Communist Party Membership and Consular Processing

Many people believe that recent Communist Party membership will unavoidably lead to a lengthy delay in visa issuance after the Consular interview. This is not necessarily the case. Recently we helped a client obtain a K-1 visa at the Guangzhou U.S. Consulate even though she was still a member of the Chinese Communist party on the day of the interview. We had helped clients in the past obtain visas who had left the Party months earlier, but this was our first attempt at a visa for a beneficiary who was still a CCP member when interviewed (although she was in the process of letting the membership lapse). Because this was a particularly challenging case, I asked a young attorney on my staff, Laurie Wu¹ to research and write a legal memorandum on the applicable standards for review in such cases, and we used these results to counsel our client on how to present her Communist Party membership during the Consular interview. The beneficiary fiancee's visa was approved on the day of the interview. The Consulate was apparently convinced by our presentation that the beneficiary's participation was "non-meaningful", and thus they did not feel the need to order a Security Advisory Opinion from the State Department (which would have delayed visa issuance by several weeks). So, the visa could be approved immediately. I attach Laurie's memorandum hereto for the benefit of those struggling with similar issues.

¹ Actually at the time Laurie was technically not yet an attorney as she was still waiting for her bar exam results; she has since learned that she passed the exam and has been admitted to the NJ bar.

Response to web blog query re Hong Kong processing

Anonymous says:

John, I remember you telling me NOT to get married in Hong Kong back in April, but I "went with the herd" and did it anyway. Now people are saying that HK changed its policies and is being really tough with PRCs married in China. MY K-3 has been approved and CR1 should be approved soon (did electronic processing), but I'm scared to death of HK. Should I write them a letter saying I wasn't trying to avoid Guangzhou when I got married in HK?

First, Hong Kong has not changed its policies. The same people are there as were there earlier this year and the policies are all the same, as far as we can tell. The problem with getting married in a third country in order to avoid the consulate of the beneficiary’s home country is that it is almost ALWAYS a bad idea. It’s a case of being “too clever by half”. I posted something about this earlier in the blog (see Filing K-3 at Third Country Post After K-1 Denial).

OK, what to do?

The first thing to understand is that you get only one bite at the apple. Either your I-130 petition will be reviewed or the K-3. Normally, you would pick the K-3 because it’s faster. My view is that you will have a better chance of approval if you withdraw the K-3 and just go to Guangzhou for the I-130 interview (plus the bonus that after entry on the I-130 you will not have to go through with the adjustment of status process, work authorization, travel document, another affidavit of support, etc. etc., which IS the case with the K-3). Count on being asked by the Consular Officer in Guangzhou why you married in Hong Kong rather than on the mainland (the more natural choice, since your wife’s relatives are more close at hand). Do NOT lie and claim you had some personal/romantic/practical/whatever reason to get married in Hong Kong if none exists, or if you are “puffing” a rather weak reason to get married there. As I’ve said before, consular officers may be misguided in their policies from time to time, but they are most definitely not stupid and they usually see through bogus reasoning and rationalizations. When asked, the best answer is the honest one – “some people were recommending it earlier this year as a way around the problems at Guangzhou, but in the end we decided not to go that route,” or something like this. Consular offices tend to be pleasantly surprised by such candor, and, by being frank even when it’s painful, you will have enhanced your credibility for other questions answered during the interview.

What a Difference a Year Makes

9/28/09 Guangzhou, China
I just finished an extraordinary meeting with the Immigrant Visa Unit Chief at the Guangzhou U.S. Consulate (by the way, the information that I had earlier posted on my blog that a new Unit Chief was appointed in late July 2009 was incorrect; it’s the same person who has been there for a year and a half).

For those who haven’t read the rest of this blog, I travelled to Guangzhou almost exactly a year ago to get some information about K visa processing after having been completely frustrated for over a year trying to figure out what the heck was going on here. At that time, the Unit Chief refused to meet with me, and the Consular Officer I spoke with during Petitioner Hour refused to give me any meaningful information about my cases or about visa processing in general.

This time, the Unit Chief met with me for about 20 minutes and we had a wide-ranging discussion that covered many subjects. The Unit Chief was astonishing forthright and helpful. She answered every single question I asked her.

