
departure program, but even if voluntary departure is granted, the
individual will not be able to adjust status in the U.S. when the
visa number is current because, arguably, they have failed to
maintain their status as required by INA section 245.  This is
clearly contrary to the underlying rationale of the CSPA, which
seeks to avoid sending Chinese nationals in the U.S. back to China.

     For dependents remaining in China, the situation is even more
bleak.  These individuals would be required to wait in China until
visa numbers are available which could potentially separate
families for inordinate periods of time.  The chances of obtaining
a nonimmigrant visa to enter the U.S. are severely hampered for the
dependents of a spouse or parent in the U.S.  In addition, many of
the dependents, both in the U.S. and in China, who are now
considered children, will reach the age of 21 prior to visa
availability.  This would disqualify them for visa issuance.

     There is authority in the statute and legislative history to
include the spouses and minor children as direct beneficiaries
under the CSPA.  The CSPA defines covered aliens at section 2(b)(1)
as nationals of the PRC described in section 1 of the Executive
Order (E.O. 12711, April 11, 1990).  The Executive Order, at
Section 1, describes covered aliens as PRC nationals and their
dependents who were in the U.S. on or after June 5, 1989, up to and
including April 11, 1990.  In the House Report under the heading
"Summary of Bill" it states that:

     S.1216 authorizes the Attorney General to grant lawful
     permanent residency to any national of the People's
     Republic of China (and the dependents of any such
     national) who (1) was in the United States after June 4,
     1989 and before April 11, 1990; (2) has resided
     continuously in the United States since April 11, 1990
     (other than for brief, casual and innocent absences); and
     (3) was not physically present in the PRC for longer than
     90 days after April 11, 1990.

p. 5 (emphasis added).  This language and the use of parentheses
seem to directly exempt family members from the three stated
requirements, but yet include them for purposes of adjustment.  In
addition, the Presidential signing statement describes the bill as
including dependents.

     Legally, Dependents must be Allowed to Accompany or Follow-To
     Join

     In the alternative, because the principal beneficiaries are
classified in the employment-based third preference category, under
normal immigration circumstances, spouses and minor children of
such dependents would also be immediately eligible for immigrant
visas, at the same time the principal applicant receives his/her
visa.  This is mandated by statute.  The INA at Section 203(d)
provides authority for spouses and minor children both in the U.S.
and outside of the U.S. to obtain permanent residence at the same
time as the principal applicant, and the final regulations should
reflect this.

EMPLOYMENT BASED THIRD PREFERENCE - CHINA QUOTA

     On July 9, 1993 the State Department released its Visa Number
availability for August.  Visa Bulletin, Vol VII, No. 26.  The visa
number projections for August listed ALL employment based visa
numbers as current, with the exception of unskilled workers and
skilled workers coming from the Philippines.  This includes the
employment based third preference category for China, where CSPA
dependents are expected to be classified.

     During the month of August 1993, many applications from late
arriving dependents here in the U.S will be filed with the INS.
The "current" status of this category will be short-lived.  By
September 1993, the backlog could well be five to seven years
depending upon the demand.  Those dependents whose applications for
adjustment are accepted for processing could potentially be
relieved from seeking any other temporary benefit, e.g., voluntary
departure or family unity (discussed below).  While these
dependents are pending adjustment of status (regardless of the
retrogression of the visa numbers), they should be (1) deemed to
have maintained their nonimmigrant status; (2) granted employment
authorization; and (3) granted liberal advance parole for travel
purposes.

     INA Section 245(c) clearly states that the maintenance of
status requirement is not applicable to those individuals who
"through no fault of his own or for technical reasons" failed to
maintain his status.  Both of these exceptions apply to individuals
who are derivative beneficiaries of CSPA principal applicants who
filed their applications in July 1993.  The Executive Order
provided for maintenance of status for its beneficiaries who
obtained Deferred Enforced Departure.  Many dependents technically
lost their status when the principal entered the DED program.  The
CSPA interim regulations necessitated separate adjustment
applications of CSPA principals and dependents.  A blanket waiver
of these potential technical violations of status should be given.

ADDITIONAL ISSUES FOR DEPENDENTS

     Aside from the potential visa issuance problems, dependents
will face additional problems.  If they are in the U.S. they must
remain in status in order to avoid the possibility of deportation
and eventually to adjust their status.  The INS' proposed voluntary
departure mechanism does not provide for maintenance of status.  In
fact voluntary departure is granted only on an individual, case-by-
case basis.  An individual would be required to subject himself to
possible deportation prior to obtaining voluntary departure.

     A blanket family unity program should be established to
protect all late-arriving dependents.  This program should mirror
the benefits of E.O. 12711 to (1) provide employment authorization
for the duration of the dependents' wait; (2) provide liberal
advance parole; (3) deem the individual to maintain his/her
nonimmigrant status for adjustment purposes; and (4) allow children
under twenty-one on the date of the CSPA principal's approval to be
eligible for adjustment even if they are over twenty-one at the
date of adjustment.  This family unity program would resolve the
problems involved with the case by case voluntary departure
program.

