INS Advises on 222(g)

MEMORANDUM FOR: All Regional Directors
All Service Center Directors

FROM: Michael A. Pearson
Executive Associate Commissioner
Office of Field Operations

SUBJECT: Section 222(g) of the Immigration and Nationality Act (Act)

This memorandum addresses issues related to the automatic voidance of nonimmigrant visas (and combination nonimmigrant visa/border crossing cards) under section 222(g) of the Act arising at ports of entry. These policies and procedures are effective immediately and will be included in the Inspector's Field Manual (IFM) in the next release of INSERTS. The wire issued by the Office of the Associate Commissioner for Examinations signed December 23, 1996 (IIRIRA Implementation Document # 96 Act 009), is rescinded. (The date was omitted from the distributed wire.)

Chapter 15 of the IFM is amended by revising Chapter 15.3(f)(3), and by adding Chapter 15.15 to read as follows:

15.3 Visas.

(f)(3) For guidance on the cancellation of nonimmigrant visas under section 222(g) of the Act, refer to Chapter 15.15.

15.15 Cancellation of nonimmigrant visas under section 222(g) of the Act.

(a) Section 222(g) defined. An alien who was admitted to the United States on a nonimmigrant visa and who remained beyond the period of stay authorized by the Attorney General is subject to section 222(g) of the Act. When the alien is subject to section 222(g) of the Act, the nonimmigrant visa becomes automatically void, and the alien may not be admitted to the United States, unless he or she obtains or has already obtained another visa in the country of his or her nationality. Consular officers and immigration officers who encounter aliens in possession of nonimmigrant visas that have become automatically void must physically cancel those visas. Aliens subject to section 222(g) may obtain a new visa in a third country only when the Department of State (DOS) finds extraordinary circumstances. See section 222(g)(2)(B) of the Act. Aliens arriving at a POE with a visa that has become automatically void under section 222(g) may apply for a waiver under section 212(d)(4) of the Act in limited circumstances. See Chapter 15.15(k) and Chapter 17.5(d)(3). Aliens who present upon arrival at the POE a nonimmigrant visa that is automatically void under section 222(g), and who are not eligible for a waiver under section 212(d)(4) of the Act, are subject to expedited removal under section 235(b)(1) of the Act. In some cases, it may be appropriate to allow them to withdraw their application for admission, rather than to issue an expedited removal order. See Chapter 15.15(l) and Chapter 17.2.

(b) Effective date. Section 222(g) of the Act became effective on the date of enactment, September 30, 1996, and applies to any alien seeking admission on or after that date. The statute voids visas issued before, on, or after the date of enactment, regardless of whether the alien remained in the United States beyond the period of stay authorized by the Attorney General before or after the date of enactment. For example, an alien who was issued a B-2 visa in 1994, valid indefinitely for multiple entries, who was admitted to the United States shortly thereafter for six months, and who remained in the United States beyond the I-94 expiration date is subject to section 222(g) if he or she seeks to be admitted with that visa on or after September 30, 1996.

(c) General applicability. Section 222(g) of the Act applies to aliens who were ". . . admitted on the basis of a nonimmigrant visa . . . ." (Emphasis added.) Section 222(g) does not apply to:

(1) Aliens not admitted on the basis of a nonimmigrant visa:

(i) Aliens who enter the United States without inspection;

(ii) Aliens who remain in the United States beyond the period of parole authorization;

(iii) Aliens who were admitted with an I-185 or I-586, Canadian or Mexican Border Crossing Card (BCC) and remain in the United States beyond the authorized period of admission (Note: Aliens admitted with a combination B-1/B-2 NIV/BCC issued by DOS are subject to section 222(g) of the Act if they remain in the United States beyond the authorized admission);

(iv) Aliens who are exempt from the nonimmigrant visa requirements under 8 CFR 212.1(c), (c-1), (c-2), (d), (e), (f), (i), and (j) and admitted without a nonimmigrant visa; or

(v) Aliens who remain in the United States beyond the period of admission authorized under the Visa Waiver Pilot Program (VWPP).

(2) Certain other aliens not subject to section 222(g):

(i) Aliens who were granted Temporary Protected Status (TPS) before their nonimmigrant stay expired; and

(ii) Aliens who violated their status in some way other than remaining beyond the period of stay authorized by the Attorney General.

