Shopping for a U.S. Consulate in China
Iíve recently written about the long delays for nonimmigrant visa appointments in China. The U.S. Consular Mission has taken steps to address those delays. One such step is to allow for consular shopping. According to the Embassy website:
This step is not exactly revolutionary. The State Departmentís own guidelines have long encouraged Consulates to to accept visa applications from any person physically present in the consular district, saying that such applications should ďseldom, if everĒ be refused on the basis that the applicant is not a resident. Yet the U.S. Consulates in China have largely ignored that guidance over the years.
Now, applicants can shop for the best consulate. Which one is best? Usually, itís convenient to visit the nearest consulate. But if the appointment wait time is too long at that post, it may be preferable to apply where the wait is shorter. The State Department list wait times online.
For law firms like ours that advise applicants on visa issues, the availability of consular shopping actually adds another level of complexity to the application process. The attitudes of the five consulates in mainland China are not the same on all issues. And some consulates are more knowledgeable and consistent in their treatment of certain issues.
One example relates to the issue of whether applicants normally classifiable as H-1 (temporary workers in specialty occupations) may qualify for the quicker and less expensive B-1 (visitor for business) visa if they are customarily employed in China and will not be paid by a U.S. source. See 9 FAM 41.31. Our firm recently worked with two officers at the U.S. Embassy in Beijing to educate them about this relatively obscure legal provision and to persuade them that our clients qualified. In contrast, in Shenyang and Guangzhou officers have resisted applying this provision.
In short, letís applaud the U.S. Consular Mission in China for allowing consular shopping. But shop wisely. And, by all means, donít abuse the privilege. For instance, if yesterday one post refused your visa application, it would probably be unwise to try your luck at a new post today. Instead, youíll probably need to convince the first post why their decision was wrong.
Gary Chodorow is the Chief Representative, Beijing Office for the Law Offices of Frederick W. Hong. Gary graduated Summa Cum Laude with a Bachelor of Arts degree from Duke University in 1989 and earned his Juris Doctor degree from the University of California at Berkeley (Boalt Hall) in 1993. He was a partner in the law firm of Gessler Hughes Socol Piers Resnick & Dym, Chicago, Illinois, for ten years practicing immigration law and employment law. He is an adjunct professor at Chicago-Kent Law School. In China, he has taught law courses at Beijing University, Beijing Foreign Studies University, and Liaoning University. He is a member of the American Immigration Lawyers Association. He speaks conversational Mandarin and Spanish. Visit his academic website and immigration law blog at www.lawandborder.com.
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