Subject: CND-US CSPA Information Exchange Package (VII), June 16, 1993

From: [email-masked]
Date: Wed, 16 Jun 1993 01:08:14 -0500

+-+-+-+-+-+-+-+-+-+   C h i n a   N e w s   D i g e s t  +-+-+-+-+-+-+-+-+-+

                               (US Regional)

 Information Exchange (VII): About Preparing to Apply for U.S. PR Under CSPA

                          Wednesday, June 16, 1993

+--------------------------------------------------------------------------+
| CND-US, normally 1 or 2 issues a week, is a supplement to CND-Global and |
| has  basically no overlap with the daily news.  CND-US provides in-depth |
| information concerning Chinese students/scholars in the United States.   |
+--------------------------------------------------------------------------+

[Editor's Note: The following is collected and edited from the information
                CND received or saw on the network and elsewhere, we believe
                it is of information nature.  We forward it to concerned
                readers as a timely reference service.  However, some of the
                information may need to be verified (it is beyond our
                capacity to do so).  Please consult your lawyer and use
                your own discretion before you use the information printed
                in this package to make decision(s) on related matter.

                Also, please refer to CND-US CSPA Information Exchange Packages
                (I) thru (VII) for more info. Many questions have been answered
                and/or discussed in the previous issues.

                Related info is available from CND CSPA InfoBase, by anon
                ftp to CND.ORG (IP: 132.249.229.100) dir pub/InfoBase/CSPA

                Some of the e-addresses/names/ID's are withheld per sender's
                request, except for those already posted to public network.

                We welcome readers sending their info/experience to us to let
                others to share, request for anonymity will be honored.

                Due to our limited manpower resource of volunteers, we regret
                that we may not be able to answer questions from readers.

                CSPA = Chinese Student Protection Act of 1992, U.S.A. ]

Table of Contents                                                 # of Lines
============================================================================
 Information Exchange (VII): About Preparing to Apply for U.S. PR Under CSPA

1. Supplement to "Highlights of IFCSS CSPA Info Center Newsletter No.4" . 30
2. INS Headquarters Orders Local Offices Not to Refuse Request for Forms  75
3. Some CSPA-Related Questions and Answers and Discussions from/by CSS . 230
4. From Congress Representative George W. Gekas's Office (Dist. 17, PA)
   Information Sheet for Chinese Student Protection Act
   Detail Questions and Answers on Chinese Student Protection Act ...... 590
============================================================================

[Note from CND:  We have received many messages from readers that request
                 CND to relay IFCSS CSPA Info Center Newsletters the same
                 day the IFCSS releases them.  We regret to say that we are
                 unable to do so because CND is NOT a part of the IFCSS,
                 therefore we do not have direct access to the IFCSS CSPA
                 Info Center Newsletters.   Besides, CND volunteers need to
                 spend a great amount of their precious time in summarizing,
                 translating and typing when paper copies of the newsletters
                 become available.
                 However, as always, CND will do her best to keep our readers
                 promptly informed.]

----------------------------------------------------------------------------
1. Supplement to "Highlights of IFCSS CSPA Info Center Newsletter No.4" . 30
----------------------------------------------------------------------------
Summarized and Translated by: A CND Volunteer, June 15, 1993

[Editor's note: The major info of the newsletter was carried in yesterday's
                CND-US CSPA Package VI, the Newsletter No.4 is dated June 10]

a. On June 8, INS Headquarters informed IFCSS that it had issued directives
to local INS offices that they should provide forms to CSS applicants.

b. The questionnaire published in the Newsletter No.3 was for reference only.

c. INS confirms that those who legally entered U.S. before June 4th, 1989
but afterwards fell out of status are also covered by the CSPA.  Those who
illegally entered U.S. won't be covered by CSPA, even if they obtained an
I-94 card with a legal entry on advance parole afterwards.

d. If a birth certificate is not available, the applicant may use other
documents as substitute.  However, INS has not elaborated this point so far.
IFCSS suggests CSS to submit copies of the passport sheets that bear the
birth date and photos along with application materials.

e. Now, CSPA Info Center is closely heeding the signs, once the implementation
details are available, the IFCSS CSPA Info Center will first (You1 Xian1)
inform those who registered with the Info Center, about when/where/what to
submit to INS.

f. In order to provide best service to members of CSPA Info Center, the
Center have stopped accepting new members, please tell the Center you are a
member when you call, so that phone calls can be handled promptly.

----------------------------------------------------------------------------
2. INS Headquarters Orders Local Offices Not to Refuse Request for Forms  75
----------------------------------------------------------------------------
>From: IFCSS HQ <[email-masked]>   Tue, 15 Jun 1993 16:50:21

IFCSS Headquarters News Release No. 4142         June 15, 1993
INS HQ ORDER LOCAL OFFICES NOT TO REFUSE REQUESTS FOR FORMS

Dear fellow Chinese Students and Scholars:

     The IFCSS HQ has noticed that local INS offices have acted differently
to the requests by CSS for adjustment of status application forms. In some
areas, the forms are distributed smoothly while in other areas the local
offices completely rejected the requests. This has caused nation-wide
confusion and anxiety. Some students even spent several hundred dollars on
the application form package.

     The HQ has reported this problem to INS HQ officers. Just a few minutes
ago, the INS HQ has notified the HQ that a cable has been sent to local INS
offices. According to the Cable, local offices "may not refuse" the requests
for adjustment of status forms by Chinese nationals.

