State Dept. Cable On Section 222(g) (June 1999)
R 071654Z JUN 99
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
INFO DIRNSA FORT GEORGE G MEADE MD
HQ USINS WASHDC

Unclas State 105097

Visas

E.O. 12958: N/A
TAGS: CVIS
Subject: consolidated summary of INA 222g guidance

Ref: a) 96 state 208799 b) 96 state 225321
c) 96 state 232219 d) 97 state 12764 e) 98 state 51296
f) 98 state 136516 g) 98 state 237895

1. Summary. REFTELS provide detailed guidance on the interpretation of INA 222(g), relating to aliens who remained beyond their authorized nonimmigrant stay. As posts are aware, a portion of the earlier guidance was superseded by later ALDACS. For posts' convenience, department is summarizing below the current guidance on INA 222g, so that posts will have a quick, up-to-date resource that consolidates the key information contained in the various REFTELS. End summary

2. Under INA 222(g), if an alien overstays on a nonimmigrant visa, that visa is automatically voided. In addition, the alien must apply for future NIV'S in his/her country of nationality, unless the alien qualifies for an "extraordinary circumstances" exemption.

Who is potentially subject to 222(g)?
3. 222(g) is narrower in scope than many realize. It is important to keep in mind the following:
  • 222(g) applies only to NIV holders and NIV applicants. It has no relevance in IV cases.

  • 222(g) applies only to overstayers who actually entered on some type of nonimmigrant visa. The provision does not apply to previous overstays relating to entries made without a visa. Thus, aliens who overstayed on VWPP, on the Canada visa waiver, or in parole status, are not/not subject to 222(g). Similarly, 222(g) does not apply to aliens who entered without inspection.

  • Although any alien who overstays on an NIV is subject to having the NIV automatically voided, 222(g) has no effect on any future NIV applications by that alien unless/unless the alien is applying for a new visa outside his or her country of nationality. If an alien overstays and then returns to his/her country of nationality to apply for a new NIV, the alien has in fact complied with 222(g) and could not be denied visa processing on 222(g) grounds.

  • As detailed in paragraph 10 below, there are numerous blanket "extraordinary circumstances" exemptions that further limit the practical effect of 222 (g). The most important exemption is for aliens who previously overstayed and who are applying for a new visa in their country of current residence. Such aliens benefit from a blanket exemption and may not be refused visa processing under 222 (g).

  • The practical effect of the two previous paragraphs is that 222(g) can be used to deny visa processing only if the alien is a non-resident TCN.

  • Foreign officials: applicants in the following visa categories are exempted from 222 (g): a and g, except a-3 and g-5; c-2, c-3; and Nato-1 through -6. (refs b and d indicated that applicants in these categories benefit from a blanket extraordinary circumstances exemption; however, it has subsequently been determined that, consistent with INA 102, these aliens may not be refused visa processing under INA 222(g) and therefore do not require an extraordinary circumstances exemption.)

What constitutes an overstay for 222(g) purposes?
4. As noted above, 222(g) applies only to aliens who entered on a nonimmigrant visa and remained beyond their authorized period of stay. There are two types of nonimmigrant admissions: admissions until a specified date and admissions for duration of status. Aliens entering on b visas and most other NIV categories are admitted until a specified date, whereas f, j, i, and certain a/g holders are usually admitted for duration of status.

5. If an NIV holder was admitted until a specified date, he/she will be considered to have remained beyond the authorized period of stay for purposes of 222(g) if either:
  • the alien remained in the U.S. beyond the date specified on the I-94 or any extension, or

  • the ins or an immigration judge (IJ) made a formal finding of a status violation.

6. If an NIV holder was admitted for duration of status, he/she will not/not be considered to have remained beyond the authorized period of stay, and will not/not be subject to 222(g), unless the INS or an IJ made a formal finding that the alien violated status.

7. If CONOFF finds that an alien has stayed beyond the date specified on the I-94, that finding alone is sufficient to subject the alien to 222(g); there is no need for a formal finding of a status violation by INS or an IJ.

