It is a pleasure to be an editor of a newsletter when you have a Section Council and many other interested individuals who are willing to provide material on a regular basis. Without that support, we would not be publishing the third issue of The Globe in the third month of this publication year.
This issue includes the Message from the Chair by Shannon Jackson and contributions by Section Council members Cindy G. Buys, Scott D. Pollock and Violeta Balan. Scott’s article is entitled “United States Treaty and Nationality Based Work Options” and Cindy’s is “Recent Developments with Respect to First Amendment Rights in the Immigration Context.”
Violeta Balan, assistant editor, includes a news item on the Chicago Council on Foreign Relations changing its name and Caitlyn McEvoy has her third item concerning Web site resources, this one on the Global Legal Monitor at the Law Library of Congress.
Christopher Scott Maravilla has submitted articles in the past (such as “The International Criminalization of Hate Speech” vol. 43 no. 1) Christopher’s book review is on “Building Bridges: An Egypt-U.S. Free Trade Agreement.”
Liu Xin is a new author for us, currently living in Beijing, he received an LLM in Global Legal Studies from The John Marshall Law School in Chicago in May 2006. His article is “A Comparison of Chinese Secure Transactions and the UCC Article 9.” Another new author is John T. Baun, a third-year law student at The John Marshall Law School in Chicago who is also a PhD candidate at the University of Nebraska-Lincoln. He has contributed “China Watch.”
With this range of articles and the frequency of publication, The Globe justifies membership in the International and Immigration Law Section. Please encourage at least one associate or friend to become a member of the Section Council.
Thank you to all the contributors and we are always looking for additional authors and material.
Lewis F. Matuszewich
Matuszewich, Kelly & McKeever, LLP
Telephone: (312)726-8787;
Facsimile: (773) 279-8872
E-MAIL: lfmatuszewich@mkm-law.com
Welcome to the third edition of The Globe this year! Thanks to our great contributors and especially our editor, Lewis Matuszewich, and assistant editor, Violeta Balan, for making the International and Immigration Law Section so prolific!
Want to show your friends and colleagues who aren’t members of the International and Immigration Law Section what they’re missing? The table of contents to The Globe is now available online for all ISBA members to view. Simply go to <http://www.isba.org/Sections/international/toc.html> to see the most recent tables of contents.
The Midwest Immigration and Human Rights Center has changed its name to the National Immigrant Justice Center. Mary Meg McCarthy, the director of the NIJC, says the change was meant to reflect the broader scope of the Center’s work, which seeks to promote human rights and access to justice for all types of immigrants. Attorneys interested in doing pro bono work for a great cause will receive extensive training and support in defense of asylum claims. Anyone interested should contact the NIJC directly. What a great way to get involved in the fight for comprehensive immigration reform!
As immigration practitioners may know, the extent of First Amendment rights of non-U.S. citizens has not been fully decided. In American-Arab Anti-Discrimination Committee v. Meese, 714 F. Supp.1060 (C.D.Cal.1989), a California District Court applied First Amendment rules that had been developed in free speech cases involving U.S. citizens to deportation cases involving lawful permanent residents who were removable because they were members of the Popular Front for Palestinian Liberation, an organization alleged to advocate terrorist acts. The Supreme Court reversed on jurisdictional grounds (545 U.S. 471), leaving open the question of whether immigrants’ free speech rights are the same as those of U.S. citizens. Two recent District Court decisions from New York have reaffirmed the application of the usual First Amendment rules to immigration cases.
In Turkmen v. Ashcroft, Slip Copy, 2006 WL 1662663 (E.D.N.Y. 2006), a group of aliens of Middle Eastern descent who were detained immediately after the terrorist attacks of September 11, 2001 sued the U.S. Government on two grounds. First, they argued that that the Government used their status as illegal aliens as an excuse to hold them in jail while the Government pursued its real interest—determining whether they were terrorists or could help catch terrorists. Second, Plaintiffs also alleged that the conditions of their confinement flagrantly violated the U.S. Constitution. The Government moved to dismiss both sets of claims. The Court agreed to dismiss the first set of claims, finding that the political branches have broad power over naturalization and immigration, including the power to “single out nationals of a particular country and focus enforcement efforts on them.” The Court refused to dismiss most of the claims of constitutional violations arising from conditions of confinement, however.
The surviving claims included a claim that Plaintiffs’ First Amendment rights were violated. Specifically, Plaintiffs claimed that the Government imposed a communications blackout that prevented Plaintiffs from obtaining access to legal counsel and from petitioning the courts for redress of their grievances under the First Amendment. Acknowledging that the applicable legal standard for pretrial immigration detainees is not clear, the District Court resorted to the standard articulated by the Supreme Court in Turner v. Safly, 482 U.S. 78 (1987), which ordinarily applies to convicted prisoners. Under Turner, “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests,” with penological defined to mean related to prison management rather than punishment.
Using that test, the Government argued that “concern over communications between possible terrorists and potential escape and attack plans after September 11, 2001 justified the communications blackout as reasonable.” The Plaintiffs countered that the Government had no reason to believe the Plaintiffs had any connection to terrorists. Plaintiffs further alleged that they were videotaped and audio taped while speaking with their attorneys, which prevented them from speaking candidly. Plaintiffs’ allegations were supported by a 2003 report by the Office of the Inspector General of the United States Department of Justice. Plaintiffs also alleged that family members and lawyers who came to visit them at the Metropolitan Detention Center were falsely told they were not there and that the guards purposely dialed incorrect telephone numbers when they tried to call their lawyers and their families.
According to the Court: “These allegations, if proved, may well constitute a violation of clearly established rights.” Immigration detainees have a right to counsel that is rooted both in the Due Process Clause of the Constitution and the Immigration and Nationality Act. The Court further stated: “The constitutional rights the plaintiffs assert – the rights to due process of law, to equal protection of the laws, and to be free from unreasonable searches and seizures-apply not only to citizens but also to aliens present in our country.” Thus, the Court used standards applicable to U.S. citizens when holding that Plaintiffs would be allowed to proceed with their lawsuit and given a chance to prove their claims of constitutional violations.