(d) Applicability to foreign government officials and representatives of international organizations. DOS has determined that foreign government officials and representatives of international organizations applying for A-1, A-2, C-2, C-3, G-1, G-2, G-3, or G-4 visas or for visas under NATO-1 through NATO-6, to transact official business on behalf of the foreign government or international organization they represent, are not subject to section 222(g) of the Act. DOS based this determination on sections 102 and 212(d)(8) of the Act. See also 22 CFR 41.21(d). In addition, an alien who was previously admitted to the United States on a nonimmigrant visa until a date certain, who remained in the United States beyond the period authorized by the Attorney General, and who then applies in a third country for one of the nonimmigrant visas listed in this paragraph in his/her capacity as a foreign government official or a representative of an international organization, is not subject to section 222(g) of the Act.

(e) Meaning of period of stay authorized by the Attorney General.

(1) Single interpretation for sections 222(g) and 212(a)(9)(B) and (C) of the Act. In agreement and coordination with DOS, a single interpretation of "period of stay authorized by the Attorney General" shall be applied to sections 222(g) (relating to the automatic voidance of the alien's nonimmigrant visa) and 212(a)(9)(B) and (C) of the Act (relating to unlawful presence). The basic underlying principle of the interpretation of "remain in the United States beyond the period of stay authorized by the Attorney General" that sections 212(a)(9)(B) and 222(g) have in common is that the alien was an overstay or was actually found to have violated his or her status, resulting in termination of the period of stay authorized by the Attorney General.

(2) Treatment of nonimmigrants. The treatment of nonimmigrants under section 212(a)(9)(B) and 222(g) of the Act depends on whether they were admitted until a specific date, or whether they were admitted for duration of status (D/S).

(i) Nonimmigrants admitted until a specific date. Nonimmigrants who were admitted until a specific date are subject to section 222(g) when they remain in the United States after the date noted on their Form I-94. They are subject to section 222(g) before the I-94 expiration date only if there is a formal finding of a status violation resulting in termination of the alien’s period of stay authorized by the Attorney General. The Service may make such a formal finding while adjudicating the alien’s request for an immigration benefit, such as extension of stay (E/S), change of status (C/S), or reinstatement. The formal finding of a status violation resulting in the termination of the alien’s period of stay authorized by the Attorney General may also be made by an immigration judge in the course of removal proceedings.

(ii) Nonimmigrants admitted D/S. Nonimmigrants who were admitted D/S are subject to section 222(g) only when there is a formal finding of a status violation by the Service or by an immigration judge, resulting in the termination of the period of stay authorized by the Attorney General.

(iii) Nonimmigrants whose E/S or C/S application is approved nunc pro tunc. Aliens who filed a late E/S application under 8 CFR 214.1(c)(4), or a late C/S application under 8 CFR 248.1(b) that was approved retroactive to the date the previously authorized stay expired are not subject to section 222(g).

(f) Aliens in possession of more than one nonimmigrant visa. When an alien is in possession of more than one nonimmigrant visa, the nonimmigrant visa under which the alien was admitted and overstayed becomes automatically void and must be canceled. The alien may be readmitted to the United States only on a visa issued in his or her country of nationality, unless an extraordinary circumstances exception is granted under section 222(g)(2)(B) of the Act. While the other nonimmigrant visa does not become automatically void, it may not be used for admission if it was not issued in the alien’s country of nationality. Therefore, if the other nonimmigrant visa was not issued in the country of the alien’s nationality, it must also be cancelled .

(g) Effect on 222(g) of departure during pending E/S or C/S application.

(1) Aliens admitted until a specific date. Nonimmigrants admitted to the United States until a specific date who apply for E/S or C/S but who then leave the United States after the I-94 expires and before a decision on the application has been issued are subject to section 222(g) of the Act. This is because they remained in the United States beyond the period of stay authorized by the Attorney General, i.e., the I-94 expiration date. These aliens may, however, possibly benefit from an exception under section 222(g)(2)(B) of the Act or a waiver under section 212(d)(4) of the Act.

(2) Aliens admitted D/S. Nonimmigrants admitted D/S who leave the United States while the E/S or C/S application is pending are not subject to section 222(g) of the Act, if no status violation was found that would have resulted in the termination of the period of stay authorized by the Attorney General. In addition, D/S nonimmigrants whose C/S or E/S applications were denied for reasons other than a status violation are not subject to section 222(g) of the Act.

(h) Effect of voluntary departure on 222(g). Section 222(g) applies even if the alien was granted voluntary departure.