     Another Notice: Some local INS offices requires the showing of passports.
Do not forget to bring it with you.

     The text of the Cable is as follows:

TEXT OF INS ORDER:
-----------------

USINS
Action:                     Routine
Security Classification:    UNCLAS
Date:                       June 14, 1993
File Number:                CO 245-C
Contact:                    XXXX XXXX
Phone:                      XXX XXXX

RE:  CHINESE STUDENT PROTECTION ACT OF 1992 (CSPA)

     This office has been receiving numerous inquiries from the public
and field offices concerning implementation of the CSPA.

     The CSPA is not the sole means through which a Chinese alien may
apply for adjustment of status; potential CSPA applicants may apply for
any other benefit(s) for which they believe they may be eligible. Local
service offices may not refuse to provide adjustment of status packages
                ^^^^^^^^^^^^^^
and other application forms to Chinese applicants.

     This office has also received unsubstantiated reports that some
offices are furnishing applicants with written instruction sheets
listing evidence requirements for CSPA adjustment applications. These
types of instruction sheets should not be furnished to the public, since
the application requirements will not be finalized until the rule is
published in the federal register.

     The following information concerning the CSPA may be furnished to
the public:

     The Immigration and Naturalization Service (Service) draft rule
implementing the CSPA has been forwarded to the Department of Justice
and the Office of Management and Budget for their review and clearance.
Until these offices have completed their review and clearance and the
rule is published in the "Federal Register," the Service will be unable
to provide specific information concerning application forms and the
application process. The Service is aware of the need to implement the
CSPA as soon as possible and has asked that these reviews be
expeditiously conducted.

     Potential CSPA applicants are urged not to file their applications
before the rule is published. Submission of an incomplete application or
submission to the incorrect office may ultimately delay the applicant's
adjustment of status.

(signed)
James A. Puleo
Acting Executive Associate Commissioner

----------------------------------------------------------------------------
3. Some CSPA-Related Questions and Answers and Discussions from/by CSS . 230
----------------------------------------------------------------------------
Source: Messages posted to various CSS related mailing lists/networks
Collected and Compiled by: Bo Xiong, 6/15/93

[Editor's Note: The questions were answered by CSS networkers and are thus
                not necessarily authoritative.  Please consult your lawyer
                and use your own discretion when you make your decision(s).
                Also, please refer to CND-US CSPA Information Exchange Packages
                (I) thru (VI) for more info.  Many questions have been answered
                and/or discussed in those issues.]

Q: From: MX <[email-masked]>  Tue, 15 Jun 1993 01:14:22
Subject:      I-468 form

What is this form (I-468) for? Is it required?

A: From: ****@****.edu  June 15

I-468 Form is the INS form for "Data Collection for Alien Documentation,
Identification & Telecommunication System (ADIT)".  It's basically similar
to INS Form G-325A.

According to the IFCSS CSPA-Center Newsletter No.4, translated by CND in
CND-US CSPA Info Exchange Package VI (June 15), it might be required.

--- --- ---

Q: From: [email-masked]

     My friend used to hold a H1B visa and he recently switched to another
company. Instead of applying for a new H1B visa, he used his "Employment
Authorization Card (I-688B)" for the new position. The question is what
his "current INS Status" in form I-485 is. Does he have to apply to enter
DED program explicitly?

A: From: ****@****.edu  June 15

He most probably has entered Deferred Enforced Departure status specified
in Bush's April 11, 1990 Executive Order, but he is still eligible for the
benefit of CSPA.

--- --- ---

Q:From: [email-masked] Tue Jun 15 10:56 CDT 1993

I am wondering if the J-1 holders have to adjust their status into F-1 or
other non J category and get the waiver of two year home country residence
from INS before they can be qualified for the PR application.

A: From: Lin Shi <[email-masked]> June 15

> Hi there,  in one of your postings about A# you mentioned the official 2-year
> waiver letter.  That made me nervous.  Because I just changed my status from
> J-1 to F-1 but the INS just sent me back my copy of the I-20 and the I-94, and
> there was no letter at all--whatever kind of letter.  So my question is: Do I
> have to get a official letter for the 2-year requirement to be waived?  Should
> I make inquiry again?

Don't be nervous. I asked around me and it seems that there might be quite a
number of people who did not get a waiver letter upon changing of status, esp.
from J to F. The purpose of the waiver was to allow those who got out of J to
further adjust their status, by normal procedure. To do that the normal way
a formal waiver was necessary. Now that everyone of you are adjusting under
a special package which I believe provides the waiver in itself.

Again, you guys need to wait to see what the implementation procedures say on
these questions: waiver, birth certificate, place of filing, DED, etc., etc.

[Editor's note: CND-US had some extensive discussions on this in its Q&A
                serious in 1990/1991, the series is available by anonymous
                ftp in CND.ORG, dir  pub/InfoBase/packages/qandq]

--- --- ---

Q: From: Chris Hu <[email-masked]>   June 15
Subject:      Place of filing.

I finish my school in NY and now moved to CA and so far I haven't found a job
yet. What is the best and way to file application under CSPA ?
Is that necessary to go back to the east coast to file? Does it take more
time to process than people have been in CA and their records are already in
CA? How about while filing you move to another states?

A: from: ****@****.edu  June 15

According to INS reg's for applicants in normal process, you should file
with the INS Regional Center that oversees the area in which you currently
live, i.e., in California.

