This information is made available by China News Digest (CND.ORG) For more related information, see CND.ORG (IP: 132.249.229.100) directory pub/InfoBase/pacakes/qanda by anonymous ftp. CND-US 06-07-1993 cnd-us@cnd.org =============================================================================== Questions and Answers on President Bush's April 11, 1990 Executive Order -------------------------------- Page 1 of 19 -------------------------------- Information for Students and Scholars from the People's Republic of China, Regarding President Bush's April 11, 1990 Executive Order On April 11, 1990 President Bush issued an Executive Order directing the Immigration and Naturalization Service (INS) and the Department of State to provide certain protections for nationals of the People's Republic of China. The executive order incorporates many of the benefits granted on November 30, 1989 to PRC nationals. The Executive Order also includes several new provisions. The main points of the Executive Order are as follows: A. The deferral of enforced departure (DED) has been extended until January 1, 1994 for PRC nationals and their dependents who were in the United States on or before April 11, 1990. -------------------------------- Page 2 of 19 -------------------------------- B. PRC nationals present in the United States on or before April 11, 1990 are provided with: 1. an "irrevocable" waiver of the two-year home-country residence requirement that must be exercised by January 1, 1994; 2. employment authorization through January 1, 1994; 3. maintenance of lawful status for the purpose of changing nonimmigrant status or adjusting to permanent residency.(Note: This benefit is only available to those PRC nationals who were in a lawful nonimmigrant status on or after June 5, 1989.) C. The requirement that PRC nationals hold a valid passport while in the United States is waived until January 1, 1994. In addition, INS and the Department of States will process and provide necessary documents to allow travel abroad and re-entry into the United States for PRC nationals. -------------------------------- Page 3 of 19 -------------------------------- QUESTIONS AND ANSWERS about the Executive Order 1. I entered the United States after June 5, 1989. I have a friend who entered the United States after December 1, 1989. Do both of us benefit from the executive order? Yes. All PRC nationals who entered the United States by April 11, 1990 (the date of the order) benefit from the provisions of the executive order. Among other things, these benefits include the waiver of the home-country residence requirement and employment authorization. (See questions 2&7). -------------------------------- Page 4 of 19 -------------------------------- 2. How do I get a waiver? You may obtain your waiver of the home-country residence requirement by filing an application for a change of nonimmigrant status or an application for adjustment to permanent residence. Only a reasonable or "nonfrivolous" application will be accepted for this purpose; i.e., an application to change to F-1 status by someone who has not been admitted to a school for full-time study and who has not been issued an I-20 form would not qualify as reasonable, and therefore would not receive a waiver. If reasonable application is filed, the waiver is granted. In addition, an application for adjustment of status to permanent residence, if qualified, grants a waiver. -------------------------------- Page 5 of 19 -------------------------------- 3. When I get my waiver, do my spouse and children get a waiver too? If they are dependents on your visa and in J-2, F-2, or H-4 status, their waiver is granted with yours. However, they must be included as part of your application for a change of status or for permanent residence. Dependents who are in F-1, J-1, or H-1 status, must file separate applications. -------------------------------- Page 6 of 19 -------------------------------- 4. What will I need to do to apply for a change of nonimmigrant status? You should continue to maintain your current status and file an application for a change of nonimmigrant classification on INS Form I-506 with accompanying documents and the $70 fee. On item 13 of the I-506 form you should note that you are a PRC national and eligible to apply for a change of status and to receive a waiver. You should also include documentation that shows you were in the United States on or before April 11, 1990. Remember that persons subject to the two-year home-country residence requirement must file before January 1, 1994 in order to obtain a waiver of the requirement. -------------------------------- Page 7 of 19 -------------------------------- 5. Is it any easier to change nonimmigrant status in the United States because of the executive order? No. All of the established regulations and procedures remain in place for change-of-status applications. However, as stated above, for persons subject to the two-year home-residence requirement, and who qualify to apply the home return requirement is waived if one files to change to another nonimmigrant status before January 1, 1994. (Note: PRC nationals who were not in lawful status prior to June 5, 1989 are disqualified from filing for a change of nonimmigrant status within the United States.) -------------------------------- Page 8 of 19 -------------------------------- 6. Is it any easier to get permanent residence because of the executive order? It is still necessary to be sponsored for permanent residence through a family member or an employer. The executive order does provide some special exceptions to the immigration laws, such as a waiver of the two-year home- country residence requirement. The laws governing permanent residence are complicated and it may be advisable to consult with a qualified immigration attorney before filing an application. -------------------------------- Page 9 of 19 -------------------------------- 7. How do I get permission to work? An application for evidence of work authorization is made on INS form I-765 (Application for Employment Authorization). When completing the application INS has advised that on page three of the form you check box A-11 under the heading "Group A". You should mark "no appropriate category; PRC executive order work permission" on the form. It is not necessary to prove economic necessity and the normal fee of $60 is waived. Applications must be filed in person at the local INS office having jurisdiction over your place of residence. 8. As an F-1 or J-1 student, does this mean I can work full- time? No. Previous instructions from INS on this point remain in effect. To maintain F-1 or J-1 student status, students may only work part time when school is in session and full time only during annual vacation periods. -------------------------------- Page 10 of 19 -------------------------------- 9. Will my spouse who is in F-2 or H-4 status be able to work? Yes. As long as your spouse entered the United States on or before April 11 1990, he or she may apply for evidence of work authorization. The application procedure described in question 7 applies. Full-time employment is permitted. 