(i) Cancellation of automatically voided combination nonimmigrant visa/border crossing cards.The combination B-1/B-2 NIV/BCCs issued by DOS consular officers are subject to section 222(g) of the Act and become automatically void when the alien remains in the United States beyond the authorized admission date. Combination B-1/B-2 NIV/BCCs that have become automatically void under section 222(g) must be physically cancelled according to the instructions in Chapter 15.15(l). BCCs, however, as defined in section 101(a)(26) of the Act, are not nonimmigrant visas per se, and do not become automatically void under section 222(g) of the Act when the alien remains in the United States beyond the period of stay authorized by the Attorney General.

(j) Extraordinary circumstances exceptions for third-country nonimmigrant visa applicants outside of the United States.

(1) Blanket extraordinary circumstances exceptions. DOS will grant a "blanket" extraordinary circumstances exception under section 222(g)(2)(B) of the Act, if the alien meets certain pre-established requirements. DOS has determined that the following classes of aliens are eligible for the blanket extraordinary circumstances exception:

(i) Applicants with pending E/S or C/S applications. Aliens admitted until a date certain who timely filed an E/S or C/S application and who left the United States while that application was pending are eligible for the blanket exception if certain requirements are met. They must establish that they timely filed the E/S or C/S application, that there was no unauthorized employment before the application was filed or while it was pending, and that they had to leave the United States while the application was pending because of urgent reasons.

(ii) Aliens with a Residence in a Third Country. Aliens whose current foreign residence, as defined in 9 FAM 42.61, N.1, is in a country other than the country of their nationality, and who apply for a visa in that third country (the country of residence) after having remained in the United States beyond the period of stay authorized by the Attorney General are considered by DOS to qualify for a blanket extraordinary circumstances exception under section 222(g)(2)(B) of the Act in conjunction with their nonimmigrant visa application in that country.

(iii) Foreign Medical Graduates.Certain foreign medical graduates (FMGs) who received a waiver of the 2-year foreign residence requirement under section 212(e) of the Act may seek the blanket exception under section 222(g)(2)(B) of the Act based on extraordinary circumstances. To qualify for the blanket exception, the waiver must have been based on a request by an interested U.S. Government agency or a State Department of Public Health. In addition, the FMG must be applying for an H-1B visa to fulfill the 3-year obligation to work in a medically underserved area, as required under section 214(l) of the Act. DOS has also determined that the FMG must have filed the H-1B petition with INS, or initiated the waiver request with the interested Federal agency or State Department of Public Health before his or her J-1 status expired (or in the case of a J-2 dependent applying for an H-4 visa, before the principal J-1's status expired). Because J-1 exchange visitors (and their dependents) are now routinely admitted D/S, they will not be subject to section 222(g) in any event, unless the Service or an immigration judge finds a status violation. This blanket DOS exception is, for all practical purposes, only of importance to those FMGs who were admitted until a specific date as opposed to D/S.

(2) Individual exceptions: Aliens who are not eligible for the blanket 222(g)(2)(B) extraordinary circumstances exception may seek the exception on a case-by-case basis, and at the discretion of the consular officer.

(3) Action by DOS when section 222(g)(2)(B) exception is granted. When DOS issues a nonimmigrant visa to a third country applicant based on the extraordinary circumstances exception in section 222(g)(2)(B) of the Act (blanket or individual exception), the new visa is annotated "INA section 222(g) overcome under extraordinary circumstances." This means the consular officer determined that section 222(g) of the Act was overcome, and that the alien was allowed to apply for the NIV in a third country.

(4) Action by DOS when a section 222(g)(2)(B) exception is denied. When an alien subject to section 222(g) files a nonimmigrant visa application in a third country, and that application is denied, DOS will place a notation in the CLASS lookout system under code "222." The notation "222" means the applicant was instructed to obtain a visa at a consular office located in the country of his or her nationality.

(k) Cancellation of automatically voided nonimmigrant visas and 212(d)(4) waivers at the POE. When the inspecting officer encounters an alien whose nonimmigrant visa has become automatically void under section 222(g) of the Act, the visa must be physically cancelled. The inspector should write or stamp the word "canceled" across the face of the visa and endorse the passport next to the canceled visa "Canceled pursuant to section 222(g) of the INA." After the nonimmigrant visa has been canceled according to these procedures, the inspecting officer may consider a waiver under section 212(d)(4) of the Act according to the procedures described below.