In a second New York case, Ramadan, et al. v. Chertoff, No. 06 Civ. 588 (S.D.N.Y. 2006), District Court Judge Paul A. Crotty ordered the Government to adjudicate the nonimmigrant visa application of Tariq Ramadan, a Swiss-born scholar of Arab descent, in connection with a lawsuit claiming that Ramadan’s exclusion violated the Plaintiffs’ First Amendment right to hear his views. In January 2004, Ramadan accepted a long-term tenured teaching position at the University of Notre Dame. The University applied for an H-1B visa on his behalf, which was granted by the U.S. Citizenship and Immigration Service in May 2004. After Ramadan had made arrangements to move his family to South Bend, Indiana, (including having his furniture shipped there), the U.S. Embassy in Bern, Switzerland informed Ramadan by telephone that his visa had been revoked. Consular officials did not provide any explanation for the revocation, but told Ramadan he was welcome to reapply. One month later, in August 2004, the Los Angeles Times ran an article about the revocation of Ramadan’s visa in which, “Russ Knocke, a spokesman for the Immigration and Customs Enforcement Division of the Department of Homeland Security, said the work visa was revoked because of a section of the federal law that applies to aliens who have used a ‘position of prominence within any country to endorse or espouse terrorist activity.’ . . . He said the revocation was based on ‘public safety or national security interests,’ but would not elaborate.” In litigation, the U.S. Government maintained that Mr. Knocke’s statement was erroneous, but provided no explanation or elaboration.
Acting on the government’s invitation, the University of Notre Dame submitted a new visa petition for Ramadan in October 2004. When the University contacted the Department of State in December 2004 to check on the status, the University was told that no decision would be made on Ramadan’s petition in the near future. Owing to the indefinite delay, Ramadan resigned his teaching position at the University. When his resignation was reported in the press, the Department of Homeland Security immediately sent the University an “Intent to Revoke” letter on December 21, 2004 based on Ramadan’s resignation of his position.
In September 2005, at the urging of various organizations within the United States, Ramadan applied for a B visa to enter the United States on a temporary basis to participate in various conferences to which he had been invited. He was interviewed at the Embassy in Bern in September and December 2005 and was told in the latter interview that a decision could take up to two years. As of the date of the District Court’s opinion in June 2006, the government had not acted upon Ramadan’s visa. Accordingly, the American Academy of Religion, the American Association of University Professors, and the Pen American Center brought suit along with Ramadan in January 2006 challenging the Government’s exclusion of Ramadan from the United States. Plaintiffs claimed that Ramadan’s continued exclusion violated their First Amendment rights to hear Ramadan speak. Shortly after bringing the suit, Plaintiffs sought a preliminary injunction compelling the Government to permit Ramadan to enter the United States to attend their conferences, or, in the alternative, compelling the Government to render a final decision on Ramadan’s visa application.
The U.S. District Court for the Southern District of New York applied the traditional test for injunctive relief, first finding that the “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” However, the Court said that Plaintiffs’ First Amendment rights must be balanced against other legitimate governmental interests, such as national security. Here, the Court held that “the ability to engage Ramadan in debate by way of videoconferencing is sufficient to satisfy Plaintiffs’ First Amendment rights prior to a final adjudication on the merits.” The Court expressly stated, however, that this part of its holding was limited to the preliminary injunction motion and that the Court was not holding that technological alternatives are sufficient to satisfy Plaintiff’s First Amendment right to interact with Ramadan on a permanent basis.
With respect to the substantial likelihood of success on the merits, the Court reaffirmed that the First Amendment includes not only a right to speak, but also a right to receive information, including the right to have a non-U.S. citizen enter the United States to hear him explain or defend his views. But this right is a conditional one in light of the federal Government’s broad power to regulate the admission of noncitizens. The Court cautioned, however, that “while the Executive may exclude an alien for almost any reason, it cannot do so solely because the Executive disagrees with the content of the alien’s speech and therefore wants to prevent the alien from sharing this speech with a willing American audience.” Relying on the Supreme Court’s decision in Kleindienst v. Mandel, 408 U.S. 753 (1972), the District Court held that the Executive may exercise its plenary power over immigration and visa issues negatively on the basis of any “facially legitimate and bona fide reason.” In Mandel, the visa was denied due to previous visa violations. In this case, however, the Government did not provide any reason for excluding Ramadan from the United States. As previously noted, the Government disavowed the statement of its spokesman, Mr. Knocke, but failed to provide an alternate explanation or any explanation at all, for its actions. Thus, the Court found it impossible to determine whether the plaintiffs’ First Amendment rights had been violated. The Court found the Government’s general reference during litigation to unspecified “national security” concerns to be inadequate because there was no basis in the record for the Court to evaluate whether such concerns were facially legitimate or bona fide.
Pursuant to section 6 of the Administrative Procedure Act, government agencies are to render decisions within a reasonable period of time. What is reasonable varies depending on circumstances. The record in Ramadan showed that most nonimmigrant visa applications submitted to the Bern Embassy are processed within two days and that most “special clearances” were processed within 30 days. Thus, Ramadan’s nine-month wait was well beyond “reasonable” under those circumstances. “Out of an excess of caution,” the Court gave the Government an additional 90 days to adjudicate Ramadan’s pending application for a B visa. The deadline to appeal this decision has now passed without an appeal by the government. Thus, the government must issue a decision with respect to Ramadan’s visa application before the end of September 2006. The Ramadan decision suggests that while the Government has broad power to admit or exclude noncitizens, where First Amendment rights are implicated, the Courts may be willing to require the Government to be more specific than simply alleging general national security concerns when excluding a non-citizen. Further developments in both these cases are awaited.
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Cindy G. Buys is an Assistant Professor of Law at the Southern Illinois University School of Law where she teaches constitutional law, immigration law and a variety of international law courses. Professor Buys also is a section council member of the International and Immigration Law Section of the ISBA.
