DOS Cable on INA 222(g) and Extraordinary Circumstances
AmEmbassy Asmara
AmEmbassy Sarajevov AmEmbassy Bujumburav Info USINS WashDC
Unclas State 225321
Visas
E.O. 12958: N/A
Tags: CVIS
Subject: P.L. 104-208 Update No. 7 - INA 222(g): Extraordinary
Circumstances
Ref: A) State 208799 B) State 212382 (Notal)
1. Summary:
This is cable number 7 in a series providing information on the immigration provisions of P.L. 104-208. Listed below are the categories of applicants for whom the Department has determined that “extraordinary circumstances” exist such that an applicant in one of the categories who is otherwise subject to the 222(g) requirement that the applicant return to the country of his or her nationality for nonimmigrant visa issuance will be exempt from that requirement. Except as noted below, a consular officer need not refer to the Department for an advisory opinion any case in which the consular officer is satisfied that the following circumstances exist:
2. Doctors Serving Medically Underserved Areas of the U.S.
The legal and medical communities have brought to the attention of the Department that physicians who qualify for participation in the program specified in INA Section 214(k) for former J-1 graduate medical students serving in medically underserved areas of the U.S. frequently fall out of status while awaiting the lengthy processing involved in the granting of a waiver of the INA 212(e) two-year home residence requirement. The Department has determined that, extraordinary circumstances shall be considered to apply to such physicians when applying for an H-1B visa for the purpose of participating in the 214(k) program. The determination is based on a number of factors, including primarily the public interest nature of this program and the fact that the Congress has passed special legislation to make it possible for these physicians to remain in the United States; that the physicians in question will provide essential medical services to otherwise underserved communities; and that requiring such physicians to return to their country of nationality to obtain visas would in many cases delay such services and likely require the expenditure of scarce resources by their employers which could otherwise be used for the delivery of medical services. However, such extraordinary circumstances shall apply only/only to those applicants for whom an employer filed either a petition with INS, or a 212(E) waiver application with an interested government agency (such as HUD, USDA, ARC, or a state health department) prior/prior to the alien’s existing J visa status having expired, and only if both the waiver application and the petition have subsequently been approved. Note, for this purpose, that J status holders are ordinarily given “duration of status” admittance and allowed to remain in the U.S. for thirty days beyond the termination of their program. Thus the petition or waiver filing required in these cases, in order to permit a physician to apply under extraordinary circumstances, would have had to have been prior to the termination of the thirty day period. For those Canadian and Mexican posts which received Reftel (B), note that the category of extraordinary circumstances for the subject physicians has been expanded to include filing of the waiver request.
3. Aliens with a Residence in a Third Country
Alien subject to the 222(g) requirement whose current foreign residence, as defined in 9 FAM 42.61, NI, is in a country other than the country of their nationality shall be considered to be applying under “extraordinary circumstances” if they apply for a nonimmigrant visa at a post in such country of current residence rather than in the country of their nationality. The fact that section 632 of the LIRIRA which added INA 222(g) is titled “elimination of consulate shopping for visa overstayers,” indicates that Congress intended applicants covered by this new section to apply not in the place of their choosing, but in the country in which they would normally be expected to apply-ordinarily the country of nationality which usually provides the best forum for accurate adjudication thus, to the extent the 222(g) requirement was intended by Congress to permit the most thorough and useful adjudication of the applications of visa overstayers, then this purpose is best served by permitting an alien to apply in the country of nationality. However, a Consular Officer in the country of nationality of such an alien may not use this exception alone to refuse to accept a nonimmigrant visa application filed by the alien.
Consular Officers should not be confused by the fact that the example in the FAM selected to illustrate definition of “residence” for this purpose is contained in the IV portion of the FAM. The reference was chosen merely as the most appropriate means to demonstrate the standard which the Department wishes applied to NIV applications in determining whether extraordinary circumstances exist.
4. Alien filing for Change of Status
Consular Officers shall consider an applicant to be applying under extraordinary circumstances in any instance in which the applicant can demonstrate that, while the applicant was still in a period of authorized nonimmigrant status, a petition and request for change of status was filed by an employer on the applicant’s behalf and subsequent approved by INS, but the alien “technically” fell out of status because the INS was unable to approve the petition and change of status prior to the termination of the alien’s existing period of authorized stay.
Typically, in accordance with 8 CFR 248.1(B), the INS takes no action to remove an alien in this situation from the U.S. Therefore, the Department believes that to impose the 222(g) requirement against the alien would contradict INS policy. However, in an individual case, if the consular officer believes that the circumstances are such that a finding of extraordinary circumstances would contradict the intent of the statute the officer should request an advisory opinion from CA/VO/L/A.
5. A and G Visa Applicants
To the extent that applicants for A-1, A-2, G-1, G-2, G-3 and G-4 visas may be covered by INA 222(g) they shall be considered to be applying under extraordinary circumstances and shall not be subject to return to their country of nationality, regardless of any previous overstay. The 222(g) requirement may not apply to such applicants by virtue of INA 102 in any event. While the Department has not definitely resolved this issue, the Department has determined that imposition of the 222(g) requirement on these applicants would cause undo interference with the conduct of foreign relations and therefore warrants exceptions under “extraordinary circumstances” of 222(g). Further, for the immediate future, applicants for A-3 and G-5 visas will be considered to be applying for visas under extraordinary circumstances. However, the Department has determined that Section 222(g) shall be applied to these aliens at such time as the Department is able to notify all foreign missions and qualifying international organizations in the U.S. of the requirements of this section of law, after an appropriate notice period. Posts will be informed when such notification is completed.
6. Nonimmigrant visas issued to aliens pursuant to paragraphs 2, 3, 4, and 5 and to “homeless” aliens per paragraph 7 of Reftel (A) should be annotated “INA Section 222(g) overcome under extraordinary circumstances.”
7. This guidance is effective immediately, however, the Department is engaged in ongoing discussions with INS concerning the subject of this cable. Should such discussion result in any change to the guidance consular officers will be so informed.
Christopher