--- --- ---

Q: From: [email-masked]  Date: Sun, 13 Jun 1993 23:55:25 PST

        I obtained a Chinese "Resident certificate (Shen1 Fen4 Zheng4)
before I came to the US and have kept it with me since then.  Do you think
such a certificate, if translated and notarized here, could used as a birth
certificate? (we all understand that the  Shen1 Fen4 Zheng4 or Hu4 Kou3 Ben3
are important official certificates for birth day and birth place for us in
mainland China).

A: From: ****@*****.edu  June 15

Sure it can be a proof of your birth, there have been many discussions and
Q&A's in CND-US CSPA Info Exchange Packages I-VI.

--- --- ---

Q: From: ****@****.acns.fsu.edu Tue Jun 15 02:37 CDT 1993

I have a different date of birth in my passport and my birth certificate
(year and month are same, day is different) which birth certificate is a
true one.  However, I did use the Chinese government issued wrong one in
all my forms and license these years here in terms of consistency.  Is
this a potential problem for me when I present a inconsistent date of
birth in my personal documents, passport and birth certificate?  Which date
of birth I should use when I fill the INS forms?  Could someone help me?

A: From: ****@***.edu  June 15

You should use the one on your birth certificate if it is more authoritative
(such as issued by the PRC Notary), and attach a note of explanation to it.
The difference on the day of birth (not month, not year) shouldn't matter
that much.

--- --- ---

Q: From: Zhengzhi Wang <[email-masked]>

  >Q: From:  ****@***.zoo.uga.edu Sun Jun 13 14:05 CDT 1993

  >1.  I went back to China with Advanced Parole in 1991. I returned the
  >Advanced Parole to immigration officer when I reentered the U. S. so that
  >I do not have the nonimmigrant visa number at hand. But form I-485
  >requires to give that number and the date the visa was issued. How could
  >I do?

  >A: From: *****@****.edu June 14

  >1. Write N/A and put a note "with advance parole on F-1 (or J-1 or H-1 or
  >other) status".

I have questions about the issue :
**There was no nonimmigrant visa number on the Advanced Parole document.
**An immigration attorney of the Office of International Students and
Scholars on our campus advised that one should use the information of
the previous nonimmigrant visa, which was issued right before s/he entered
the US and obtained the current I-94 number at the first time ( since
later either changing status inside of the US or reentering the US with
advance parole would not change the previous I-94 number (admission #) ).

A: From: *****@****.edu  June 15

You are right, besides suggested "N/A" and "with advance parole", add another
note with the latest visa number.

--- --- ---

Q: From:  ****@***.cc.nd.edu Tue Jun 15 07:41 CDT 1993

I was fined $65 for 'fishing without fishing license'. Should I fill this
in I-485? If I do so, does it affect my application for adjustment to
a PR under CPSA? Or, it's better to ignore it? Thanks.

A: From: ****@*****.edu  June 15

Many people got traffic their citations (such as speeding), simply enter
"traffic citation" (offense) and "ticket" (result) in your I-485, it will not
affect your application.  The same for your case, if it's something like
parking ticket, you can completely ignore it, if it's a citation, you will
have to report it in I-485.

--- --- ---

Q: From: [email-masked]   Jun 15 13:49 CDT 1993

I have certain questions that I wish somebody in the net could answer them
for me.  (1) I got a birth certificate from a Notary Public Office in China.
The notary's signature is shown only on the Chinese page, not in the
English translation page, although these two pages are bound together and
stamped with the Office's embossed stamp.  I am wondering whether I have to
have it notarized in the U.S.A.?  (2) the certificate I have was notarized
by the notary public office in the city that I worked, but not the city I
was born.  It is OK? since I have read a message on the net saying that
the certificate should be issued by the notary office in the birth place.

A: From: ****@****.edu  June 15

What you have is the most authoritative PRC Birth Certificate (same format
nation-wide), and it doesn't have to be issued by your birth place gov't.
I used the exactly the same kind of birth certificate as yours and passed
the INS review two years ago.

--- --- ---

Q: From [email-masked] Tue Jun 15 15:56 CDT 1993

Hi, I read a lot of posting talking about A#. But nobody mentioned that
in our passports (at least my wife's and mine), there is an A# which was
written when I entered US by a custom officer. What does this number mean?

A: From: *****@****.edu  June 15

You missed one point: the handwritten "A#" on your passport is exactly the
same as the "Admission Number" on your I-94 card, it's not the Alien
Registration Number as discussed in yesterday's CND-US CSPA Info package.

--- --- ---

Q/A: From: Lin Shi <[email-masked]>  Jun 15 17:01 CDT 1993
Subject:      Re: a question on photo

> I have a question about the immigration photo.  For a person who usually
> wears eye glasses, should he take the photo with the eye glasses or without
> the eye glasses?  Are there any rules on this?  Thanks for any info.

The INS instructions for photos did not say anything about eye glasses.
The instruction from the US Embassy in Guangzhou, China did say that you must
not wear an earring (on your right ear) or a hat, and that no shadow may fall
on the (right) ear.

A-2: From: ***@***.edu June 15

Yes, you should have your photo taken with your glasses off, to avoid possibly
redoing requested by INS, this happens sometimes.

