Subject: Answer to Out of Status LADS

From: Shangqian Zhang <[email-masked]>
Date: Wed, 29 Sep 93 16:35:05 CDT

So many people ask content of the cable I mentioned in my last post. I put the
cable here for everyone who may be interesting.

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Cables Send to the US Diplomatic and Consular Posts by the State Department

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>From Interpreter Release April 30, 1990

In 66 Interpreter Releases 1313-16, 1331-32 (Dec. 4, 1989), we reported on a
directive from President Bush ordering the Justice Department to take certain
steps to protect nationals of the People's Republic of China (PRC) in the US.
Also, in interpreter releases 433-34, 477-48 (April 16, 1990) we reported on
the President's executive order fromalizing and expanding the directive.

The State Department has now sent two cables implementing the measure.

The following is the text of a March 7, 1990 cable (no. 90-State-072222)
sent by the State Department to all diplomatic and consular posts:

    Subject: 212(d) (4) (A) Passport Waiver for PRC Chinese

    Ref: A) 89 State 398971  B) 89 State 398972  C) State 16987

    1. Reftel A reports the President's directive of November 30, 1989,
providing to PRC Chinese who benifit from the Attorney General's June 6 order
deferring the enforced departure for nationals of China: 1) irrevocable waiver
of 212(e) which may be exercised until January 1, 1994; 2) assurance of conti-
nued lawful immigration status; 3) authorization for employment; and 4) notice
of expiration of nonimmigrant status, rather than institution of deportation
proceedings. The remaining reftal all described moves, primarily by the
immigration and naturalization service (INS), to immplement the directive.

    2. It has come to the Department's attention that some PRC Chinese covered
under the directive may have difficulty renewing their passports through
Chinese authorities. Earlier the INS had provided to PRC students and exchange
visitors in such circumstances, who were present in the US on or before June 5,
1989, waiver of the passport requirement for purposes of determining
nonimmigrant benefits. This provision pertained only to the maitenance of
nonimmigtant status and did not waiver the normal passport and visa requirement
for readmission following a period of temporary absence from the United States.

    3. However, consular officers were reminded that PRC Chinese who fall under
the provisions of the directive and who are not in possession of a valid
passport, as required under INA 212(A) (26), may benefit from a passport waiver
to reture to the US under INA 212 (D) (4) (A). Such requests should be referred
to the Department (CA/VO/F/P) noting the special circumstances and containing
the information in 22 CFR 41.3, n3, Department will seek the concurrence of the
INS for waivers in these cases.

The second cable (no. 90-State-132203), which expands on the first, was on
April 25 to all diplomatic and consular posts:

    Subject: Travel Documents for PRC Nationals Under Executive Order

    Ref: State 121941

    1. The President's executive order of April 11, 1990, which was reported in
Reftel to all diplomatic and consular posts, improves the immigration status of
PRC visitors who were present in the US on or after June 5, 1989, up to and
including April 11, 1990, the date of the order. The order is intended to
assure PRC nationals in the US that they will not be forced to reture to China
against their will before January 1, 1994. Protections are extended to all
Chinese present in the US as of the designated dates, or if not present, whose
temporary stay was interrupted by a brief, casual, and innocent departure. The
order does not cover PRC nationals who were present in the US within the
period of the designated dated but who concluded their temporary visit and
voluntarily left the US (e.g. an H-2B worker who completed his contract and
returned home, or a bussiness visitor who participated in various meetings and
left the conclusion of his business.)

    2. Section 2(B) of the order directs the Secretary of State and the
Attorney General to take all steps necessary with respect to PRC national
described in para one to provide necessary documents "both within the US and at
a US consulates overseas; to facilitate travel across the borders of other
nations and reentry into the US in the same status such PRC nationals had upon
departure."

    3. The Immigration and Naturalization Service will issue authorization for
advance parole (Form I-512) to PRC national who request it to allow such
travel. The I-512 is a single sheet, 8 1/2 by 11, which reatures a photograph
of the bearer and embossed seal. The I-512 issued to PRC nationals under the
order will be annotated to allow reentry in the same status in which the PRC
national departed the United States.

