Subject: INS cable #4:lads' status

From: [email-masked]
Date: Mon, 2 May 94 15:04:15 CDT

Hi there!

I found the INS wire #4, which is about the J-2, F-2's status
after their CSPA principles filed the PR applications with INS.
Let's share it.

LX

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

          DATE:     August 2, 1993

          TO:       Chinese Nationals Nationwide

          FROM:     Dr. Haiching Zhao

     The following is the INS cable sent out today by INS central
to local offices nationwide.  We enclosed it here for your
reference.

_________________________________________________________________

USINS

AUG 2, 1993

Re:  Chinese Student Protection Act of 1992 (CSPA)

This is CSPA Wire #4.  (CSPA Wire #3 has been delayed and may be
received after CSPA Wire #4.)

1.  Clarification of interview criteria contained in memorandum of
July 14, 1993, HQ 739. 3-C:

In a memorandum dated July 14, 1993, from the office of
examinations with service-wide dissemination, it was stated that
all CSPA adjustment of status applications filed by persons who had
not applied for deferred enforced departure (DED) should be
referred by the service centers to the local offices for interview.
This statement was not (repeat not) correct.  CSPA adjustment of
status applications will not (repeat not) be deferred for interview
solely because the Applicant has not applied for DED.

The correct statement is:  CSPA adjustment of status applications
filed by persons who clearly failed to maintain lawful immigration
status prior to October 9, 1992 (Enactment of CSPA), and who have
not established that they applied for deferred enforced departure
(DED) or other Executive Order 12711 benefits should be referred by
the service centers to the local offices for interview.

2.  Spouses and children filing for adjustment of status as
accompanying of following to join derivative family members:

The Chinese Student Protection Act (CSPA) provides no direct
benefits for spouses and children of principal applicants, if the
family member is unable to meet this requirements of the CSPA.
However, Section 203 (d) of the INA provides that a spouse or child
as defined in subparagraph (A), (B), (C), (D), or (E) of Section
101 (b) (1) shall, if not otherwise entitled to an immigrant status
and the immediate issuance of a visa under subsection (a), (b), or
(c), be entitled to the same status, and the same order of
consideration provided in the respective subsection, if
accompanying or following to join, the spouse or parent CSPA
beneficiaries adjust status under the third employment-based
skilled worker category.  Therefore, derivative spouses and
children who do not meet the CSPA requirements may apply for
adjustment of status or immigrant visa issuance under the third
employment-based skilled worker category as accompanying or
following to join derivative family members when the CSPA
principal's priority is reached and a visa number becomes
immediately available for the family member.

Immigrant visa numbers will be current or immediately available
during August 1993 for all persons under the third employment-based
skilled worker classification, except those who must be charged to
the philippine per-country quota.  Therefore, all eligible spouses
and children of CSPA applicants may apply for derivative adjustment
of status during August 1993.

Note that the special waivers and benefits provided under the CSPA
have not (repeat not) been made available to derivative spouses and
children who are applying for adjustment of status under the
derivative third employment-based skilled worker classification.
This means that these family members must meet all the usual
adjustment of status requirements applicable to derivative
employment-based preference aliens, including the provisions of
Section 245(c) of the Act.  These family members must be in lawful
immigration status at the time of filing, may not have been
employed without authorization, must have continuously maintained
lawful immigration status, and meet all other applicable
requirements.  An applicant with derivative nonimmigrant status       <<<<
(such as F-2 or J-2 status) will not be considered to have failed     <<<<
to maintain lawful immigration status for the purposes of section     <<<<
245 (c) of the Act solely because the principal alien properly        <<<<
filed a CSPA adjustment of status application.                        <<<<

Eligible derivative family members may apply for adjustment of
status by filing the usual form I-485 and related forms at the
local service office having jurisdiction over the applicant's place
of residence.  (These applications are not to be accepted at the
service centers.)  They must also present a copy of the service
center issued receipt (Form I-797) showing that the CSPA
principal's application for CSPA adjustment of status has been
accepted for processing at the service center and evidence of the
relationship to the CSPA principal.  Eligible derivative family
members may apply for adjustment of status even though the CSPA
principal's adjustment application has not been approved.  The
local office may, if it appears necessary, verify the validity of
the receipt by accessing claims, fares, CIS, and/or the service
center's tiers system.  Required evidence of relationship would be
the same as that required of any other derivative adjustment
application, i.e. documentation of birth, marriage, divorce, death,
adoption, etc.

     The class of adjustment codes for these family members are E3-
9 for spouses and E3-0 for children.  The priority data is the
principal's CSPA priority date.

     Note: although derivative adjustment applications may be
accepted based upon a showing that the principal has a pending CSPA
adjustment application, adjustment applications filed by derivative
spouses and children may not be approved until after the CSPA
principal's status has been adjusted.

     Signed

     JAMES A. PULEO

     ACTING EXECUTIVE ASSOCIATE COMMISSIONER FOR OPERATIONS, INS