From: "Junwei W. Hou" <jwh3@PO.CWRU.EDU>
Subject:      SJ Q&A: Bill Analysis--S.1216, as amended
Reply-To: "Junwei W. Hou" <jwh3@po.CWRU.Edu>
Organization: Indiana University
Date: Wed, 12 Aug 1992 16:05:08 GMT
Comments: To: china-nt@uga.cc.uga.edu

SJ Q&A (August 12, 1992): Bill Analysis
*****************************************************
Note: The following analysis is solely based on the author's
understanding and knowledge.  For more detailed analysis about the
bill, the interested persons should consult their immigration
lawyers or other governmental officials. (cr. JWH)
     INA refers to the Immigration and Naitonality Act of 1990.
     INS refers to the Immigration and Nationality Service
     Text within [ ] is from the bill.
*****************************************************
   S. 1216: CHINESE STUDENT PROTECTION ACT OF 1992
   SECTION 1. SHORT TITLE.

   This Act may be cited as the " Chinese Student  Protection Act
of 1992".

   SEC. 2. ADJUSTMENT TO LAWFUL PERMANENT RESIDENT STATUS OF
CERTAIN NATIONALS OF THE PEOPLE'S REPUBLIC OF CHINA.

 [  (a) In General. -- Subject to subsection (c)(1), whenever an
alien described in subsection (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: ]

[(1) The alien shall be deemed to have had a petition approved
under section 204(a) of such Act for classification under section
203(b)(3)(A)(i) of such Act. ]

          INA 204(a) provides that any alien applying for
     immigration is required to file a petition to the Attorney
     General for classifications, i.e., either family-sponsored,
     employment-based or others.  For example, for an H-1 holder to
     apply for immigration, he is required to file a petition
     asking for employment-based classification (usually with the
     proof of the Labor Certificate).  This section of the bill
     provides that any qualified PRC national "shall be deemed to
     have had a petition approved" by the Attorney General under
the  employment-based classification (sec. 203(b)(3)(A)(i) of INA).


[(2) The application shall be considered without regard to
whether an immigrant visa number is immediately available at the
time the application is filed.]

          This section means that the PRC nationals' applications
     will not be restricted by the immigration visa quota set by
     INA.


[(3) In determining the alien's admissibility as an immigrant,
and the alien's eligibility for an immigrant visa --
    (A) paragraphs (5) and (7)(A) of section 212(a) and section
212(e) of such Act shall not apply; and
    (B) the Attorney General may waive any other provision of
section 212(a) (other than paragraph (2)(C) and subparagraph (A),
(B), (C), or (E) of paragraph (3)) of such Act with respect to such
adjustment for humanitarian purposes, for purposes of assuring
family unity, or if otherwise in the public interest.]

          According to INA, any alien applying for immigration must
     have valid status and must not fall into the classes of
     "Excludable Aliens" described in INA sec. 212 (a).  This
     section of the bill provides that some provisions of INA
212(a)    are not applicable to the PRC nationals covered by the
bill:

               212(a)(5)(A): Labor Certification
                (7)(A): valid documentation such as a valid
          unexpired immigrant visa, reentry permit, border crossing
          ID,  valid unexpired passport, etc.

               212(e): J-visa, i.e. 2 year home-country requirement

          In addition, "for purpose of assuring family unity, for
     humanitarian purposes, or if otherwise in the public interest"

     the Attorney General has the discrection to wave any other
     provision of INA 212(a) except following provisions:

               212(a)(2)(C): drug dealers
                     (3)(A): "any alien who a consular officer or
          the Attorney General knows, or has reasonable ground to
          believe, seeks to enter the United States to engage
          solely, principally, or incidentally in" unlawful
          activities."

               212(a)(3)(b): Terrorist Activities
               212(a)(3)(C): Aliens with "potentially serious
                    adverse foreign policy consequences" for the
                    U.S., with some exceptions.
               212(a)(3)(E): Participants in Nazi Persecutions or
                    Genocide.





[(4) The numerical level of section 202(a)(2) of such Act shall
not apply.]

          202(a)(2) sets the numerical limits of family-
     sponsored and employment-based immigrant visa for any single
     foreign state.  The limit is set that no greater than 7% of
     the total available visa number may be issued per country plus
     what is left over from other immigrant categories.  Under INA
     201(c)&(d), the worldwide level of family-sponsored immigrants
     is about 48,000, and the worldwide level of employment-based
     immigrant visa number is at least 140,000.


[(5) Section 245(c) of such Act shall not apply.]

          245(c) excludes those engaging in unauthorized employment
     or losing lawful status prior to the filing for immigration
     adjustment.  This provision will not apply under S. 1216.