Introduction
Each year the United States is a desirable or necessary destination for millions of international business persons and travelers. But to work in the U.S., specific documents are needed and employment authorization is legally required. Owing to compelling economic drivers, shifting foreign policies, and emerging domestic political priorities over many years, U.S. immigration law displays an evolving jigsaw puzzle of nationality based treaty and statutory provisions that allows citizens and nationals of specified countries to work or engage in limited business-related activities in the U.S. for various purposes and periods of time.2
This article will outline some of the most widely used of these provisions, and touch on some of the lesser known nationality based provisions that may assist the immigration practitioner and businesses to locate and identify law that can assist non-U.S. citizen business persons or workers to obtain entry and maintain lawful U.S. visa status.
I. E visas- statutory or treaty nationality-based work options
A. Bilateral treaties of commerce and navigation
(i) Treaty trader (E-1 visa)
(ii) Treaty investor (E-2 visa)
(iii) Australian national in specialty occupation (E-3 visa)
A national of a country with which the U.S. has entered into a treaty of commerce and navigation, and his/her spouse and children if accompanying or following to join him/her: 1. solely to carry on substantial trade in services or technology principally between the U.S. and the foreign state of which he/she is a national (E-1), or 2. solely to develop and direct the operations of an enterprise in which he/she has invested, or of an enterprise in which he/she has invested, a substantial amount of capital (E-2), or 3. a national of the Commonwealth of Australia coming to perform services in a specialty occupation (i.e. primarily requiring theoretical and practical knowledge of a specialize nature and attainment of a bachelor’s degree or above as a minimum entry level requirement) where the U.S. employer agrees to conditions of employment.
A current list of countries with whom the U.S. has treaties can be obtained at <http://foia.state.gov/masterdocs/09fam/0941051X1.pdf>. Currently the U.S. has treaties that provide for employment based on trade or investments with the following countries: Albania (E-2); Argentina (E-1/E-2); Armenia (E-2); Australia (E-1/E-2/E-3); Azerbaijan (E-2); Bahrain (E-2); Bangladesh (E-2); Belgium (E-1/E-2); Bolivia (E-1/E-2); Bosnia & Herzegovina (E-1/E-2); Brunei (E-1); Bulgaria (E-2); Cameroon (E-2); Canada (E-1/E-2); Chile (E-1/E-2/H-1B1); China (Taiwan)(E-1/E-2); Colombia (E-1/E-2); Congo (Brazzaville) (E-2); Congo (Kinshasa) (E-2); Costa Rica (E-1/E-2); Croatia (E-1/E-2); Czech Republic (E-2); Denmark (E-1); Ecuador (E-2); Egypt (E-2); Estonia E-1/E-2); Ethiopia (E-1/E-2); Finland (E-1/E-2); France (E-1/E-2); Georgia (E-2); Germany (E-1/E-2); Greece (E-1); Grenada (E-2); Honduras (E-1/E-2); Iran (E-1/E-2)(inoperative due to a 1997 executive order preventing trade with Iran); Ireland (E-1/E-2); Israel (E-1); Italy (E-1/E-2); Jamaica (E-2); Japan (E-1/E-2); Jordan (E-1/E-2); Kazakhstan (E-2); Korea (South) (E-1/E-2); Kyrgyzstan (E-2); Latvia (E-1/E-2); Liberia (E-1/E-2); Lithuania (E-2); Luxembourg (E-1/E-2); Macedonia (E-1/E-2); Mexico (E-1/E-2); Moldova (E-2); Mongolia (E-2); Morocco (E-2); Netherlands (E-1/E-2); Norway (E-1/E-2); Oman (E-1/E-2); Pakistan (E-1/E-2); Panama (E-2); Paraguay (E-1/E-2); Philippines (E-1/E-2); Poland (E-2); Romania (E-2); Senegal (E-2); Serbia & Montenegro (E-1/E-2); Singapore (E-1/E-2/H-1B1); Slovakia (E-2); Slovenia (E-1/E-2); Spain (E-1/E-2); Sri Lanka (E-2); Suriname (E-1/E-2); Sweden (E-1/E-2); Switzerland (E-1/E-2); Thailand (E-1/E-2); Thailand (E-1/E-2); Togo (E-1/E-2); Trinidad & Tobago (E-2); Tunisia (E-2); Turkey (E-1/E-2); Ukraine (E-2); United Kingdom (E-1/E-2); Yugoslavia (E-1/E-2)(successor nations of Bosnia, Herzegovina, Croatia, the Former Yugoslav Republic of Macedonia, Slovenia, Serbia and Montenegro are bound by the treaty in force at the time of the Socialist Federal Republic of Yugoslavia’s (SFRY) dissolution.
Eligibility for this type of visa requires, in addition to proving the applicant’s nationality, clear and substantial documentation of the other factors for visa issuance.
Admission to the U.S. is for an initial one year period which can then be renewed for 2 year periods indefinitely while the investment entity remains viable.
II. North America Free Trade Act (NAFTA)3 (TN visas)
NAFTA provides for admission of certain citizens of Canada or Mexico who come to engage in professional activities. These may include: business visitors who receive no salary in the U.S. who come to engage in an occupation or profession in research and design; growth, manufacture and production; marketing; sales distribution; after-sales services; and general service, including management and supervisory personnel engaged in commercial transactions, financial service personnel, public relations personnel, tourism personnel, tour bus operators, translators; other professionals with specified degrees or experience described at 8 C.F.R. § 214.6(c) may come to the U.S. for employment as: accountant; architect; computer systems analyst; disaster relief insurance claims adjuster; economist; engineer (including software engineers); forester; graphic designer; hotel manager; industrial designer; interior designer; land surveyor; landscape architect; lawyer; librarian; management consultant; mathematician; range manager/range conservationist; research assistant working in a post-secondary educational institution; scientific technician/technologist; social worker; sylviculturist; technical publications writer; urban planner; vocational counselor; medical/allied professionals- dentist, dietician; medical laboratory technologist; nutritionist; occupational therapist; pharmacist; physician; physiotherapist/physical therapist; psychologist; recreational therapist; registered nurse; veterinarian; Scientists- agriculturist; animal breeder; animal scientist; apiculturist; astronomer; biochemist; biologist; chemist; dairy scientist; entomologist; epidemiologist; geneticist; geochemist; geologist; geophysicist; horticulturist; meteorologist; pharmacologist; physicist; plant breeder; poultry scientist; soil scientist; zoologist; Teachers- college; seminary; university. These professions do not permit “self-employment” but require a job offer. Some of the professions may require licensure to practice in the U.S., but licensure is not a requirement for admission and may be obtained after admission to the U.S.