Here are some of the highlights:

The Guangzhou Consulate considers the K-3 a visa type that has lost its usefulness due to changes in processing times of I-130 petitions (which have gotten substantially shorter since the K-3 law was passed) and the processing times for K-3 visas (which are much longer than was originally contemplated by the drafters of the K-3 visa law). The two processing times have virtually collided and the K-3 saves at most two months time now, while adding substantially to the administrative burden of the overseas consulates. She’s largely right on that score. The game is scarcely worth the candle now that I-130 cases are taking less and less time and K-3 times remain stagnant. This disparity will get even less as petitioners opt for electronic processing of the I-130, the Unit Chief points out. Further, she reports that there’s an effort underway to change DHS policy so that K-3 petitions cannot proceed from the NVC to the consulate/embassy until the I-130 has also arrived at the NVC and has finished processing. This change, if implemented, this will further diminish the usefulness of the K-3 petition.

The Unit Chief was also refreshingly candid about the fact that the Consulate can and does make mistakes. She said this was particularly true in 2008 as the Consulate sought to work down the huge backlog it inherited from 2007. She says that the backlog now is zero and the Consulate is now current in its processing. That’s probably correct, too. In our experience, prior to 2008 petitioners and beneficiaries had to wait seven to eight months from CIS approval to interview date. Now it’s four to five months on average.

Attorneys are now allowed to make an inquiry about one specific case per Petitioner Hour meeting, although there’s no limit to the number of general questions. I asked the UC about the specifics of one particularly puzzling revocation case from 2008 (for which we currently have a K-3 petition pending), and she read to me several of the consular officer’s notes on the case. We therefore have a better understanding about what we need to do to make the K-3 interview a success.

There were other things she revealed, but I’m not sure I’m at liberty to discuss them. I want to check before posting.

One of the most surprising things that occurred was that te UC actually answered my question about what percentage of K visa beneficiaries are approved on the day of the interview (that is, a “pink sheet” rather than a white or blue sheet). She said “about 50%”. This was a higher number than I expected and shows that the earlier optimism that a new Consul General would substantially reduce visa refusals may have been premature. Our impression was that in the weeks after the new CG appeared at post the IV unit was approving a substantial majority of K visa cases on the first day. During the last six weeks, though, we’ve noticed an increase in the number of petitioners contacting us regarding cases returned to CIS by GUZ with a recommendation for revocation. So there’s obviously still work to be done shaking the Consulate from its skepticism about Chinese-American romances.

I’m optimistic, though, because better communication between the Consulate and affected parties (and it could scarcely be worse than it was until only recently) can help the Consulate better appreciate how authentic most couples are and to realize that a lot of good couples are getting caught in the Consulate’s overly broad fraud profile net.

One amusing final note - just before I left the meeting the Unit Chief ardently stated “We’re not the enemy, you know!”. I’m guessing she read my 3/15/09 memo. OK, I can let bygones be bygones if there's real change at Guangzhou.

Senate Confirms Jon Huntsman, Jr. as U.S. Ambassador to China

This Friday the U.S. Senate voted unanimously to confirm Utah governor Jon Huntsman as ambassador to China.

Sen. Orrin Hatch (R-Utah) issued the following statement Friday after the Senate confirmed Utah Governor Huntsman as U.S. ambassador to China:

“I am very pleased that the United States Senate recognized the tremendous qualities and leadership Governor Jon Huntsman will bring to the position of Ambassador to China. This position is of extreme importance to our nation and to the international world because of China’s continuing role in the global economy, and on the political international state. I look forward to great things from now Ambassador Huntsman, and have every confidence that he will continue to exemplify the leadership he demonstrated at the helm of our state, in a nation of great importance across the globe.”

New IV Unit Chief in Place in Guangzhou

The new Immigrant Visa Unit Chief is also in position and some changes in policy are already clear to those in the building. Will follow with more later....

New Consul General in Guangzhou

On July 24, 2009, Brian L. Goldbeck, a career foreign service officer, assumed the duties of U.S. Consul General in Guangzhou, China. See GUZ web site announcement.

Huntsman Vote Delayed a Week

The Salt Lake Tribune reported yesterday that Ambassador-Designee John Huntsman Jr.'s confirmation as U.S. Ambassador to China has been delayed for a week by the Senate Foreign Relations Committee. The reason cited in the Tribune article is that "the paperwork is still being compiled".