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Asylum, Business Visas, Work Visas

Food for Thought on Recent U.S. Immigration Decisions on China

It was recently announced that adjustments have been cut off for China-mainland and India EB-2 with priority dates on or after August 15, 2007. That’s right, the announcement is that no further EB-2 visas will be authorized for these China and India applicants. In February, 2012, the official visa bulletin announced that nationals from India and China could file for I-485/EAD/AP as long as their priority dates fell on 12/31/09 or earlier. EB2 waiting time had purportedly been cut by have, from 4 to 2 years. The reason allegedly given by the Department of State was the low level of new I-485 filings. In other words, these economically booming countries were providing internal outlets for their citizens with advanced degrees and exceptional abilities.

Compare the discussion on NPR yesterday regarding China’s vision of the U.S. and the complexity of the two countries’ relationship. The debate centered on whether China’s government considered the U.S. as a country already in decline or a country that had peaked but would start its decline in approximately 10 years. The report was titled “Strategic Distrust”. Among the noted the asymmetries between the U.S. and China, the report indicated that China sees the majority of U.S. international actions as an attempt to frustrate China’s assumption of global power.

Query how the USCIS’s immigration policies towards China play into this strategic mistrust.

Juxtapose immigration court decisions in 2006 with immigration decisions in 2012. You might recall the 2006 case of Gao v. Gonzalez (2d Cir., 2006), wherein the Court held that women sold into marriage in China should be considered a Social Group. There, a Chinese woman sought asylum and Convention Against Torture protection after her parents allegedly sold her into marriage at age 19 to pay off debt. Initially the immigration judge denied asylum and CAT protection, indicating that an intra-familial dispute was not grounds for asylum. However, the Second Circuit Court held that the Chinese woman belonged to a particular social group requiring protection. Citing widespread human trafficking in China and the Chinese government’s failure to combat the problem, the Court overturned the immigration judge’s ruling against asylum. You may also recall a case regarding violation of confidences because the INS had provided the Chinese government with a Chinese asylum-seeker’s asylum documents (Lin v. U.S. Dep’t of Justice, 2d. Cir., 2006). In these cases, the Chinese petitioner’s asylum rights were vindicated and supported. Six years ago, it may have appeared that fleeing Chinese citizens needed U.S. support.

Compare a recent decision regarding another Big 5 asylum petition, this time from Ukraine. In Lyashchynska v. U.S. Attorney General, issued April 4, 2012, the Court refused to extend the same type of asylum and CAT protection to the suffering Ukranian woman, citing failures in credibility and evidence. Although the distinction of decisions might be clearer to an American attorney, one must wonder how such actions appear to Chinese government officials.

In another recent case, Chen v. Holder (2012), a Chinese man facing removal proceedings claimed that China’s 2007 Country Profile did not properly reflect the changed country conditions of China. The Chinese man produced letters from family members recounting human rights violations and persecution, and alleged that the Department of State was intentionally working with the Chinese government to defeat family planning asylum claims. Faced with such a direct affront, the 1st Circuit Court denied the asylum claim.

It appears that the post-recession courts may be changing their tune.

Of course, recent changes in the U.S.’s attitude toward Chinese immigration may also reflect the March, 2012 release of Estimates of the Unauthorized Immigrant Population Residing in the U.S. In that recent report, the number of unauthorized immigrants coming from Asia had increased, while those coming from Europe had flat-lined. However, the report compares numbers from the year 2000 to the year 2011, and neither Europe nor Asia compared the the near doubling effect sustained from North America-born immigrants.

Notwithstanding, there can be no doubt that after having surpassed Japan and Germany as the dominant economic contender on the global scale, China is on America’s radar; or maybe it’s the other way around. To be sure, Chinese-American relations will be the hotspot in international relations for the foreseeable future.

Share your thoughts!


Miami International Attorneys, P.L.


About Miami International Attorneys, P.L.

Miami International Attorney

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Andrew John Bernhard, Esq.

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Welcome to MiamiVisaHelp.com’s law blog … discussing everything visa from the perspective of those that have a need, desire, or tendency to move from country to country for the purpose of work, survival, education, living, play, and everything in between. Please feel free to send Andrew John Bernhard, Esq. a message! We are always trying to enhance your experience, and help all of us movers, migrators, immigrants, ex-pats and travelers have an easier, happier, and more satisfying experience in the often confusing world of U.S. Immigration. Please feel free to visit our friends at USImmigrationMiami.wordpress.com and TheMitochondrialMigrator.wordpress.com to see more from similar minded people like yourself! Most of all…ENJOY! - Andrew John Bernhard, Esq.

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