A. Special NAFTA Provisions for Canada
Canadian citizens are visa exempt under U.S. law, so they may apply for TN visa status directly at a U.S. port of entry. Under NAFTA, if outside the U.S., Canadian professionals and intracompany transferees coming as executives, managers or specialized knowledge personnel can present an employment letter or petition for “L” visa classification at a U.S. port of entry or pre-clearance/preflight station.
B. NAFTA Provisions for Mexico
Mexican citizens must apply for a visa to the U.S. If outside the U.S. they may apply for a TN visa at a U.S. consulate with a visa application and a letter of employment that establishes their eligibility.
Spouses and minor children of TN visa holders may be admitted to the U.S. in treaty dependant (TD) status, but may not work in the U.S. without specific authorization.
Domestic servants of a TN may be issued a visitor for business (B-1) visa.
Admission on TN visa status is for a one-year period which may be renewed without limit, unless the person is determined to be an intending immigrant to the U.S.
NAFTA also provides for E-1 and E-2 visa treaty visa status (see above).
III. U.S.-Chile Free Trade Agreement and U.S.-Singapore Free Trade Agreements (Fast Track H-1B1 visas)4
Under the provisions of these treaties, nationals of Chile and Singapore qualify for E-1 (Treaty Trader) and E-2 (Treaty Investor) visas as well as H-1B1 visas for persons in a specialty occupation requiring theoretical and practical specialized knowledge and attainment of a bachelor’s degree or above in the specialty area. In addition to the specialty occupations that would be recognized as professional under the H-1B category, the U.S.-Chile Free Trade Agreement adds Agricultural Manager and Physical Therapist (for persons from Chile) and Management Consultants and Disaster Relief Claims Adjusters (for persons from Chile or Singapore).5 Unlike the H-1B category, no prior petition need be filed. The H-1B1 visa may be applied for directly at a U.S. consulate, albeit with proof of compliance with the Labor Condition Application requirement. Changes of status in the U.S. do require a petition to the U.S. Citizenship & Immigration Services processing center.
Other nationality-specific provisions
U.S. law offers a cornucopia of nationality-based provisions that provide for temporary or permanent employment in the U.S. These are largely designed to respond to contemporary events around the world, or reflect the foreign relations priorities of the United States. Many of these are provisional in nature, some expire as specified in the enabling legislation, and some arise from prior laws that provided temporary solutions that are later judged to require permanent legal status. This dynamic situation can be viewed with respect to the following laws:
1. The Real I.D. Act of 2005: among many other provisions, this law provided Australian nationals in a specialty occupation a new temporary employment based visa (E-3)6
2. Cuban Refugee Adjustment Act of 19667 – provides for adjustment for Cuban citizens who are in the U.S. for one year after an admission or parole. There is no application cut-off date for this benefit.
3. Nicaraguan and Central America Reform Act (NACARA)8 - provided for adjustment of status for Nicaraguans and Cubans in the U.S. as of December 1, 1995; certain Salvadoran and Guatemalan citizens who registered for benefits under the American Baptist Church class action lawsuit or applied for asylum in the U.S. before April 1, 1990; and Eastern Europeans in the U.S. as of December 31, 1991 who applied for asylum before December 31, 1991;
4. Haitian Refugee & Immigration Fairness Act of 1998 (HRFA)9 - provides for adjustment for Haitians who filed for asylum before December 31, 1995 or were paroled in by that date;
5. Temporary protected status (TPS)10 - permits citizens of certain countries experiencing humanitarian or natural disasters to remain and work in the U.S. for specified periods;11
6. Irish Peace Process Cultural Training Program Act of 1998- provides for Q-2 and Q-3 visas for certain young (21-35) citizens of the UK or certain counties of the Republic of Ireland to enter the U.S. for up to 2 years to participate in a cultural training program to obtain employment skills and experience of coexistence and conflict resolution in a diverse society. Requires two-year home return after completion in the U.S.12
7. Chinese Student Adjustment Act of 1992- provided for adjustment of status for Chinese nationals in the U.S. as of April 11, 199013
8. Soviet Scientists Immigration Act of 199214 - provides for adjustment of up to 750 scientists from former Soviet countries- this expired after 4 years but was revived by the Foreign Relations Authorization Act, FY 2003,15 which reopens the filing period until September 30, 2006 and raises the number who can qualify to 950.
9. Syrian Adjustment Act16 - permitted adjustment of status for Syrian Jews in the U.S. after December 1, 1991 and who filed for adjustment by October 27, 2001;
10. Vietnam, Cambodian and Laos Adjustment Act17 - permitted adjustment by nationals of these 3 countries if paroled and physically in the U.S. before October 1, 1997.
11. National Defense Authorization Act for Fiscal Year 200618 - provides opportunity to apply for permanent resident status to certain Iraqi and Afghanistan citizens who served the U.S. military as translators.
Reciprocity-based legal provisions by which employment may be affected by nationality
U.S. law provides for additional temporary visa categories that provide for employment or business activities in the U.S. The visa holder’s nationality could impact whether these visas are available and, if so, under what terms and conditions they may be granted. The provisions include visas for:
1. Foreign government officials, family and servants (“A” visas)
2. Foreign government representatives to international organizations, family members and servants (“G” visas)
3. Foreign media representatives (“I” visas)
4. Exchange visitors, (“J” visa), particularly DOS Skills list for persons subject to the INA § 212(e) 2 year foreign residence requirement
5. Temporary visitors on the Visa waiver program (VWP)19 - the VWP, permits admission for up to 90 days without a visa for visitors (no employment but certain business visits are allowed) to citizens of: Andorra, Australia, Austria, Belgium, Brunei, Denmark, finland, France, Germany, Iceland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, New Zealand, the Netherlands, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.