A-3: From: ********   June 15

        Just a token on the photo issue. As fas as I know, you cannot wear
eye glasses. Not even contact as it may change the color of your eyes. WHen
I took the photo for the Green Card, I was told to take my eye glasses off.

----------------------------------------------------------------------------
4. From Congress Representative George W. Gekas's Office (Dist. 17, PA)
   Information Sheet for Chinese Student Protection Act
   Detail Questions and Answers on Chinese Student Protection Act ...... 590
----------------------------------------------------------------------------
[Forwarder's Note: The following material is keyed in manually based on the
                   copy obtained from the source mentioned.  No responsibility
                   is assumed by the typist for any typographic errors.]

1. Information Sheet for Chinese Student Protection Act
-------------------------------------------------------
>From: Congress Representative George W. Gekas's Office (District 17, PA)
Date: 6/11/93
Typed in and Forwarded by: Huijie

According to the Immigration and Naturalization Service, Permanent Resident
applications (I-485) cannot be submitted until the regulations have been
printed pertaining to this new law.  In other words, do not submit your
application until you are sure INS is ready to accept the application.

We have been told there will be an additional form you must submit.  The INS
office does not have these forms and are still in the process of developing
the form for you to submit with the I-485.  We do not know how much this
form will cost or how much you will be charged for the I-485 application.

To order forms, please call 215-656-7145.  You may also visit the INS office
in Philadelphia.  They are located at 1600 Callowhill Street.

Once the forms are ready to submit, they may be filed at the address listed
below.  You MAY NOT submit the forms at the local office in Philadelphia.

          Immigration and Naturalization Services
          Eastern Service Center
          75 Lower Welden Street
          St. Albans, VT 05470-0001

2. Questions and Answers on Chinese Student Protection Act (P.L. 102-404)
-------------------------------------------------------------------------
>From: Congress Representative George W. Gekas's Office (District 17, PA)
Date: 6/14/93
Typed in and Forwarded by: Huijie

Part I. General Questions
-------------------------

1. Are there any lawful entry requirement?  ie: will those who entered
without inspection (EWI) be eligible to adjust under the CSPA?

The Chinese Student Protection Act (CSPA) states that the alien must apply
for adjustment of status under section 245 of the Act.  Section 245 (a) of
the Act states:

     The status of an alien who was inspected and admitted or paroled into
     the United States may be adjusted by the Attorney General, in his
     discretion and under such regulations as he may prescribe, to that of
     an alien lawfully admitted for permanent residence if (1) the alien
     makes an application for such adjustment, (2) the alien is eligible to
     receive an immigrant visa and is admissible to the United States for
     permanent residence, and (3) an immigrant visa is immediately available
     to him at the time his application is filed.

The CSPA does not contain any provisions which would exempt an alien from
the "inspected and admitted or paroled" requirements of section 245 (a) of
the Act.  Therefore, an alien who entered the U.S. without inspection (EWI)
will not be able to adjust under the CSPA.

  a. If not eligible to adjust in the U.S., can the EWI derive any benefit
     from this act and be interviewed at a consular post abroad?

     Section 2 (a) of the CSPA states:

          (a) In General. - Subject to subsection (c) (1), whenever an
          alien described in subsection of (b) applies for adjustment of
          status under section 245 of the Immigration and Nationality Act
          during the application period (as defined in subsection (e)) the
          following rules shall apply with respect to such adjustment ...

     The CSPA provides specific benefits for certain persons who will adjust
     status in the U.S.  It does not extend benefits to an alien who must
     seek an immigrant visa.

  b. If not eligible to adjust status, would such an EWI PRC national become
     eligible if he/she obtained advanced parole to travel and then returned
     under the parole status?  If so, any dates by which the person must
     have obtained the advance parole or the re-entry?

     The Service has been facilitating the travel outside the U.S. of
     Executive Order (E.O.) nationals of the People's Republic of China
     (PRC) by issuing Forms I-512 with special notations to permit the PRC
     national to come back into the U.S. to resume the same status he or she
     had immediately prior to departure.  Outstanding instructions to
     officers performing inspectional duties have been not to parole these
     PRC nationals upon their return to the U.S.  An E.O. PRC national who
     had initially entered the U.S. without inspection would have been given
     an I-94 marked "DED until January 1, 1994" at the port-of-entry upon
     return to the U.S. with an I-512 and would not be considered to have
     been paroled into the U.S.

     In individual cases, a PRC national who initially entered the U.S.
     without inspection may have been paroled into the country upon return
     from a trip abroad.  The PRC national's Form I-94 should be reviewed
     to determine whether it contains notations indicating the individual
     was paroled into the U.S. or whether it shows that the person was allow
     to come back into the country to resume DED status.

     An alien who has been paroled into the U.S. would meet the section 245
     (a) "inspected and admitted or paroled" requirement.  A person who was
     allowed to come back into the country under the Deferred Enforced
     Departure (DED) program to resume the same EWI "Status" he or she had
     upon departure from the U.S. would not meet this 245 (a) requirement.

2. Are we correct that one need not have applied for DED status to be
eligible to adjust under CSPA?

The CSPA does not require the alien to have applied for DED status.  PRC
nationals who have not applied for DED status may be eligible to adjust
under CSPA.  Also, these PRC nationals are not limited to adjustment of
status under the CSPA.  PRC nationals who were in lawful status any time on
or after June 5, 1989, should evaluate their individual circumstances and
qualifications to determine whether adjustment under the CSPA, adjustment
under other provisions of law, or immigrant visa issuance abroad would be
available and most beneficial to them and to their derivative family
members.