    4. It is expected that most PRC nationals departing the US will obtain the
I-512 to assure reentry. Some PRC nationals may seek a visa at a consulate or
embassy abroad to reentry the United States. In all cases in which the
applicant is covered by the President's Executive Order, posts are required to
accept the application for processing. If a visa is not issued as a result of
the application, and no other ready means of reentering the US is avialable to
the applicant, the post must submit the case for action to the Department
(CA/VO/F/P) and INS Central Office (COFOR, COADN) explaining why a visa may
not be issued and seeking guidance on alternative documentation available to
allow reentry the alien to the US.

    5. Any PRC national who was in the United States in legal status on or
after June 5, 1989, up to an and including April 11, 1990, will be considered
to have maintained lawful status for purposes of adjustment of status in the
United States under INA Sec. 245. Those who were not in lawful status as of
June 5, and are not eligible to adjust status under INA Sec. 245, will be
required to apply abroad for immigrant status. Immigrant visa issuing posts are
hereby directed by authority of the Department under 22 CFR 42.61(A) to accept
for processing the cases of those PRC aliens in the United States who claim to
qualify under the Executive order and who request acceptance of an application
for immigrant visa on a discretionary basis. According to the best available
data, Department does not expect the increase in workload as a result of the
acceptance of such cases to be significant.

    6. Section 2(A) of the President's Executive Order waives the passport
requirement through January 1, 1994, for all PRC nationals covered under the
order. If such nationals apply for a nonimmigrant visa, and are not in
possession of a valid passport, posts may issue the visa on Form OF-232 per 22
CFR 41.113(B)(3). In such cases, posts should prepare a letter to the INS
inspector at port of entry indicating that a passport waiver has been granted
under 212(D)(4)(A) per the authority granted in the president's Executive Order
of April 11, 1990 (See 22 CFR 41.2 N(4)).

    7. Waiver of the passport requirement for PRC natinals applying for
immigrant visas is already covered under 22 CFR 42.2(F). This section exempts
from the passport requirement for an immigrant visa: "An alien who is a
national of a Communist-controlled country and who is unable to obtain a
passport from the government of that country, and accompanying spouse and
unmarried son or daughter." Consular officers should prepare a letter to be
attached to the visa packet noting that the passport requirement has been
waived under the stated section and according to the President's Executive
Order of April 11, 1990.

    8. if a PRC alien applied for a replacement I-512 at a consular office
abroad, post should refer the request to INS central Office (COFOR, COADN) and
the Department (CA/VO/F/P) for guidance.

    9. In keeping with INA Section 291, the burden of proof for demonstrating
entitlement to an entry document rests with the applicant. In the case of PRC
nationals claiming to qualify under the President's order, it is the alien's
responsibility to show that he or she was present in the US on the designated
dates and therefor is covered under the order. All pertinent sections of the
Immigrantion and Nationality Act still apply, and all requirements of the visa
under the Act should be met before issurance.

    10. The attention of posts is also drawn to Section 6 of the President's
Executive Order, which directs the Department of Justice and State "to consider
other steps to assist such PRC nationals in their efforts to utilize the
protections that I have extended pursuant to this order." In keeping withthis
provision and with the spirit of the Executive Order, posts are requested to
give sympathetic consideration to applications of all PRC Chinese who are
affected by the order. Though PRC Chinese family members outside the US are not
covered under the order, posts should give sympathetic consideration to
applications of derivative status applicants seeking to join principal aliens
in the US who are covered under the order and whom the President has permitted
to remain until 1994.

    11. Please contact the Department (CA/CO/F/P) for further guidance in any
case in which post is unsure fo its obligations under the order or in which
post is unsure whether an alien qualifies under the order for a claimed
benefit.
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For your reference only. there might be some typing mistake. you may check them
out at your local libery.

Some suggestion:
1. simply mention item 5 in second cable, and point out the out-of-status is
not our fault because we thought that we are keeping the LAWFUL STATUS
until January 1994 even without extening visa,  hinting that is a technical
fault.
2. Dependent should be same status as principal.
3. INS officers are not familiar with CPSA very well, some are nice to us, some
not. Acception is depended on how you present your points and give them proper
papers(documents), as well as your luck.

Good luck!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!