Conclusion
The United States has over the years responded to economic trends and the needs of persons of many countries who want or need to engage in business activities or employment in the U.S., by entering into treaties of commerce, friendship and navigation, or passing laws that respond to current events. This historical trend reflects, in part, the national character of the U.S. and will no doubt continue in the future.
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1. © 2005 Scott D. Pollock, all rights reserved. Scott D. Pollock is the founder of Scott D. Pollock & Associates, P.C. in Chicago, where he practices U.S. immigration and nationality law. He graduated cum laude from Brooklyn Law School in 1985. He has served as Chicago Chapter Chair of the American Immigration Lawyers Association, chair of the Immigration and Nationality Law Committee of the Chicago Bar Association, and as an officer on the Section Council for International and Immigration Law of the Illinois State Bar Association. His firm represents universities, religious institutions, financial institutions and other businesses that seek to employ foreign nationals in the United States, families who utilize the immigration laws to reunite their family members, and individuals seeking to reside temporarily or permanently in the U.S. He has litigated cases in the federal Courts of Appeals, including Kuhai v. INS, 199 F.3d 909 (7th Cir. 1999)(reversing the IJ and BIA’s denial of asylum), Bace v. Ashcroft, (reversing the IJ and BIA’s denial of asylum), and Morales-Morales v. Ashcroft (concluding that the Government’s informal return of an alien to Mexico does not interrupt her continuous residence in the U.S. for purposes of claiming cancellation of removal). He can be reached at 312–444–1940 or at spollock@lawfirm1.com.
2. This situation is in contrast to the U.S.’s pre-1965 immigration laws which were marked by restrictionist racial and national origin quotas. See, e.g. Kurzban, Ch. 1 Immigration Law Sourcebook, “Brief History of Immigration Laws”; Boswell, Ch. 1 Essentials of Immigration Law, “The Administration and Development of Immigration Law and Immigrants’ Rights Under the Constitution.”
3. 8 U.S.C. §1184(e)(2), INA § 214(e)(2). See www.nafta-sec-alena.org for NAFTA text and information
4. 8 U.S.C. §101(a)(15)(H)(i)(b)(1); INA § 101(a)(15)(H)(i)(b)(i);
5. 20 C.F.R. § 655.715.
6. Section 501, Div. B of Emergency Supplemental Appropriations for Defense, the Global War on Terror, and Tsunami Relief, 2005, P.L. 109-13, 119 Stat. 231 (May 13, 2005)
7. Public Law (“P.L.”) 89-732
8. P.L. 105-100, 111 Stat. 2160 (Nov. 19, 1997) amended by PL 105-139, 111 Stat. 2644 (Dec. 2, 1997)
9. P.L. 105-277, Div. A, §101(h), Title IX, 112 Stat. 2681
10. TPS was enacted in the Immigration Act of 1990 (IMMACT90), P.L. 101-649, 104 Stat. 4978, codified in 8 U.S.C. § 1254a, INA §244.
11. For a current list of countries for which TPS is available: <http://uscis.gov/graphics/services/tps_inter.htm>.
12. P.L. 105-319, 112 Stat. 3013 (Oct. 30, 1998); P.L. 108-449, 118 Stat. 3469 (Dec. 10, 2004).
13. P.L. 102-404, 106 Stat. 1969 (Oct. 9, 1992)
14. P.L. 106-378, 114 Stat. 1442 (Oct. 27, 2000)
15. P.L. 107-229, 116 Stat. 1360 (Sept. 30 2002)
16. P.L. 106-378, 114 Stat. 1442 (Oct. 27, 2000)
17. P.L. 106-429, 114 Stat. 1900 (Nov. 1, 2000)
18. P.L. 109-163, 119 Stat. 3136 (Jan. 6, 2006)
19. INA § 217, 8 U.S.C. § 1187
On September 1, 2006, The Chicago Council on Foreign Relations was renamed The Chicago Council on Global Affairs. The new name reflects the organization’s expanding efforts to contribute to the global discourse on current critical issues. Over the months and years ahead, the substance of the Council’s new strategic direction will include efforts to: 1) expand the range and relevance of public programs and address topics not traditionally on the foreign policy agenda; 2) broaden participation in the Chicago forum, reflecting the changing demographics of the city and region; 3) bring fresh information and insights from the heartland to the national and international discourse; 4) convene dialogue among Chicago’s civic and business leaders and their counterparts throughout the world. The Council hosts a variety of events on current global issues. For example, during the month of September, the Council hosted a program on India with Scott Bayman, President and CEO of General Electric India and another one with Ian Bremmer, President of the Eurasia Group on the “Global Game of Risk and Reward.” For more information about this organization and its events, please visit <http://www.ccfr.org>.
A new addition to the Law Library of Congress is the Global Legal Monitor. Available as a PDF document, the Global Legal Monitor can be found at <http://www.loc.gov/law/public/reports/GLM.pdf> or by clicking the Global Legal Monitor link displayed on the Law Library of Congress main page. Through this Web site one can view brief summaries of recent cases and new or amended laws from countries all over the world. It is not specified how frequently the new issues of the Global Legal Monitor will be available, but thus far two issues have been published, one for May and another for June/July.
According to the “Greetings from the Law Librarian,” the Global Legal Monitor is intended for individuals who find “interest in legal developments around the world.” The material included in the publication derives from “official national legal publications” and “reliable press sources.” The Global Legal Monitor obtains additional information from the Global Legal Information Network, another internet service provided by the Law Library of Congress.