3. Are we correct that those who entered prior to 4/11/90 (or 6/5/89) who
fell out of status are also covered?

Section 2 (a)(5) of the CSPA provides that section 245 (c) of the Act should
not apply to aliens eligible for the CSPA adjustment of status benefits.
Therefore, an otherwise eligible CSPA alien would not be precluded from
adjusting status solely because the alien is not in a lawful immigration
status or had failed to maintain status in the past.

4. Are we correct that those in exclusion or deportation proceedings are
also covered?

Simply being under exclusion or deportation proceedings would not preclude
a CSPA alien from adjusting status.  However, they underlying reason that
the alien was placed in proceedings may possibly be a basis for
ineligibility.  For example, an alien who entered the U.S. without
inspection does not meet the requirements of section 245 (a) and cannot
adjust status.  Also, the adjustment would be denied if the alien is
excludable under any applicable provision of section 212 (a) of the Act and
the ground of excludability has not been waived.

In the case of an alien who is under deportation proceedings or who has been
found by an immigration judge to be deportable, the immigration judge has
jurisdiction over the application for adjustment of status.  The immigration
judge would have the authority to grant, deny, or remand the adjustment
application to the District Director.

5. Are we correct that those born in Mainland China holding Hong Kong C.I.
are also covered?

An otherwise qualified native of the PRC would holds a Hong Kong Certificate
of Identify (C.I.) may be eligible for the benefits of the CSPA.

6. Are those born in Mainland holding Taiwan passports covered?

Although the U.S. government recognizes the government of the PRC to be the
government of all of China, section 3303 (b)(b) of Title 22 of the U.S. Code
provides that Taiwan is to be considered as separate independent country for
purposes of U.S. immigration law.  Therefore, liens who are citizens of
Taiwan will not be considered to be nationals of the PRC for purposes of the
E.O. (unless they are derivative family members of a qualified PRC
national), even if such aliens are considered by the government of the PRC
to be citizens of the PRC.

7. Are there any physical presence in the U.S. requirement or absence
restriction for places other than to the PRC?  How are the terms "resided
continuously" and "brief, casual, and innocent absences" being defined?

There are no physical presence requirements or absence restrictions in the
CSPA beyond the limitation upon the amount of time the alien may have spent
in the PRC after April 11, 1990, and prior to the enactment of the CSPA.

The Service anticipates that the definitions of the terms "resided
continuously" and "brief, casual, and innocent absences" for the purposes
of determine eligibility under the E.O.  Such definitions will be likely to
conform with other Service definitions of these phrases, although they may
not necessary be identical with those used in connection with the
legalization program.  Long absence would tend to cause the Service to more
thoroughly review the alien's claim to have resided continuously in this
country and to have had only brief, casual, and innocent departures from the
U.S.

Section 101 (a)(33) of the Act provides,

     The term "residence" means the place of general abode; the place of
     general abode of a person means his principal, actual dwelling place
     in fact, without regard to intent.

Therefore, "resided continuously" means that the alien has had his or her
place of general abode, or his principal, actual dwelling place in fact,
continuously in the U.S.

Under the E.O. and the CSPA, the determination as to whether an absence may
be characterized as "brief, casual, and innocent" must be made after an
evaluation not only of the length of the stay outside the U.S., but also of
the purpose for which the trip was made and any extenuating circumstances
which may have caused the alien to be unable to promptly return to his or
her residence in the U.S.  For the purpose of determining eligibility for
benefits under the E.O., the term "brief, casual and innocent departure" has
been interpreted liberally to include temporary absences from the U.S. for
foreign visits by students during school vocation, family emergencies,
international conferences, and other academically related activities.  A
temporary absence of this nature should not have exceeded the length of a
normal summer vacation for students.  Prolonged absences that are longer
than five months are not necessarily deemed brief or casual.  However,
circumstances requiring longer absences will be given consideration.

  a) ie: Person who was in the U.S. on or before 4/11/90 leaves U.S. for
     Spain 1/92 and returns 10/92 with tourist visa issued in Madrid.

     Based up the length of the stay (9 months) and the lack of any
     explanation for the absence and of possible mitigating circumstances
     which delayed the alien's return to the U.S., it would appear that this
     absence may not have been brief, casual, and innocent.  However, this
     decision would have to be made on a case-by-case basis and further
     information would be needed to make a definitive determination.

  b) Any difference if such person was placed in exclusion proceedings with
     a charge of immigrant intent and no valid immigrant visa?

     Again, the decision must be made on a case-by-case basis and further
     information would be needed to make a definitive determination.

8. How is the 90 day limitation on travel to the PRC calculated?  Dos it
contemplate on 90 day trip or a cumulative calculation totaling time in all
trips to the PRC?

Neither the CSPA itself nor the relating legislative history contain any
indication that Congress intended to restrict CSPA applicants to a single
trip to the PRC of less than 90 days duration.  Therefore, the Service
interprets the 90-day limitation to mean that eligible applicants may have
spent no more than 90 days in the PRC in the aggregate during the period
beginning April 11, 1990, and ending on the date of the enactment of the
CSPA.

 a)  Any waiver if the time exceeded 90 days for urgent humanitarian or
     other reasons?