8. On the other hand, if a 222(g) finding is to be based solely on a status violation (as opposed to an overstay on a date-certain I-94), then there must have been a formal finding of such by INS or an IJ; a consular officer's finding that the alien violated status would not be a sufficient legal basis for a 222(g) finding. Posts that encounter NIV applicants who appear to have violated status on a previous NIV but for whom no formal INS or IJ finding was made may not refer the case to INS and ask for a status violation finding at that point in order to subject the alien to 222(g). Rather, for 222(g) to apply, the INS or IJ must have made the status violation finding before the alien left the U.S., either in the context of an application for immigration benefits (e.g., change or extension of status) or in the context of a removal proceeding.

Special Rules
9. Other special rules to keep in mind:
  • 222(g) does apply to aliens who file asylum applications and who remain in the U.S. beyond the date on the I-94 while awaiting the outcome of the asylum case. Despite the pending asylum claim, such aliens would be required to return to their country of nationality to apply for any future NIV'S. (Cases of this type may merit consideration for an individual extraordinary circumstances exemption, if CONOFF is satisfied that the alien cannot safely return to his/her country of nationality.)

  • 222(g) does not apply to aliens who overstay but who were accorded temporary protective status (TPS), provided that they were accorded such status prior to the expiration of their I-94 and that they were covered by TPS throughout the remainder of their stay in the U.S.

  • 222(g) does apply to aliens who overstay or are found by INS or an IJ to have violated status but who are subsequently granted voluntary departure (although such aliens will not accrue any unlawful presence for purposes of 212(a)(9)(b) during the period covered by voluntary departure).

  • 222(g) does not apply to aliens who file for a change of status (COS) or extension of stay (EOS) and who remain in the U.S. after the date on their I-94, if the request is subsequently approved.

  • 222(g) does apply to aliens who file for a COS or EOS and who remain after the date on their I-94, if the COS/EOS request is subsequently denied or is still pending at the time of the alien's departure. (but see below, concerning the blanket extraordinary circumstances exemption for certain aliens who depart while a COS or EOS application is pending.)

Extraordinary circumstances exemptions
10. Under INA 222(g)(2)(b), if the department finds that "extraordinary circumstances" exist, an alien subject to 222(g) may apply for a new NIV in a third country, rather than having to return to his/her country of nationality. The department has approved the following blanket extraordinary circumstances exemptions:
  • TCN'S resident in the country in which they are applying (as noted in paragraph 3 above).

  • Aliens with pending EOS/COS applications: ref f announced a blanket extraordinary circumstances exemption for aliens who timely file a non-frivolous application for change or extension of NIV status but who depart the U.S. while the application is still pending. A non-frivolous application is one which is not on its face a groundless excuse for the applicant to remain in the U.S. to engage in activities incompatible with his/her status. It is not necessary for CONOFF to determine that the INS would have approved the application for the application to be considered non-frivolous. This exemption would be merited only if the alien did not work without authorization either before the application was filed or while it was pending.

  • H-1b applicants denied COS due to H-1b cap: ref g announced a blanket exemption for aliens who timely filed a non-frivolous application for change of status to H-1b but who were precluded from changing status because the annual ceiling on H-1b visas had been reached. This exemption would be merited only if the alien did not work without authorization either before the application was filed or while it was pending.

  • Doctors serving medically underserved areas: alien physicians applying for H-1b visas to practice in medically underserved areas frequently fall out of J-visa status waiting for approval of the special waiver of 212(e)'s two- year residence requirement provided for in INA 214(l). If either the waiver application or the H-1b petition was filed prior to expiration of J status and both were subsequently approved, the alien benefits from an extraordinary circumstances exemption from 222(g). (Note: most of these aliens would have been admitted for "duration of status." This blanket exemption has therefore been rendered largely unnecessary by the subsequent determination that aliens admitted for "duration of status" cannot be subject to 222(g) unless INS or an IJ has made a formal finding of a status violation.)

