DOS Cable on Revised 222(g) Guidance

R 231645Z MAR 98
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMCONSUL GUANGZHOU
POUCH BUJUMBURA
INFO USINS WASHDC

Unclas State 051296
Visas, Inform Consuls
E.O. 12958: N/A
Tags: CVIS

Subject: P.L. 104-208 Update No. 35 - Revised 222(g) Guidance

Ref: A) 96 State 232219 (IlRAIRA No. 9)
B) 97 State 12764 (Updated No. 16)
C) 97 State 235245 (Update No. 34)
D) 96 State 225321 (Update No. 7)

Summary

1. This cable provides revised guidance on the interpretation of INA section 222(g) (hereafter “222(g)”), under the revised guidance. An alien who entered on an NIV will not/not be considered an overstay for 222(g) purposes unless either:

(1) The alien remained in the U.S. beyond the specific date stated on the I-94, or
(2) The INS or an Immigration Judge has formally found that a status violation occurred (the latter category covers both aliens admitted until a date certain and aliens admitted for “duration of status” D/S)).

This revised interpretation supersedes a portion of the guidance in Refs A and B, as set forth below.

2. NIV holders who overstay or are found to have violated status but who are subsequently granted voluntary departure will nonetheless be subject to 222(g) . Aliens who timely apply for a change of status or extension of stay and who remain in the U.S. after the date on their I-94 but whose request is subsequently approved are not subject to 222(g). However, aliens who depart after the date on the I-94 but before INS issues a decision on the extension or change of status application are/are subject to 222(g). Finally, an alien who files a late application for change or extension of status and whose application is approved retroactively is not subject to 222(g). Para. 16 lists sample scenarios and 222(g) findings. Department also reminds posts that 222(g) effect is only to void the visa on which the overstay occurred and to require the alien to apply for future visas in his/her country of nationality; 222(g) is not a ground of ineligibility per se -- see para. 18. End Summary.

Revised Interpretation of 222(g)

3. Refs A and B provided guidance on several 222(g) issues. The guidance was based on INS’s then prevailing interpretation of the term “period of stay authorized by the Attorney General,” as used in 222(g). INA Section 212(a)(9)(B) (“9B”) uses this same term in defining unlawful presence, and in September 1997, INS revised its interpretation of unlawful presence for 9B purposes. (see Ref C and additional guidance on 9B being sent Septel.) The Department and INS have now agreed to use INS’s revised interpretation of the term “period of stay authorized by the Attorney General” for purposes of 222(g), as well.

4. Under this modified interpretation, an alien who enters on an NIV will be subject to 222(g) only if either:

1. the alien remained in the U.S. beyond the date stated on the I-94 or any extension (for cases where the alien has been admitted until a specified date rather than for duration of status, or
2. INS finds a status violation while adjudicating a request for an immigration benefit, or an Immigration Judge finds a status violation in proceedings against an alien (regardless of whether the alien was admitted until a date certain or for duration of status).

(Please note that these rules apply only to aliens who have entered on an NIV. As noted in Ref A, aliens who enter on VWPP, on parole, without inspection, or otherwise without an NIV are not subject to 222(g) under any circumstances.)

Practical Effect of Revised Interpretation

5. Guidance in Refs A and B is superseded, as follows:

Duration of Status Cases

6. Although most nonimmigrants are admitted for a specified period of time, students, exchange visitors, information media representatives (“I” visa holders), and holders of certain diplomatic visas are usually admitted for “duration of status” (D/S). Para. 3 of Ref A advised that aliens admitted for duration of status would be considered overstays subject to 222(g) if Conoff finds that they had remained in the U.S. beyond completion of their studies/work in that status and any applicable grace period. Paras. 5 through 9 of Ref B provided additional guidance on applying 222(g) to students who temporarily stop attending school but resume studies at a later point. This guidance is no longer valid.

7. Under the revised interpretation, aliens admitted for duration of status generally will not/not be subject to 222(g), regardless of their activities in the U.S., unless either:

(A) INS finds a status violation while adjudicating a request for an immigration benefit, or/or
(B) An Immigration Judge finds a status violation in proceedings against the alien.

8. Under the revised interpretation, a 222(g) refusal of an alien previously admitted for duration of status may not be based on the Conoff’s assessment of whether the alien did or did not maintain status. For example, even if a former F or J visa holder admits in his/her visa interview that he/she stayed in the U.S. months or years after studies ended, or worked without authorization, or never enrolled in school or undertook any studies at all, or never engaged in practical training that was authorized, the alien would still not/not be subject to 222(g), absent a prior finding of status violation by the INS or an Immigration Judge under the circumstances set forth in Para. 7.

Aliens Admitted for a Specified Period Who Violate Status

9. B Visa holders and most other nonimmigrants are granted a specified period of stay and must depart on or before the date specified on their I- 94. Ref A stressed that, in applying 222(g) in such cases, the focus must be on whether the alien departed by the required date. Ref A went on to state that if the alien departs by the date specified on the I-94, he/she will not/not be subject to 222(g), even if the alien violated status (e.g., by working or studying on a B visa).

10. The revised interpretation requires a slight modification of the guidance in Ref A. While an alien who departed by the date on the I-94 generally would not be subject to 222(g) even if he/she violated status, if either the INS or an Immigration Judge actually made a finding of a status violation, then the alien would be subject to 222(g). Thus, an alien admitted until a date certain may be subject to 222(g) even if he/she departs by the specified date, but only if INS or an Immigration Judge has made the requisite finding of a status violation. For example, if an alien files a change of status application and INS denies the application because of a status violation, and if the alien then departs before expiration of the I-94, the alien would nonetheless be subject to 222(g), based on the INS’s finding of a status violation. A Conoff’s assessment that the alien had violated status, however, would not itself be a sufficient basis for a 222(g) refusal.

