DOS Advises on 90-day Waiting Period for LPR

Department of State
Washington D.C. 20520

November 28, 1995

Mr. Paul Parsons
Attorney at Law
704 Rio Grande
Austin, Texas 78701

Dear Mr. Parsons:

This is in response to your letter of October 12, 1995 concerning whether Mr. [name omitted], a legal permanent resident would be subject to a 90 day waiting period while applying for another immigrant visa.

212(o) provides that an alien applying for an immigrant visa who has been in the United States is ineligible to receive an immigrant visa for 90 days following departure from the United States unless at the time of departure the alien was maintaining a lawful nonimmigrant status. It is within the sole jurisdiction of the Immigration and Naturalization Service (INS) to regulate the status of aliens within the United States and, accordingly, the Visa Office is of the opinion that it is within the sole jurisdiction of INS to define the term "maintaining a lawful nonimmigrant status" for the purpose of implementing section 212(o).

Since the statutory language expressly refers only to aliens maintaining a lawful nonimmigrant status the INS believes that such a definition would exclude aliens lawfully admitted for permanent residence (LPR).

We hope this has been responsive to your inquiry.

Sincerely,

H. Edward Odom, Chief
Advisory Opinions Division
Directorate for Visa Services

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