Because the Global Legal Monitor is available as a PDF document, viewers can easily scroll through the pages and jump to topics of interest. The first few pages of the newsletter conveniently give an initial break down of what the viewer can expect. At the top of the page is a section titled “Featured Topics” that lists subjects covered in the newsletter. These topics include: Attorneys and Judges, Communications and Electronic Information, Election/Campaign Law, Employment Law, Family Law, Foreign Trade and Trade Regulation, Health Law & Regulation, Human Rights, Immigration and Nationality Law, International Relations, and Terrorism. By clicking on any of these topics, a viewer is automatically directed to the articles related to that specific topic. Below the Featured Topics is a list of countries and organizations that are featured within the newsletter. The Table of Contents is divided into sections related to the previously mentioned “Featured Topics” and lists the title of the article in addition to which country the article pertains to. These tools make the site easy to navigate and locate information relative to your particular interests or research.
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Caitlyn McEvoy is a 2006 graduate of Bradley University with a Bachelor of Arts in History and a concentration in International Studies.
Building Bridges: An Egypt-U.S. Free Trade Agreement is a polemic analysis of Egyptian-United States trade relations. An undertaking of both Harvard University’s John F. Kennedy School of Government and The Egyptian Centre for Economic Studies, the books aim is to influence U.S. policymakers to establish an FTA between the two nations. Written before 9/11, the books overall thesis reflects a different era of U.S. relations with the Arab world where economic factors were more predominant than national security. However, especially with the Bush administration’s emphasis on democratization, the idea of a U.S.-Egyptian FTA makes even more policy sense in strengthening ties with a stalwart American ally and trying to bring more stability in the region. As far back as the Reagan administration, some U.S. policymakers have feared the overthrow of the Egyptian government and the establishment of an Islamic republic. With the gains the Muslim Brotherhood have had vis-à-vis democratic elections to the Egyptian Parliament it is difficult to decipher the regime’s overall stability with regard to Islamic Fundamentalism.
Egypt’s leading exports to the U.S. are textiles and oil with much of U.S investment in the oil sector. No less important in light of developments in the global energy market. Conversely, next to the European Union, the U.S. is the leading exporter to Egypt accounting for one fifth of all imports, and tends to be mainly agriculture and arms. U.S. direct aid is the most important factor in the countries’ relationship with Egypt receiving some $2.3 billion a year in aid second only to Israel.
The basis for a U.S.-Egypt FTA dates back to 1997 when Egyptian President Hosni Mubarak and U.S. Vice President Al Gore agreed for the two countries to explore such a possibility. The mere notion of an FTA reflects Egypt’s willingness to liberalize their economy and enter into global markets. Moreover, an FTA would further promote economic growth as well as reform. Egypt has already established FTAs with other Arab states, and also been moving closer to such an arrangement with the European Union. The immediate benefits to the United States are more strategic than economics by aiding a country that is indispensable to the Middle East peace process. However, a stronger Egyptian economy would allow the U.S. to begin phasing out the large amount of economic assistance currently being provided.
The authors make several proposals for the form a U.S.-Egypt FTA may take. First is one similar to the U.S.-Israel FTA that eliminates tariffs and border restrictions. The second is one more along the lines of NAFTA which would include services, foreign investment, regulatory practices, and government procurement, or some mixture of the two forms. The authors argue for a mixture as the best possible FTA from the Egyptian perspective. Robert Lawrence advocates the over-arching NAFTA-style FTA with Egypt as the most beneficial from the American perspective.
Overall this a very technical book that will be of more interest to those working in international trade rather than the casual reader or a scholar or policy analyst in Middle Eastern studies. Considering the political changes in the region since 9/11, the work is lacking in not addressing the security concerns and only indirectly the issue of regional stability. Thus, this is a good starting off point for those interested in the idea of a U.S.-Egypt FTA, and who would consider research building upon it. I believe the authors have made a good point that an FTA with Egypt’s time may have arrived, perhaps even more so, as the U.S. has a strong interest in promoting peace and regional stability in the Middle East.
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Christopher Scott Maravilla, Attorney, Washington, DC. JD, Georgetown University Law Center, Former Law Clerk to Justice Dale Wainwright, Texas Supreme Court and Judge Roger Andewelt, U.S. Court of Federal Claims and may be reached at cmaravilla@hotmail.com.
The American Regulations of secured transactions as they relate to agriculture, set forth under Article 9 of the Uniform Commercial Code [hereinafter UCC-9], have been deemed the most revolutionary and important article in the entire UCC. One of the most prominent characteristics of UCC-9 is that it unifies many sorts of similar transactions, which otherwise belong to different legal regimes, including agriculture.
Under UCC-9, “collateral” refers to the personal property in which a security interest is created.1 Whether tangible or intangible, it can serve as collateral to create a security interest. In the agriculture area, almost everything on the farm, including farm products2 and inventory,3 can become collateral.
Chinese Regulations on Agriculture under Chinese Secured Transactions Law
Chinese Secured Transactions Law was passed on June 30, 1995 and went into effect on October 1, 1995. Just like the American UCC-9, the Chinese secured transactions law (the literal translation from Chinese is “Chinese Secured Law”) also greatly encouraged economic development in China. Unfortunately, however, Chinese secured transactions law, like so many other features of Chinese law and market development, does not seem to have benefited the Chinese farmer. In a country where close to three out of five of the citizens still farm, this “economic apartheid” becomes the rule, rather than the exception.
Comparatively, Chinese secured transactions law has a different system from UCC-9. The Chinese law regulates all forms of guaranty as a general concept. These include the debtor’s personal pledge, which provides the creditor with an interest in the debtor’s overall property, rather than in any specific property. Mortgages also come under the Chinese secured transactions law, under which the creditor maintains an interest without having to possess the collateral. Pawns are covered, but require possession by the creditor. Finally, the law provides for liens, with possession by creditor, and regulated by law in some special circumstances, though but not by contract, as under UCC-9.
In terms of the content of the Chinese secured transactions law, mortgages have a scope that is by and large similar to UCC-9, using both personal property and real property as collateral. The creditor does not need to possess the collateral in order for creditor to secure its lien. In China, mortgages can also apply to agriculture.