(1) Waivers granted under section 212(d)(4) of the Act at the POE based on the blanket DOS extraordinary circumstances exception. Waivers under section 212(d)(4) of the Act are generally discretionary. However, INS has determined, in cooperation with DOS, that certain aliens qualify for a waiver under section 212(d)(4) of the Act based on the blanket extraordinary circumstances exception if certain requirements are met. In such cases, the alien is considered to have met the unforeseen emergency requirement. Neither a form nor a fee is required. If the waiver is granted, note "212(d)(4)" in block #19 of Form I-94, and "222(g)" in block #26 of Form I-94. In addition, the following endorsement must be noted in the passport next to the nonimmigrant visa: "212(d)(4). Blanket extraordinary circumstances exception." The only blanket extraordinary circumstances exception described in paragraph (j) of this chapter that would apply in an encounter at a POE relates to those aliens who timely filed an extension application and who departed the United States while that application was pending. To qualify for waiver under section 212(d)(4) of the Act based on the blanket extraordinary circumstances exception, the following requirements must be met:

(i) The alien’s nonimmigrant visa must be facially valid;

(ii) The alien’s nonimmigrant visa must correspond to the nonimmigrant class under which he or she seeks to be admitted;

(iii) The alien timely filed an E/S application;

(iv) The alien did not engage in any unauthorized employment before the E/S application was filed or while it was pending;

(v) The alien was required to leave the United States while the E/S application was pending because of urgent reasons.

(2) Waivers granted under section 212(d)(4) of the Act at the POE based on an unforeseen emergency. When the alien does not meet the requirements for a blanket extraordinary circumstances exception described in Chapter 15.15(k)(1), the alien may apply for a waiver under section 212(d)(4)(A) of the Act based on an unforeseen emergency. These waiver applications are accepted and reviewed on a case-by-case basis, and at the discretion of the inspecting officer. To apply for the waiver, the alien must file Form I-193, Application for a Waiver of Passport and/or Visa, with a designated officer, and pay the required fee.

(3) Waiver denied under section 212(d)(4) of the Act. An alien whose nonimmigrant visa has become automatically void under section 222(g) of the Act is inadmissible under section 212(a)(7)(B)(i)(II) of the Act, as a nonimmigrant who lacks the required visa. When the alien does not qualify for any waiver under section 212(d)(4) of the Act, the automatically voided NIV or NIV/BCC must be canceled under section 222(g)(1) of the Act. Consequently, the alien is inadmissible under section 212(a)(7)(B)(i)(II) of the Act and therefore subject to expedited removal.

(l) Withdrawal of application for admission. Aliens who are inadmissible because their NIV has been canceled under section 222(g)(1) of the Act may be offered the opportunity to voluntarily withdraw their application for admission, unless there are other related underlying reasons for proceeding with expedited removal, such as long-term or repeated overstays, or other egregious immigration violations. See 8 CFR 235.4 and Chapter 17.2. When an alien is permitted to voluntarily withdraw his or her application for admission, the following steps should be taken:

(1) Serve the alien with Form I-275, Withdrawal of Application/Consular Notification.

(2) Have the alien sign the form to acknowledge the request to voluntarily withdraw the application for admission. Because of the need to properly inform DOS of the cancellation and to effectively eliminate port- and consulate-shopping by those in violation of section 222(g) of the Act, do not substitute Form I-180, Notice of Voidance of Form I-186 or Denial of Form I-190, or any other form.

(3) When completing the I-275, write either "NIV/BCC" or the visa classification followed by the alien’s alien registration number or visa number in the block for Visa number, type. In the Reasons block, include:

(i) A statement that the NIV or combination B-1/B-2 Nonimmigrant Visa and BCC was canceled in accordance with section 222(g) of the Act; and

(ii) The specific evidence found to verify that the subject remained beyond the period of stay authorized by the Attorney General.

(m) Recording of cancelled visas. Record each NIV or combination B-1/B-2 Nonimmigrant Visa and BCC canceled per section 222(g) of the Act in the Performance Analysis System (PAS) on line #49, Non-Immigrant Visas, G-22.1.

Please ensure the consistent application and implementation of section 222(g) of the Act in your areas of jurisdiction. Linda Loveless, Assistant Chief Inspector, Office of Inspections, is the point of contact for inspections-related issues arising at POEs. She may be reached at 202-514-3019. Sophia Cox, Adjudications Officer, Office of Adjudications, 202-514-4754, and Joanna London, Associate General Counsel, Office of the General Counsel, 606-616-0113, are points of contact for questions concerning section 222(g) not arising at a POE.

cc: R. Sloan; HQPDI: Please incorporate into next release of INSERTS.

M. Shaul; HQIFM

M. Hryniak; HQINS

W.R. Yates; HQEONO (ISD)