[(b) Aliens Covered. -- For purposes of this section, an alien
described in this subsection is an alien who --
   (1) is a national of the People's Republic of China described in
section 1 of Executive Order No. 12711 as in effect on April 11,
1990;
   (2) has resided continuously in the United States since April
11, 1990 (other than brief, casual, and innocent absences); and
   (3) was not physically present in the People's Republic of China
for longer than 90 days after such date and before the date of the
enactment of this Act.]

          This provision should be read in reference to the
     Executive Order.

[(c) Condition; Dissemination of Information. --
    (1) Not applicable if safe return permitted. -- Subsection (a)
shall not apply to any alien if the President has determined and
certified to Congress, before the first day of the application
period, that conditions in the People's Republic of China permit
aliens described in subsection (b)(1) to return to that foreign
state in safety.
   (2) Dissemination of information. -- If the President has not
made the certification described in paragraph (1) by the first day
of the application period, the Attorney General shall, subject to
the availability of appropriations, immediately broadly disseminate
to aliens described in subsection (b)(1) information respecting the
benefits available under this section. To the extent practicable,
the Attorney General shall provide notice of these benefits to the
last known mailing address of each such alien.]


               The benefit provided in the bill will not be
     materialized if the condition in China no longer supports the
     presumption that the safety return of the PRC nationals are
     not warranted.  The President will be responsible for
     providing such proof before July 1, 1993.



[(d) Offset in Per Country Numerical Level. --
   (1) In general. -- The numerical level under section 202(a)(2)
of the Immigration and Nationality Act applicable to natives of the
People's Republic of China in each applicable fiscal year (as
defined in paragraph (3)) shall be reduced by 1,000.]


          202(a)(2) provides that per country level of immigration
     quota shall not excess 7% of the total immigrant visa number.
     (see above (4)).  For detailed number assigned to PRC
     nationals, refers to INS source.  The number assigned to PRC
     nationals should not excess 34,000 for family-sponsored
     immigrant and 10,000 for employment-based immigrant.


[(2) Allotment if section 202(e) applies. -- If section 202(e) of
the Immigration and Nationality Act is applied to the People's
Republic of China in an applicable fiscal year, in applying such
section --
  (A) 300 immigrant visa numbers shall be deemed to have been
previously issued to natives of that foreign state under section
203(b)(3)(A)(i) of such Act in that year, and
  (B) 700 immigrant visa numbers shall be deemed to have been
previously issued to natives of that foreign state under section
203(b)(5) of such Act in that year.]

          202(e) provides that no offset in number or visas should
     be made if "an alien is granted the status of having been
     lawfully admitted for permanent residence."  If it is decided
     that this provision applies to the PRC nationals covered by
     this bill, the distribution of the 1,000 reduced immigrant
     number, as provided by this bill, should be divided as
     following: 300 visa numbers reduced shall be from the category
     of employment-based skilled workers, professionals, and other
     workers (the world-wide level of this category is 40,000 plus
     what is left over from other categories, the number assigned
     to China can be found in relevant INS documents); 700 visa
     number reduced shall be from the category of "employment
     creation". (The world-wide level in the category is about
     10,000).  (Interestingly, as what I understand, not many PRC
     immigrants are from this category.  Thus, the impact of
     assigning 700 reduced visa number to employment-creation
     category may not be as great as it seems to be.)



[(3) Applicable fiscal year. --
   (A) In general. -- In this subsection, the term "applicable
fiscal year" means each fiscal year during the period --
   (i) beginning with the fiscal year in which the application
period begins; and
   (ii) ending with the first fiscal year by the end of which the
cumulative number of aliens counted for all fiscal years under
sub-paragraph (B) equals or exceeds the total number of aliens
whose status has been adjusted under section 245 of the Immigration
and Nationality Act pursuant to subsection (a).
   (B) Number counted each year. -- The number counted under this
subparagraph for a fiscal year (beginning during or after the
application period) is 1,000, plus the number (if any) by which (i)
the immigration level under section 202(a)(2) of the Immigration
and Nationality Act for the People's Republic of China in the
fiscal year (as reduced under this subsection), exceeds (ii) the
number of aliens who were chargeable to such level in the year. ]


          This provision provides that the reduction of 1,000
     immigrant visa number from that assigned to PRC nationals
     under the INA will continue each year until such deduction
     equals or exceeds the number granted to the PRC nationals
     covered by the bill.  The way to count the number of the PRC
     national benefitted from the bill is:  1,000/yr + if any (the
     quota assigned to PRC - actual no. of PRC immigrant).  Of
     course, for the purpose of this calculation, the no. in () can
     not be negative.  Otherwise, it will not be included in the
     formula.


[(e) Application Period Defined. -- In this section, the term
"application period" means the 12-month period beginning July 1,
1993.]

     This may be the only part amended in House.  The PRC nationals
covered should apply for permanent residence status between July 1,
1993 to June 30, 1994.



                              Junwei Hou (CWRU-Law)
Newsgroups: talk.politics.china