Subject: INS's respons to Lads-Net' Petition Letter

From: [email-masked] (Mi Mi)
Date: Fri, 12 Nov 93 20:32:03 CST

Mi Mi Sr. has received the official reply from INS. Here it follows.

U.S Department of Justices
Immigration and naturalization Service
HQ 245-C
425 Eye Street N.W.
Washington, D.C. 20536
Nov-5 1993
 
Mr. *** ****
LADs Network Committee
***********************
New York, NY #####
 
Dear Mr. ******,
 
        Attorney General Janet Reno has asked my office to respond 
to your recent letter and accompanying list of 510 co-signers 
concerning the Chinese Student Protection Act of 1992 (CSPA). In 
your letter, you express concerns about dependents of persons who 
have sought lawful permanent resident status under CSPA. Since 
most of these dependents do not qualify for adjustment of status 
under the CSPA because they did not arrive in the United States 
until after April 11, 1990, you refer to them as "Late Arriving 
Dependents" or "Lad's."
 
        You indicate that you are concerned about the length of time 
an LAD may have to wait for an immigrant visa number to become 
available because the China per-country quota has become 
oversubscribed under the third employment-based skilled worker 
preference classification. You recommend that the per-country 
quota be waived for Lad's allowing them to be charged to the 
worldwide quota limitation for third employment-based skilled 
workers.
 
        Although we empathize with your goal of early lawful 
permanent residence for spouse, children, and adult sons and 
daughters of CSPA beneficiaries, the Service cannot provide 
benefits and considerations beyond those allowed by the law. 
Neither the Department of Justice nor the Service has the legal 
authority to waive or otherwise change the limitations that the 
United States Congress has placed on the number of preference 
immigrants who may become lawful permanent residents, unless a 
law enacted by Congress so directs.
 
        The CSPA, which is  a public law enacted by the United 
States Congress, provides the Service with the authority to waive 
the per-country limitations of section 202 of the Immigration and 
Nationality Act (Act) only for persons eligible to adjust status 
under the CSPA. The CSPA does not authorize any waivers for 
persons who are not covered by Executive Order 12711 because they 
arrived in the United States after April 11, 1990, or who are 
otherwise ineligible for CSPA adjustment.
 
        Section 203(d) of the Act allows a CSPA beneficiary's spouse 
and minor children to use the CSPA beneficiary's priority date 
and preference category. However, it does not authorize the 
waiver of the quota limitations or extend other CSPA benefits or 
waivers to ineligible family members.
 
        You have also recommended that the Service establish a 
blanket family unity program to include all lad's. You believe 
that such a program should eliminate the requirement that a non-
immigrant have a residence abroad which he or she has no 
intention of abandoning and the presumption of "immigrant 
intent;" waive the requirements of section 245(c) of the Act and 
allow all lad's who are applying for adjustment of status to be 
regarded as having continuously maintained lawful non-immigrant 
status regardless of their actual immigration history or status; 
provide liberal advance parole benefits; provide employment 
authorization for dependents; and allow adult sons and daughters 
of CSPA beneficiaries to receive derivative immigrant 
classification under section 203(d) of the Act regardless of age 
at the time of application for adjustment of status.
 
        Although we understand your desire to have these liberal 
benefits made available for family members of CSPA beneficiaries, 
the Service must again respond that benefits and considerations 
cannot be provided if they are beyond those allowed under the 
Act.
 
        The Department of Justice and the Service lack the legal 
authority to institute a family unity program encompassing all 
the benefits discussed in your letter. A program offering these 
benefits could not be established without the authorization of 
the United States Congress in the form of a law allowing the 
Service to waive existing provisions of the Act. Absent this type 
of legal direction, the Service must comply with the requirements 
of the Act and with established precedent; the Service cannot 
confer benefits on persons who do not meet the statutory approval 
criteria.
 
        You may wish to contact the United States Department of 
State, which has jurisdiction over immigrant non immigrant visa 
issuance abroad, concerning visas for family members who are not 
in the United States. The Service has been informed that the 
Department of State has indicated that Lad's who are unable to 
adjust status in the United States may be allowed to process 
their immigrant visa applications at Ciudad Juarez, Mexico, 
rather than being required to return to the People's Republic of 
China for this purpose, You should be advised, however, that the 
Department of States must also comply with the requirement of the 
Act relating to visa issuance.
 
        As indicated in the interim rule implementing the CSPA, a 
family member in the United States who is not eligible to adjust 
status may request voluntary departure pursuant to 8 CFR part 
242. Persons who have been granted voluntary departure may 
request employment authorization. A family member who has reasons 
to fear persecution in his or her home country and believes that 
he or she meets the definition of refugee provided in section 101 
(a) (42) of the Act, may request asylum in the United States. The 
existing immigration benefits may be available to qualified 
family members on an individual basis.
 
        Although the Service is unable to comply with the requests 
outlined in your letter, we are pleased to be able to inform you 
that the Service approved over 41,000 applications for CSPA 
adjustment of status prior to October 1, 1993. We have been 
notified by the Department of State that all available immigrant 
visa numbers under the third employment -based skilled worker 
category were used during the fiscal year 1993. Immigrant visa 
numbers remain available for CSPA beneficiaries during October 
1993, and the Service will continue to grant adjustments of 
status for eligible CSPA applicants.
 
        I trust this response has explained the reasons the Service 
is unable to waive quota restrictions or establish the type of 
family fairness program discussed in your letter.
 
Sincerely
 
James A. Puleo
 
Acting Executive Associate
Commissioner, Operations

---

From: [email-masked]
Date: Wed, 17 Nov 93 09:40:41 CST

Finally INS responded our petition letter, although there is nothing new.

The response clarifies the out-of-status dependents should go abroad for interviews ( it is
good to see that they are able to go to a third country).  But surprisingly a friend of mine who filed I-485
for her out-of-status dependent in July got an interview appointment scheduled on Dec.12 at
Newark, NJ.  Any comments of this case?

Frank.