11. In addition, CONOFFS may recommend particular cases for individual extraordinary circumstances exemptions. Such recommendations must be submitted in the form of an advisory opinion request to CA/VO/L/A. CONOFFS do not have authority to grant individual extraordinary circumstances exemptions without prior department concurrence. Requests should involve some truly extraordinary circumstance, such as a compelling humanitarian case. Officers need not submit cases in which the claim of extraordinary circumstances amounts to no more than inconvenience for the applicant or an employer. Please note that department generally will not issue advisory opinions on the issue of extraordinary circumstances unless the alien has already applied for a visa abroad and been found by the CONOFF to be subject to 222(g).

12. NIV'S issued pursuant to a blanket or individual exemption should be annotated "INA section 222(g) overcome under extraordinary circumstances."

Extent of Inquiry
13. In most cases, there may be no convenient or reliable method for CONOFF to determine whether an alien has overstayed on some previous visa. Although some aliens may be the subject of ins lookouts or I-275's in connection with a previous removal or withdrawal of application for admission, other overstayers may not have come to INS'S attention. Moreover, the ability of an alien to prove to the CONOFF that the alien has not overstayed on any previous visits to the U.S. is limited.

14. In light of the difficulty in identifying previous overstayers, and given that 222(g) does not render the alien ineligible for future NIV'S but simply requires the alien to obtain future NIV'S at a specified location, it would not be a judicious use of our limited resources to engage in a lengthy factual investigation in every NIV case simply to determine whether the applicant might potentially be subject to 222(g). Rather, our efforts must be focused on those cases likely to produce results. Therefore, CONOFFS should not routinely undertake in-depth questioning of visa applicants concerning possible applicability of 222(g) unless, in the normal course of processing a particular visa application, the possibility of a previous overstay becomes apparent through otherwise routinely available information (e.g., inspection of the passport, answer to questions on of-156, etc.).

15. If CONOFF becomes aware of some fact that gives rise to a reason to believe that the alien has overstayed, the alien must provide sufficient evidence to establish otherwise to the satisfaction of the CONOFF. Posts should not make routine requests for record checks from INS or the department, as arrival/departure records or records of authorized extensions are not always complete or readily accessible.

222(g) versus 9b
16. Both 222(g) and the three/ten year bar of 212(a)(9)(b) refer to aliens who have remained beyond the period of authorized stay, and the two provisions occasionally get confused. The following comparison should prove helpful in keeping the two provisions straight in one's mind.

17. 9b is a substantive ineligibility provision, whereas 222(g) is not an ineligibility, per se. The effect of 222(g) is simply to void the visa on which the overstay occurred and to require the alien to apply for future NIV'S in his/her country of nationality.

18. In some respects, 9b is broader in scope and effect than 222(g). For example:
  • Whereas 222(g) applies only to aliens who have overstayed on an NIV, 9b applies to various types of "unlawful presence," including overstays on VWPP and parole status, as well as entries without inspection.

  • Whereas an alien subject to 222(g) may still be issued IV'S and may also be issued NIV'S in his/her country of nationality (or residence, under the blanket exemption), aliens subject to 9b are ineligible for both IV'S and NIV'S, regardless of where they apply.

19. In other respects, 9b is narrower in scope or effect than 222(g). For example:
  • Whereas 222(g) applies to an NIV holder who overstays for any length of time, no matter how brief, 9b applies only to overstays or other periods on unlawful presence that exceed 180 days.

  • Whereas 222(g) generally applies to overstays that occurred both before and after the effective date of the law, 9b applies only to periods of unlawful presence accruing on or after April 1, 1997 (the effective date of 9b).

  • There are several statutory exemptions under 9b that don't apply under 222(g). For example, aliens under age 18 do not accrue unlawful presence and are effectively exempt from 9b. The law also exempts periods of unlawful presence accrued by certain aliens with bona fide asylum claims. In addition, certain aliens with pending non-frivolous applications for change or extension of NIV status may benefit from a 120-day "tolling period" during which the running of the 9b "unlawful presence" clock is suspended. No such exceptions or exemptions exist under 222(g).

20. If posts have any questions about the applicability of section 222(g) in a particular case, the department (CA/VO/L/A) will be happy to assist.

Talbott