Grants of Voluntary Departure

11. If an alien stays beyond the date on his/her I-94 or is found by INS or an IJ to have violated status, then, even if the alien is granted voluntary departure, he/she will still be subject to 222(g). (This is the case even through the alien would not accrue any “unlawful presence” under 212(a)(9)(B) during the period covered by the grant of voluntary departure. See Ref C.)

Extension/Change of Status Applications

12. If an alien files a timely application for extension of stay or change of status and the I-94 date passes but the application is subsequently approved by INS, then the period between the I-94 expiration date and the approval of the new period of stay/new status will be considered authorized, and the alien will not/not be subject to 222(g). This represents a change in guidance from Ref D, which had suggested that such aliens technically fall out-of-status and would be subject to 222(g), but should nonetheless be processed for visas based on a blanket “extraordinary circumstances” exemption. In fact, such aliens are not/not subject to 222(g) and therefore do not need an “extraordinary circumstances” exemption.

13. If an alien admitted until a date certain files a timely application for extension of stay or change of status and the application is denied for any reason, and if departure occurs after the expiration of the I-94, then the alien would be subject to 222(g). However, if the alien was admitted for duration of status, 222(g) would not apply in such a case unless the denial was based on a status violation. If the denial were for some other reason (e.g., that the alien was not qualified for the new status), then the alien admitted for duration of status would not be subject to 222(g).

14. If an alien files a timely application for extension of stay or change of status but the application is still pending at the time of the alien’s departure, and if the departure occurs after the expiration date of the I- 94, then the alien would be subject to 222(g).

15. INS has the authority to accept late applications for change or extension of stay, if the alien has good cause for the late filing and otherwise satisfies the regulatory requirements for retroactive approval of such applications. If INS accepts a late filing under such circumstances, and if the application is ultimately approved, then the alien is not/not subject to 222(g).

Summary Chart

16. The following chart outlines possible scenarios and 222(g) outcomes:

• Alien admitted until specified date, maintains status, departs by date specified: not subject to 222(g)
• Alien admitted until specified date, maintains status, departs after specified date: subject to 222(g)
• Alien admitted until specified date, violates status, departs by date specified: not subject to 222(g) unless INS or Immigration Judge has found a status violation
• Alien admitted until specified date, violates status, departs after specified date: subject to 222(g)
• Alien admitted until specified date, stays beyond specified date but is granted voluntary departure (V/D): subject to 222(g), regardless of whether he/she complies with V/D order
• Alien admitted until specified date, is found by INS or IJ to have violated status but is granted V/D and leaves prior to both date on I- 94 and date specified in V/D order: subject to 222(g)
• Alien admitted for duration of status (D/S), maintains status and departs: not subject to 222(g)
• Alien admitted for D/S, violates status: not subject to 222(g) unless INS or Immigration Judge has found status violation
• Alien admitted for D/S, is found by INS or IJ to have violated status but is granted voluntary departure: subject to 222(g), regardless of whether departure is before or after V/D order expires
• Alien admitted until specified date, applies for extension of change of status within applicable time limit prior to expiration of I-94, remains in U.S. after date on I-94 but INS subsequently approves application: not subject to 222(g)
• Alien admitted until specified date, applies in timely fashion for extension or change of status, remain in U.S. after date on I-94 expires and application is subsequently denied: subject to 222(g)
• Alien admitted until specified date, applies in timely fashion for extension or change of status, departs U.S. after expiration of the I- 94 but before a decision on the extension/change of status application: subject to 222(g)
• Alien admitted until specified date, files late application for change or extension of status, INS accepts late application because alien establishes that late filing was for good cause and otherwise satisfies the requirements for retroactive approval, and application is ultimately approved: not subject to 222(g)
• Alien entered on VWPP, on parole, without inspection, or otherwise without an NIV: not subject to 222(g), regardless of whether alien overstays or violates status

Reliance on Class Entries

17. According to INS, a lookout may be entered when an INS inspector, having discovered a previous overstay, cancels the visa under 222(g) and removes the alien or permits the alien to withdraw his/her application for admission. INS may use lookout Code 275 for voluntary withdrawals, or ER7 (or ER6) to indicate expedited removal for aliens not in possession of the required documentation (or for fraud). Code 222 is also available to INS. In addition, according to INS, if an Immigration Judge or INS adjudicator determines that an alien previously admitted for duration of status has violated that status, the alien’s name may be entered in the INS lookout data base. These entries would automatically pass into class.

18. Posts are reminded that 222(g) is not a ground of ineligibility, per se. The effect of 222(g) is simply to void the visa on which the overstay occurred (in which case the visa should be physically canceled), and to require the alien to apply for future nonimmigrant visas in his/her country of nationality. The provision is not a ground of refusal in cases where the applicant is applying for a new visa in his or her country of nationality.

19. Posts are also reminded that 222 class entries may only be made, if the alien was actually refused a visa on that ground, or if post revoked the aliens visa on that ground. If post obtains information indicating that an alien is subject to 222(g), but the alien has not applied for a visa and his/her visa is not being revoked, then post should enter the alien in class as “P222,” not 222.

20. As posts are aware, aliens subject to 222(g) may be exempted from the requirement that they obtain future NIVs in their country of nationality if the Department finds that “extraordinary circumstances” exist which merit an exemption. Posts should refer to Ref D (as modified by Para. 12 above) for classes of cases which benefit from a blanket “extraordinary circumstance” exemption. Conoffs may also submit individual cases to the Department (CA/VO/L/A), if post believes that an “extraordinary circumstances” exemption is merited in a particular case.

21. 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.

22. Guangzhou minimized considered.

Madeleine Albright