On July 1, 1997, Hong Kong reverted back to China. Prior to that, Hong Kong citizens who were landed immigrants of Canada were considered visa-exempt. Will this change now that Hong Kong is part of China?

According to a recent Department of State cable (State #116907), Hong Kong citizens should continue to be visa-exempt as long as they continue to hold travel documents identifying them as British Nationals. The British Dependent Territories Citizen passport previously issued in Hong Kong ceased to be valid as of July 1, 1997 and will not longer be accepted. However, the British National (Overseas) passport will evidence that the bearer is a British National.

A Hong Kong Special Administrative Region passport, Hong Kong certificate of identity or document of identity does not identify the bearer as a British National. Therefore, a landed immigrant who presents these travel documents will NOT be visa-exempt.

In summary, whether the visa exemption continues in a particular case will depend upon what type of travel document the alien presents along with his or her Canadian record of landing.

I am a Canadian citizen who is in the United States on an H-1 visa. As of May 1, 1997 I became a pending immigrant as I entered the final adjustment of status phase of my LPR process. Due to a family wedding in Canada, I applied for and was granted advance parole to travel to Canada. Upon arriving back in the US, I was informed that due to a recent regulation/law change, my H-1 was now invalid and that I was required to seek work authorization permit in order to continue working. I am currently off work awaiting this authorization. Can you tell me when this regulation changed and how or why it causes my H-1 to be invalid?

According to the INS, an adjustment applicant who leaves the United States pursuant to advance parole and later re-enters loses his or her nonimmigrant status. He or she instead re-enters as an adjustment applicant pursuant to advance parole. As an adjustment applicant, the alien is not entitled to work without an employment authorization, which can be issued to pending adjustment applicants. The principal alien (and dependents) should obtain an employment authorization from a local INS office prior to the principal alien's departure from the United States. However, this is not the result of a recent change in the law.

I am an U.S. citizen and am sponsoring my parents (Hong Kong nationals) for immigration to the United States. I have filed an I-130 application recently, on which I specified that my parents would be attending an immigration interview in Hong Kong. Currently, my parents are staying in Canada on a tourist visa. I'd like to know if it is possible for them to be interviewed in Toronto, Canada instead.

The Department of State regulations at 22 CFR §42.61 say that an alien should apply for an immigrant visa in the consular district where he or she resides, unless otherwise directed by the Department of State. The term "residence" is defined at INA §101(a)(33) as the alien's "place of general abode; the…principal, actual dwelling place in fact, without regard to intent."

In other words, the alien’s residence is the place where the alien in fact lives and under most common circumstances from which the alien conducts his or her life. It is factual residence that counts; an alien need not show a legal status of residence within the country where application is made. The Department of State's rationale is that fraud or other grounds of ineligibility are more easily spotted at the consular office of the alien's residence.

According to 22 CFR §42.61, an exception to the residence requirement can be made where an alien is physically present in the consular district and can establish that he or she will be able to remain there for the period necessary to process the visa. The National Visa Center will not schedule an immigrant visa appointment at a U.S. consulate in Canada unless the alien can prove Canadian citizenship, legal residence in Canada or proof of his or her ability to remain in Canada for at least six months. Legal status as a visitor, even if for six months, is insufficient.

Even if your parents did have sufficient proof of residence, immigrant visa interviews are only conducted in Montreal, Canada. No other U.S. consulate in Canada is processing immigrant visas.

Your parents should continue processing in Hong Kong.

I plan to study Molecular cell biology at the United States next year. According to my grant, I have to hold a J-1 visa during my study. After that I will pursue further education in clinical training in Internal Medicine as a resident. Could I hold J-1 visa again or I must return to my country at least 2 years before I start my clinical training?

According to INA §212(e), J-1 visitors who are subject to the two-year home country requirement are disqualified from H, L nonimmigrants status and permanent residence. However, it does not prevent an alien who is subject to the two-year home country requirement from pursuing a subsequent J-1 program. Further, even if the second J-1 program also subjects you a two-year home country requirement, you should be able to satisfy both requirements concurrently. In other words, after you have completed the second program you should only have to return to your home country for a period of two years, not four.