Comparatively, under Chinese secured transactions law provision 34, “Collateral” includes the following items and rights:
(1) the house and other matter fixed on the land owned by the mortgager;
(2) the machine, transmitting instrument and other property owned by the mortgager;
(3) the usage right of national land, house and other matter fixed on the land that the mortgager has the right to handle.
Comparison of Agriculture Guaranty between America and China
General Comparison under the Two Jurisdictions
Under American legislation, the scope of collateral that a farmer can use to secure his creditor’s interest of his creditor is very broad. Almost all personal property can be used in exchange for credit. Under this system, countless American small and middle-size businesses or farms can be easily created and have an opportunity to be economically powerful.
Chinese legislation is different from UCC-9. On the surface, Chinese secured transactions law sets forth a broader scope of collateral than UCC-9, because, in addition to personal property, it permits house, usage right of national land, and so on, to be collateral. However, both in theory and in practice, most experts and practitioners are inclined to see real property as the only viable collateral. Personal property, other than pawn, does not satisfy creditors as a secured lien source in China. Instead, the Chinese creditor would rather possess the collateral. As its name implies, personal property is a “movable good.” Real property, obviously, is not.
Another difference in Chinese secured transactions law is registration, which is roughly analogous to the financing statement in American law. Under UCC-9, there are some perfection forms, including filing, possession, and control. Among these forms, the financing statement is the most popular and important one. The financing statement is most similar to the Chinese registration system because the creditor does not have to possess the collateral in order to secure his interest. Under UCC-9, perfection is not necessary for enforcement, because a security interest becomes enforceable only once it attaches.4 However, by perfecting his interest, a creditor is able to manage his risk to some extent by securing a preferred place over non-perfected interests in priority contests. In America, under the background of modern and advanced transaction forms, the financing statement is widely used throughout the country.
In China, on the other hand, the reality is somewhat different. Under Chinese secured transactions law, a debtor has to register the collateral to make the mortgage agreement effective when he seeks to put up the following items as collateral: the usage right of the land without matters fixed on it; urban real property; the house that belongs to a rural enterprise; timber in forested areas; vehicles; and the equipment and other personal property of enterprises. This is a mandatory provision, which means that these mortgage agreements are not effective in China until they are registered. Therefore, as for these collateral items in China, the registration is not just a supplement, as in American law. Instead, registration demonstrates the strict control by the Chinese government in the area of mortgages. When compared with the strict administration of the above types of collateral, other types of personal property may appear unimportant.
Regulation regarding other personal property is almost the same as that in America. Chinese secured law provision 43 does not require other personal property to be registered as a condition to serve as collateral, but the registration can be used against a third party to get priority, which is the same as that in America. However, under the pressure of the pawn regime and the mandatory registration of those special goods described above, average personal property as a source of secured interest almost disappears in practice.
Special Characteristics in China in Practice
In China, the farmers’ economic situation is no better than that of the majority of the Chinese population—it is poor. Under the market economy system as it exists in China, farmers are unable to get financial support from society. This blocks the development of Chinese agriculture and reduces the wealth of Chinese farmers. Under Chinese secured transactions law, a farmer cannot get credit based on believable collateral, no matter what kind of property it is, whether real or personal. This has become an enormous problem. Here, I summarize some of the reasons, which are rooted not only in Chinese legislation, but also in the Chinese social reality.
First of all, Chinese farmers cannot use land and house as collateral to get credit. Under provision 10 of the Chinese Constitution, all the land in the cities belongs to the country. The other land, outside cities, both in the suburbs and in rural areas, belongs to the collectivity of farmers, but not to the individual farmer. Therefore, in China, all individual people and other organizations or enterprises, including farmers, cannot own land nor can they use the ownership of the land as collateral.
In China, special regulations sometimes govern usage rights in land. Rural land usage is divided into four general categories. The first of these is the land tilled by the farmer. This land is under absolute government regulation. Farmers may not change how they use it, nor can they make any additions to it. A farmer may not build a building on his farm land, for example. The second category is the land on which the farmers actually live. Badlands; and the land used by rural enterprises are the third and fourth, respectively. The usage right of both the crop-producing farm land and the residential farm land is prohibited from serving as collateral under provision 37 of the secured transactions law. The usage right of Badlands can become collateral, but its characteristic means that it has little or no value until it has been reclaimed or planted for a long term. The usage right of land used by rural enterprises is suitable to become collateral. Under Chinese secured transactions law provision 36, item 3, the usage right of the land used by rural enterprises can not be collateralized separately, but can be put up as collateral together with the house fixed on it. Under the Chinese market economy, rural enterprises are owned by all the farmers. Collectively, therefore, farmers can obtain some credit, through their usage right in the land. The individual farmer, on the other hand, has a very tough time getting enough financial support.
Secondly, Chinese farmers can hardly use personal property as collateral to get credit. On the one hand, a farmer can not get credit using personal property as non-possessed collateral, as discussed above. On the other hand, Chinese farmers can scarcely provide personal property valuable enough to get the credit. For the most part, Chinese agriculture is just now entering a nationwide stage of mechanization. Not all Chinese farmers have their own agricultural machines, nor does the government have any obligation to provide them.
Unlike UCC-9, original Chinese secured transactions law has no special provision setting forth farm products. Therefore, in practice, the bank does not usually give credit. This is so because Chinese law deems farm products to be attached to the special collective real property.5 As such, they may not serve as collateral. In 2000, the Chinese Supreme Court rendered an advisory opinion, called a “judicial explanation” in Chinese law, holding that farm products were permissible collateral even when still fixed in the ground. While it is true that judicial decisions do not have equivalent legal force to legislation in China, most Chinese academics, judges and practicing lawyers view this explanation as an indication that farm products can indeed serve as separate collateral, distinguishable from the land in which they are fixed, which may not serve as collateral. Prior to this explanation, the legal community was confused about the status of crops, and usually classified them as part of the land. Unfortunately, up until now, Chinese farmers have still not been able to obtain loans based on their crops.