     The statute provides the Service with no authority to waive this
     requirement.  A Chinese national who exceeded the 90-day limitation
     may, however, be eligible for other immigration benefits not included
     in the CSPA.

 b)  Any waiver if the time exceeded 90 days due to the PRC government
     detaining the alien or otherwise delaying the alien's departure?

     Again, the statute provides the Service with no authority to waive this
     requirement.  A Chinese national who spent more than 90 days in the PRC
     between April 11, 1990, and the date of enactment of the CSPA because
     he or she was delayed or detained by PRC government officials may wish
     to look into the possibility of applying for asylum or other
     immigration benefits not included in the CSPA.

9. Are we correct that there is no time restriction with respect to trips
to the PRC after 10/09/92?

The CSPA does not limit the time spent in the PRC before April 11, 1990, or
after the date of enactment of the CSPA.  Of course, the CSPA does require
the alien to have resided continuously in the U.S. since April 11, 1990.

10. If an alien is a PRC national but spouse and/or children are not, do
they also qualify to adjust under the CSPA?  (Note, the executive order says
PRC nationals and their family are protected.)

The Service interprets the CSPA to include non-PRC national spouses and
minor children who are covered by the E.O.

Section 2 (b) of the CSPA states that the CSPA applies to aliens who are
nationals of the PRC as described in section 1 of the E.O.  Section 1 of the
E.O. encompasses nationals of the PRC and their dependents who were in the
U.S. on or after June 5, 1989 up to and including April 11, 1990.  This
interpretation also conforms with the background information available to
the Service, which indicates that Congress intended to provide for
adjustment of status of PRC nationals and their dependents covered by the
E.O.

 a)  Any restriction as to when the relationship (ie: marriage) must have
     been established or when the entry of that person must have occurred?
     Before 4/11/90?, before 10/9/92?  Abroad?  In U.S.?  ie: PRC national
     married F-1 student from Taiwan after arriving in the U.S.  May the
     spouse derive any benefit?

     Section 1 of the E.O. encompasses nationals of the PRC and their
     dependents who were in the U.S. on or after June 5, 1989, up to and
     including April 11, 1990.  A spouse or child who is not covered by the
     E.O. does not qualify for the direct benefits of the CSPA.

     Therefore, a spouse or child who was not a national of the PRC and
     whose relationship to the PRC principal was not established until after
     April, 11, 1990, is not covered by the E.O. and may not directly
     benefit from the CSPA.

     Similarly, a spouse or child who was not in the U.S. during the period
     on or after June 5, 1989, up to an including April 11, 1990, would not
     qualify for the benefits of the CSPA (unless they would have been
     present in the U.S. during the qualifying period but for a brief,
     casual, and innocent departure from the U.S.)

     However, section 203 (d) of the Act provides:

          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.

     Since the PRC principal is deemed to have had a petition approved under
     section 204 (a) of the Act for classification under section 203
     (b)(3)(A)(i) of the Act, the spouse and/or children would be eligible
     to derive this classification.  This would apply to any spouse and/or
     children acquired before the date the principal adjusted status, even
     if the spouse and/or children are not eligible to be covered under the
     E.O. and/or the CSPA.

     The non-CSPA spouse and/or children would therefore become eligible for
     derivative immigrant visa issuance abroad or adjustment of status in
     the U.S. if they meet all the requirements of section 245 of the Act
     when the PRC principal's priority date becomes current under section
     203 (b)(3) (A)(i) of the Act.  The non-CSPA spouse and/or children
     would be subject to both the worldwide and per country limitations.
     They do not directly benefit from any of the special exemptions of the
     CSPA.

     Neither the E.O. nor the CSPA place limitations upon where the marriage
     creating the relationship took place.  Therefore, the place of marriage
     would not affect eligibility for adjustment of status under the CSPA.

     In the cited example, the F-1 Taiwanese spouse of a PRC national may
     possibly be eligible for CSPA adjustment.  Both the PRC principal and
     the Taiwanese spouse must have been in the U.S. on or after June 5,
     1989, up to and including April 11, 1990, (unless they qualify under
     the brief, casual, and innocent department rule).  Their marriage must
     have taken place before April 11, 1990.

 b)  May the spouse and/or children derive any benefit from this act if they
     are not in the United States?  The spouse and/or children who are not
     in the United States may not derive benefits directly from the CSPA.

     However, as stated above, section 203 (d) of the Act provided:

          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.

     Since the PRC principal is deemed to have had a petition approved under
     section 204 (a) of the Act for classification under section 203
     (b)(3)(A)(i) of the Act, the spouse and/or children would be eligible
     to derive this classification.  This provision of section 203 (d) of
     the Act would apply to any spouse and/or children acquired before the
     date the principal adjusted status, even if the spouse and/or children
     are not eligible to be covered under the E.O. and/or the CSPA.

     The spouse and/or children would therefore become eligible for
     derivative immigrant visa issuance abroad (or adjustment of status in
     the U.S. if they met all the requirements of section 245 of the Act)
     when the PRC principal's priority date becomes current under section
     203 (b)(3)(A)(i) of the Act.  The non-CSPA spouse and/or children would
     be subject to both the worldwide and the per country quota limitations.

     Since no I-140 visa petition is filed to establish the PRC principal's
     priority date, the Service will consider the priority date to be
     established on the date when the PRC principal properly files the
     application for adjustment of status.