10. I obtained work permission under the initial presidential directive of November 30, 1989, but it expires on June 5, 1990. What do I do now? Originally, the employment authorization granted to PRC nationals was limited to June 5, 1990. However, the April 11 executive order extends this permission until January 1, 1994. To renew your work permission, follow the procedures outlined in question 7. -------------------------------- Page 11 of 19 -------------------------------- 11. If I change or have changed to F-1 status, how soon can I get practical training employment authorization? Under F-1 practical training regulations one must have pursued a full course of study for nine months before practical training is authorized. INS will count the number of months immediately preceding the change to F-1 status during which you followed a full course of study. For example, if you were in J-1 student status pursuing a full course of study before changing to F-1, the time you spent as a J-1 student counts toward the nine months required for practical training. The same would apply if you were in another nonimmigrant status and were pursuing a full course of study immediately prior to changing to the F-1 status. It is important to note that if you held a student status in the past, but not immediately before changing to F-1, you will not be able to count that time toward the nine- month period. -------------------------------- Page 12 of 19 -------------------------------- 12. What does it mean that the requirement for a valid passport is waived? Under immigration regulations one must have a valid passport to be granted an extension of stay, change of nonimmigrant classification (for example J-1 to F-1), or other benefits. Chinese nationals may apply for and be granted these benefits by INS even though their passports have expired, have been lost, are being held by the Chinese embassy, or are otherwise unavailable. This passport waiver continues until January 1, 1994. 13. If I do not have a passport or if my passport has expired can I travel to other countries? See the responses to question 14 through 17 below. -------------------------------- Page 13 of 19 -------------------------------- 14. How will INS and the Department of State facilitate travel abroad and re-entry into the United States for PRC nationals? PRC nationals who wish to travel outside the United States and return may file for "advance parole" at their local INS district office. To apply, you must send a letter to the INS district office director describing the reason for your trip abroad and your need for advance parole (see question 15 below). You must include three passport-size photographs with your letter. If your request is approved, INS will issue you Form I-512 to which your photograph will be attached. In addition, the Form I-512 will have a special notation permitting you to re-enter the United States in the same status you had upon departure. The form will also be marked with the following phrase: "The holder of this document will be re-admitted under the President's Executive Order 1222711 of April 11, 1990." There is a $65 fee for the advance parole application or approval. -------------------------------- Page 14 of 19 -------------------------------- 15. What does advance parole allow me to do? Advance parole preserves your right to leave the United States and return in same status you had when you left. No visit to a U.S. embassy or consulate or visa stamp in the passport is required for your return to the United States. For example, if you were a J-1 student and changed to F-1 status, you may apply to INS for advance parole to leave the United States and return in F-1 status without a new or changed visa stamp in the passport. -------------------------------- Page 15 of 19 -------------------------------- 16. Should I apply for advance parole now so that I have it available when I want to travel? No. Advance parole has a specific period of validity. The filing of an advance parole request requires that one have a definite itinerary for travel abroad, such as set departure and return dates, and a compelling need for travel. It is normally granted only for the specific period that you must be out of the United States. 17. Does advance parole allow me to travel to other countries and assure my admission to those countries? Not necessarily. Each country in the world decides which persons it will admit within its borders and under what conditions and for what lengths of time those persons are admitted. Advance parole confirms your right to be readmitted to the United States, but it does not and cannot affect the visa issuing rules of other countries. -------------------------------- Page 16 of 19 -------------------------------- 18. If I travel to another country may I apply for and obtain a visa to re- enter the United States? You may apply for a visa at a U.S. embassy if you have the proper supporting documents. However, nothing in the Executive Order requires the U.S. consular officer to issue a visa. This means that even though you apply, the consular officer may refuse to grant the visa. Thus, you may wish to obtain advance parole before leaving the United States so that you can be sure of being able to return. 19. I was out of status before June 5, 1989. How do I benefit from the Executive Order? You may take advantage of deferred departure and work authorization, both of which are extended to January 1, 1994. The executive order does not permit you to regain your nonimmigrant status while in the United States. -------------------------------- Page 17 of 19 -------------------------------- 20. I was in status on June 5, 1989, but am out of status now. How do I benefit from the Executive Order? Under the executive order, you will be considered to have maintained your lawful status for certain specific purposes. These include application for a change of nonimmigrant status or adjustment to permanent residence. Consequently, you may apply for a change of status or for permanent residence (if you are eligible under existing laws and regulations) at any point before January 1, 1994. 21. If my current nonimmigrant status is expiring and I have no way to extend this nonimmigrant status or change to another one, what will happen? The INS has been directed to send you a notice advising you that deferred departure and work authorization are available to you until January 1, 1994 At or near the end of your authorized stay in the United States you may apply to INS for these benefits. -------------------------------- Page 18 of 19 -------------------------------- 22. What happens if my stay expires and I stay in the United States, but do not contact INS? You will not have evidence of work authorization and no employer may hire you without breaking the law. If, before January 1, 1994, INS discovers that you are still in the United States, it will follow the notification procedures described in question 21 above. -------------------------------- Page 19 of 19 -------------------------------- 23. I filed an application for asylum, but now I want to withdraw that application and return to nonimmigrant status. How can I do that? INS policy provides that an application for asylum does not violate nor terminate an an individual's lawful nonimmigrant status. Consequently, if you decide to withdraw your asylum application or if your application was denied by INS, you are still considered to be in your nonimmigrant status. This only applies, however, if you have not exceeded your authorized period of stay in the United States and have not otherwise violated your nonimmigrant status (i.e., by working illegally). ===============================================================================