Day-to-day operations of the Chinese financial system further prevent farmers from getting credit. On the one hand, a high proportion of capital earmarked for agricultural credit is embezzled. Agricultural operations are very risky because the production period is longer than other industries, while the return is relatively lower than most other industries. Therefore, many banks and financing organizations prefer to give credit to other areas in order to avoid or lessen the risk. On the other hand, as financial risk management has become more and more rigid in the past few years, the staff in banks and other financing institutions are extremely stingy in extending credit, lending much less than what is reasonable. Furthermore, the right to extend credit in banks has become more and more centralized, and in many cases the local staff has no right to give credit to local farmers. At the same time, the higher up the real decision-makers are, the harder it is for the average farmer to be able to contact them and even attempt to get credit.
In China, the disparity of income level between urban and rural areas has become ever greater. Finding a way to improve the income level of China’s 800 million farmers has become the most pressing problem that Chinese government faces. At the same time, farmers, as the people in the weakest economic position in the country, suffocate in a morass of no credit.
Conclusion
Despite the seemingly broader scope of acceptable collateral in Chinese secured transactions law, when compared to American legislation under UCC-9, it is obvious that the Chinese law is ineffective in practice. If the Chinese government wants to resolve this problem, it should enact more detailed procedures and make more specific collateral practical. Furthermore, banks need to amend their policy to serve the farmers and maintain a balance between the credit risk and the benefit to farmers.
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Liu Xin is a graduate (master’s degree in commercial law) of the Jilin University School of Law, located in Changchun, Jilin, China. Liu Xin is also a recent graduate of The John Marshall Law School, in Chicago, where he received an LL.M. in Global Legal Studies in May 2006. Liu Xin is currently living in Beijing, where he will start work in September.
1. RUSSELL A. HAKES, THE ABCS OF THE UCC, (REVISED) ARTICLE 9 SECURED TRANSACTIONS 7 (2000).
2. Under § 9-102 (a) (34), “farm products” means goods, other than standing timber, with respect to which the debtor is engaged in a farming operation and which are:
(A) crops grown, growing, or to be grown, including:
(i) crops produced on trees, vines, and bushes; and
(ii) aquatic goods produced in agricultural operations;
(B) livestock, born or unborn, including aquatic goods produced in agricultural operations;
(C) supplies used or produced in a farming operation; or
(D) products of crops or livestock in their un-manufactured states.
3. Under § 9-102 (a) (48) “Inventory” means goods, other than farm products, which:
(A) are leased by a person as lessor;
(B) are held by a person for sale or lease or to be furnished under a contract of service;
(C) are furnished by a person under a contract of service; or
(D) consist of raw materials, work in process, or materials used or consumed in a business.
4. HAKES, supra note 1 at 33.
5. Chinese Secured Law, provision 34, items 1 and 37.
Three recent articles in the English language edition of the Xinhua News Agency are notable to changes in the legal structure in China and could be important to lawyers whose clients have, or may have in the future, business dealings in China. These are: 1) the passage of a bankruptcy law; 2) the establishment of the first Sino-Foreign asset management firm; and 3) the announcement recent trade agreements between China and the US.
The Bankruptcy Law
The current bankruptcy law in force discounts the standing of foreign investors and creditors with regard to the standing of the laid off employees. As a result, investing in Chinese companies puts a foreign investor or creditor behind the employees if the company goes down.
No more. Starting on June 1, 2007, that all changes. The new bankruptcy law, which was passed on August 26, puts foreign investors and creditors in front of laid off or terminated employees. As reported, Professor Wang Xin of Renmin University says what this means is a heightened level of confidence and security for foreign investors who form joint partnerships with Chinese companies. Additionally, the law also includes that financial institutions can apply for bankruptcy protection as well as foreign firms.
There are some notable exceptions for nearly 2000 state owned enterprises (SOEs). The law allows these SOEs the capacity to ask for bankruptcy protection prior to June 1, 2007 and be afforded the resources of the Chinese government to pay off their debt.
A note for the future also comes with this announcement. Currently, social insurance is a buy-as-you-go program in China. This was one of the major changes that the market economy ushered in, much to the detriment of the population of China. The announcement of the new law has experts in the field of economics calling for a new social insurance and unemployment system to protect workers in the event of a business failure.
The Sino-Foreign Asset Group
A new management group has been formed in China - Rongde Asset Management Co. Ltd. While a Chinese company Huarong Asset Management Company holds a 51 percent stake in the new company, International Finance Group as well as a joint venture between Deutsche Bank and AIG own the remaining 49 percent.
The purpose of this asset management group is to handle bad (non-performing) assets from Chinese banks. Rongde and three Chinese asset management firms will split hundreds of billion yuan worth of bad assets taken from Chinese banking institutions each year. This is the first time that China has allowed foreign investors direct access to the financial sector within China in this manner.
Trade Announcement
On Tuesday, August 28, 2006, US Trade Representative Susan Schwab identified four important trade agreements with China. The first two were implemented in April 2006 and the last two are new.
Of the former, the first was on the announcements that China would open the Chinese market to US beef producers. Additionally, China announced that it would eliminate some of the certification requirements and duplicative testing which had been required of foreign (mainly US) medical equipment.
The latest announcements were tossed away in a one-sentence report in the Xinghua New Agency release. These were that China would require Chinese computer manufacturers to install legal operating software on all computers before they can leave the factory. By some accounts, Chinese IP estimates that 95 percent of the computers in China have illegal (pirated) operating systems. Additionally, Schwab announced that the Chinese government committed itself to close operators who pirate CD and DVDs. As anyone who has recently visited China knows, pirated CDs and DVDs seem to be the biggest street business in China, especially in major cities like Beijing and Shanghai.
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John T. Baun is a 3L law student at The John Marshall Law School in Chicago and a PhD candidate at University of Nebraska-Lincoln. Mr. Baun has recently returned from a summer study and research at China University of Political Science and Law (CUPL) and Tsinghua University in Beijing. Mr. Baun was involved with international business for many years as the owner of a company exporting to Europe and Asia.