Subject: Letter from Dr. Zhao Haiching

From: [email-masked] (Yonghong Li)
Date: Mon, 16 Aug 93 16:53:38 -0400

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Subject: COUNCIL RELEASE: OFFICIAL COMMENTS ON CSPA INTERIM RULE
Status: R

*****************************************************************

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

*****************************************************************

     TO:       Chinese Nationals Nationwide

     FROM:     Dr. Haiching Zhao

     DATE:     August 16, 1993

     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

/end