DOS Cable on New 222(g) Policy

R 280233Z JUL 98
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
POUCH BUJUMBURA
POUCH ASMARA

UNCLAS STATE 136916

Visas

E.O. 12958: N/A
Tags: CVIS
Subject: P.L. 104-208 Update No. 39 - Revised 222G Guidance

Ref: (A) State 051296 (IIRAIRA Update No. 36) (B) 97 State 235245 (Update no. 34) (C) 97 State 12764 (Update no. 16) (D) 96 State 232219 (Update No. 9) (E) 96 State 225371 (Update No. 7)

1. This cable announces the establishment of a blanket “extraordinary circumstances” exemption under INA 222(g)(2)(B) for certain aliens who timely file for extension of stay or change of status and who depart after their I-94 has expired but before INS has decided their application.

2. 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 if the department finds that “extraordinary circumstances” exists which merit an exemption. Ref E as modified by Ref A provided classes of cases which benefit from blanket “extraordinary circumstances” exemptions.

3. In REFTEL A, para 14, Department informed posts that if an alien admitted until a date certain 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 on the I-94, then the alien would be subject to 222(g). After discussions with INS, the Department has now determined to permit blanket exemptions in cases of aliens who overstayed pending resolution of a timely filed, nonfrivolous application for change or extension of status with the INS and have to depart the U.S. while the application is pending. This policy includes cases where INS has cancelled an existing NIV at the time the application was taken and cases where the multientry visa remains valid. The “extraordinary circumstance” exemption would normally be merited only if the alien did not work without authorization either before the application was filed or while it was pending.

4. To determine whether an application is nonfrivolous, posts need not make a determination that INS would ultimately rule in favor of the applicant. Posts should consider an application nonfrivolous if it is not on its face a groundless excuse for the applicant to remain in the U.S. to engage in activities incompatible with his or her status.

To determine whether an alien filed in a timely manner posts should use evidence such as the dated receipt from or cancelled check payable to INS for the application to extend or change status together with evidence of the date the legal status expired, such as the I-94 or, if the original has been collected, a photocopy.

6. Posts should also be satisfied that the applicant did not work without authorization at any time before the application was filed or while it was pending. If the applicant had an alternate means of support during the time in which work has not authorized, posts may assume that the applicant did not work.

7. This is a blanket exemption when the above conditions are met and is being instituted because of delays in the processing of change or extension of status applications. The ultimate determination of whether the applicant will qualify for change or extension of status is an INS decision. Posts should avoid requesting extensive documentation on the above issues and should apply the “extraordinary circumstance” exception in all but blatant cases of abuse of the system. Posts are not required to seek guidance from CA./VO/L/A before determining that an “extraordinary circumstance” applies in these cases.

8. Those aliens who are ineligible to request a blanket exemption under INA 222(G) (2) may seek an exemption on an individual basis at the discretion of the consular officer. In those cases, posts are required to seek guidance from CA/VO/L/A before determining that an “extraordinary circumstance” exists.

Talbott.