90 DAYS IN CHINA

     The implementing regulations provide that applicants who were
physically present in the PRC for a period exceeding 90 days
between April 11, 1990 and October 9, 1992 will not be eligible to
adjust status under the provisions of the law.  The regulations
express the view that because the restriction is statutorily
imposed, the INS has no authority to waive this restriction for any
reason.

     Although the legislative history of CSPA is silent with
respect to the rationale for the 90 day rule, Congress presumably
wished to withhold the benefits of the Act from individuals who
could, easily, frequently or on a long-term basis re-establish ties
with the same government responsible for the Tiananmen Square
massacre.  It is possible that the 90 day rule was meant as a
"bright line test", to ensure that those who truly feared a return
to the PRC -- as evidenced by minimal or no return trips -- would
be protected by CSPA.

     Viewed in this light, failure to provide an administrative
waiver to those unfortunate individuals who were detained in China
for periods totaling over 90 days, in circumstances beyond their
control, would certainly run counter to the motivation behind the
rule, and indeed, behind the statute as a whole.  In particular, it
is directly contrary to the legislative intent behind CSPA to deny
the benefits of the law to individuals who were detained through
actions of the PRC government.  It is undeniable that the law was
meant to protect Chinese nationals from such irrational and
retaliatory government actions.

     While there is no explicit statutory waiver for the 90 day
rule, neither is there a statutory bar on an administrative waiver.

Certainly the law, taken as a whole, encourages the agency to
exercise its discretion on humanitarian grounds.  Clearly,
administrative waivers of the 90 day rule in cases in which
returning PRC nationals were detained by government actions such as
imprisonment, withholding of a passport, or the denial of an exit
visa would be justified on humanitarian grounds.  Similarly waivers
for individuals whose departures were delayed by family or medical
emergencies would be within the spirit of the CSPA.

     The INS has, on at least one previous occasion, created an
administrative waiver without explicit statutory authority.  Under
the amnesty program created by the Immigration Reform and Control
Act of 1986 ("IRCA"), aliens who departed the U.S. during the
period of continuous unlawful residence, and reentered the U.S. to
resume their unlawful residence by use of a facially valid visa,
were required to obtain a waiver of the misrepresentation exclusion
ground.  This waiver -- not authorized by IRCA or in the specific
exclusionary waivers that existed in the INA at the time -- was
codified by the INS at 8 C.F.R. 245a.2(b)(10).  The administrative
waiver also seems to have survived judicial scrutiny.  See LULAC v.
INS, No. 87-4757-WDK (C.D. Cal. July 15, 1988).

     Where the statute is silent, then, it would appear that the
INS does have the authority to create a waiver if consistent with
the general aims of the statute.  We therefore, believe the 90 day
restriction should be waived for those individuals (1) who were
precluded from leaving the PRC by the PRC government; (2) who had
family medical emergencies; and (3) who had personal medical
emergencies.  If the INS is concerned about possible document fraud
in obtaining such a waiver, it can certainly require as much
corroborating evidence, in any form it deems appropriate, in order
to satisfy itself on this point. It would, however, be both tragic
and unjust to allow a general presumption of fraud with respect to
the entire community preclude from CSPA benefits those individuals
with legitimate grounds for a waiver.

CHINESE NATIONALS WHO ENTERED WITHOUT INSPECTION

     Although the Executive Order protected Chinese Nationals who
entered the U.S. without inspection, as well as those who were
inspected upon entry, the implementing regulations preclude
adjustment by Chinese Nationals who entered without inspection. The
INS bases its interpretation of the CSPA upon the lack of an
explicit statutory waiver of INA Section 245(a), which states that
inspection upon entry or parole is a pre-requisite to eligibility
for adjustment.

     The statute's extension of the CSPA benefits to all Chinese
nationals who were covered by the Executive Order is an implicit
waiver of the inspection/parole requirement of Section 245(a).
Moreover, the statute contains no explicit bar with respect to this
group, and there is no evidence of Congressional intent to carve
out a class of Executive Order Chinese nationals and preclude them
from permanent protection.

CONCLUSION

     On behalf of The National Council on Chinese Affairs we
respectfully request that INS and others at the Department of
Justice carefully consider and evaluate the issues raised above.
Should you have any questions or need additional information,
please contact the undersigned.

                         Sincerely,

                         Haiching Zhao, Ph.D.
                         President
          _______________________________________________________

     Please note that these comments are filed at the INS.  There
are other issues of our concern that we have also raised with other
government agencies of the appropriate jurisdiction.

     There are many people who have expressed their concerns and
suggestions and contributed to our official comments.  We sincerely
thank you for your efforts.  We will continue to hear your
concerns.  There are also many people who have asked how they can
contribute financially to our lobbying effort on CSPA related
issues.  For suggestions, concerns, or contributions, please send
to:

     National Council on Chinese Affairs
     P.O. Box 77418
     Washington, D.C. 20013-7418

     For further information concerning late-arriving dependents,
you may call (202) 835-1880

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