     The principal also may, after adjustment, wish to file a family-
     sponsored preference petition on behalf of a spouse or a child who was
     not eligible for CSPA adjustment.  The spouse or child could then be
     issued an immigrant visa or granted adjustment of status in either the
     employment-based category or the family-sponsored category, dependent
     upon which visa number first becomes available.  A lawful permanent
     resident may also file a family-sponsored preference petition on behalf
     of an unmarried adult son or unmarried adult daughter, even though
     adult son or daughters can benefit from neither derivative CSPA
     benefits nor the provisions of section 203 (d) of the Act.

11. Any idea as to how the applications will be handled?

As of this time, no determination has been made as to whether special
procedures will be necessary at all or some Service offices.

 a)  Will new forms be used?

     Since CSPA aliens must apply for adjustment of status under section 245
     of the Act, the Service anticipates using Form I-485.

 b)  Will an interview be required?

     All adjustment applicants should expect to be interviewed.  The
     Service has recently published a final regulation which allows the
     Service the discretion to waive the adjustment of status interview
     requirement under certain circumstances.  Under current policy, the
     decision to waive an interview may be made on a case-by-case basis in
     selected type of cases.No decision has been made at this time
     concerning whether CSPA adjustment application will be included as a
     class for which the discretionary interview waiver may be granted.

 c)  Will the alien need to gather documents similar to those needed for the
     legalization program to demonstrate continuous residence in the U.S. -
     ie: rent receipts, utility bills, bank statements, school records,
     etc., from 4/90 to the present?

     At the present time, no decision has been made concerning requirements
     for evidence of physical presence or residence in the U.S. during the
     required time period.  Since the statute does require the applicant to
     have been continuously resided in the U.S. since April 11, 1990, and
     not to have been physically present in the PRC for more than 90 days
     between April 11, 1990, and the date of enactment of the CSPA, some
     evidence of continuous residence may be required of applicants.

     The Service encourages potential applicants to retain documentary
     evidence of residence and records of time spent in the PRC during this
     period (for examples, copies of airplane tickets and copies of
     passports showing entries into and departures from the PRC) that they
     currently have in their possession.  Even if the regulations (which
     have not yet been drafted) do not require this type of evidence from
     all applicants, it may be necessary for certain applicants to provide
     this evidence if some doubt exists that the statutory requirements have
     been met.

 d)  Any different treatment of application or documentary requirements if
     the person has been issued DED status?

     This decision has not yet been made.  However, if does not appear
     likely that persons who have been given DED status will be treated
     differently from other qualified CSPA applicants.

12. Any difference between applying before 1/1/94 or after 1/1/94?  (There
appears to be no extension of the Executive Order beyond 1/1/94.)

Section 2 (a) of the CSPA provides that benefits of the CSPA applies to
applications for adjustment of status under section 245 of the Act filed
during the application period.  Section 2 (e) of the CSPA provides that the
application period means the 12-month period beginning July 1, 1993.
Therefore, application must be filed with the Service on or after July 1,
1993, but before July 1, 1994.

An applicant would not become ineligible for the benefits of the CSPA simply
because the application was filed after January 1, 1994, but before July 1,
1994, even if the applicant's DED status of other temporary status has
expired.  Some applicants may, however, wish to file before January 1, 1994,
in order to continue to be eligible for authorization to accept employment
in the U.S. or for other reasons which apply to the applicant's individual
situation.

Also, CSPA adjustments may be filed but may not be approved unless a
worldwide visa number is immediately available under section 203
(b)(3)(A)(i) of the Act.  Those filing for adjustment at later dates may
find that they are facing longer waits for a worldwide third preference visa
number to become available so that their adjustments may be approved.  Since
no I-140 visa petition is filed to establish the PRC principal's priority
date, the Service will consider the priority date to be established on the
date when the PRC principal properly files the application for adjustment
of status.

13. For those who were in the Communist Party, who can not demonstrate that
their membership was involuntary, must their membership have terminated 2
years prior to application or 5 years prior to application.

Assuming that the current PRC regime continues in power, a PRC national
would come under the exception for past totalitarian party membership
contained in section 212 (a)(3)(D)(iii) if the membership or affiliation
terminated at least 5 years before the date of application for an immigrant
visa or adjustment of status.

However, CSPA applicants may be able to adjust status even though Communist
party membership was not terminated at least 5 years before the date of
application or the membership cannot be found to be involuntary as described
in section 212 (a)(3)(D)(iii) of the Act.

The CSPA provides that section 212 (a)(5) and (7)(A) of the Act will not
apply to CSPA aliens.  It also provides that the Service may waive any other
provision of section 212 (a) of the Act, other than section 212 (a)(2)(C)
and/or 212 (a)(3)(A), (B), (C), or (E) of the Act.  The exclusion ground
encompassing totalitarian party membership, section 212 (a)(3)(D) of the
Act, may be waived for humanitarian purposes, for purposes of assuring
family unity, or if otherwise in the public interest.

The CSPA waiver of Communist party membership is discretionary.  Decisions
on waiver applications must be made on case-by-case basis and no advance
guarantee can be given that any individual waiver request would be approved.

14. Waivers.  Any standards or requirements for the granting of waivers?
ie: are any relatives required who must be United States or lawful permanent
resident aliens?

The CSPA provides that such waivers may be granted for humanitarian
purposes, for purposes of assuring family unity, or if otherwise in the
public interest.  No further standards for granting of waivers to CSPA
applicants have currently been developed.

 a)  May the exclusion grounds of HIV infection be waived without United
     States citizen or lawful permanent resident alien relatives?

     The CSPA allows excludability under section 212 (a)(1) of the Act to
     be waived on a discretionary basis for humanitarian purposes, for
     purposes of assuring family unity, or if otherwise in the public
     interest.  No further standards for granting of waivers to CSPA
     applicants have currently been developed.

Part II. Quota Questions
------------------------

1. Are we correct that there is no annual limitation on the number of PRC
nationals who may be adjusted under this Act?

The CSPA does not limit the number of PRC nationals who may be adjusted
under this Act.  Any eligible PRC national may file the application for
adjustment regardless of the availability of immigrant visa numbers.

The per-country limitations of section 202 (a)(2) of the Act do not apply
to CSPA adjustments.  However, CSPA aliens are still subject to the
worldwide annual quota limitation of section 201 of the Act.  Therefore,
CSPA adjustments may not be approved unless a visa number is available in
the worldwide employment-based third preference category (under section 203
(b)(3)(A)(i) of the Act).

2. Are the 1,000 numbers which are to be deducted annually going to be
deducted from the China quota or the worldwide quota?

Section 2 (d)(1) of the CSPA provides a unique system for per-country visa
number allocation in order to ensure that CSPA applicant will not have to
wait for long periods of time for a visa number to become available.  This
section directions the deduction of 1,000 numbers per fiscal year from the
China per-country quota.  Of course, adjustment under this category must
also be counted against the worldwide employment-based third preference
(section 203 (b)(3)(A)(i) of the Act) quota limitation of section 201 of the
Act.

3. What does it mean that these 1,000 number will be deducted from each
"applicable fiscal year"?  Does this refer to only the 1993 and 1994 fiscal
years that the program will be effect - ie: total of 2,000 numbers; or does
it means 1,000 numbers per fiscal year, until all adjustments from this
program will be re-captured - ie: if 80,000 PRC nationals adjust under the
CSPA, then 1,000 numbers will be deducted each year for the next 80 years?

Section 2 (d)(3) of the CSPA provides that "applicable fiscal year" means
each fiscal year during the period beginning with the fiscal year in which
the application period begins (FY 93) and ending the first fiscal year by
the end of which the total number of aliens counted for all "applicable
fiscal years" equals or exceeds the number of aliens adjusted under the
CSPA.  It may take several years to recoup these numbers.

However, section 2 (d)(3)(B) of the CSPA provides that the number counted
for a fiscal year will be 1,000 plus the number (if any) by which the number
of visas allocated to the PRC per-country quota exceeds the number of aliens
chargeable to that quota in the year.  Therefore, more than 1,000 numbers
may be "re-captured" during some fiscal years.

4. The CSPA states that the "application shall be considered without regard
to whether an immigrant visa number is immediately available at the time the
application is filed."  Does this mean that it may be approved without
regard to the quota or any backlogs in the quota under 202 (b)(3)(A)(i),
either under the China quota or the Worldwide quota?

Any eligible PRC national may file the application for adjustment regardless
of the availability of immigrant visa numbers.  The per-country limitations
of section 202 (a)(2) of the Act do not apply to the CSPA adjustments.

However, CSPA aliens are still subject to the worldwide quota limitations
of section 201 of the Act.  Therefore, CSPA adjustment may not be approved
unless a visa number is available in the worldwide employment-based third
preference category under section 203 (b)(3)(A)(i) of the Act.

5. If 80,000 PRC nationals are granted adjustment of status pursuant to the
CSPA, does this mean that 80,000 EB-3 numbers will be deducted from the
China EB-3 quota, or 80,000 EB-3 numbers will be deducted from the Worldwide
quota, or will only 1,000 numbers be deducted from the applicable quota.

The hypothetical 80,000 eligible aliens could file their application for
adjustment on or after July 1, 1993, and before July 1, 1994, regardless of
the availability of visa numbers either under the worldwide or under the
China per-country EB-3 quotas.

A number would have be deducted from the worldwide EB-3 quota before each
of the 80,000 adjustments could be granted.  Therefore, a total of 80,000
numbers would have be deducted from the worldwide EB-3 quota in order to
grant 80,000 CSPA adjustments.

80,000 numbers would eventually be deducted from the China per-country EB-3
quota at a rate of not less than 1,000 numbers per year.  More numbers may
be deducted from the China per-country EB-3 quota if any unused numbers are
available.  (If the provisions of 202 (e) apply the China during any of the
fiscal years when these numbers are being deducted the system will be
slightly different.  If 202 (e) applies, 3,000 visas would be deducted from
the China third employment-based preference and 7,000 would be deducted from
the China fifth employment-based preference.)

                                --end---

+--------------------------------------------------------------------------+
|    Editor of This Issue: Bo Xiong,   Coordinating Editor: Jian Liu       |
+--------------------------------------------------------------------------+
|  China News Digest (CND) offers the following services:                  |
|     (1) Global News (daily)        (2) US Regional News                  |
|     (3) Canada Regional News       (4) Europe & Pacific Regional News    |
|     (5) Hua Xia Wen Zhai (a weekly Chinese magazine)                     |
|     (6) several information packages.                                    |
|  For subscription information, mail to: [email-masked]                 |
|  To get help, mail to:                  [email-masked]                 |
+--------------------------------------------------------------------------+