DOS Cable on Visa Applications Under Section 632 of H.R. 2202
Fm SecState WashDC
To All Diplomatic and Consular Posts Priority
Special Embassy Program Priority
Unclas State 208799
E.O. 12958: N/A
Tags: CVIS, CMGT
Subject: Visa Applications Under Section 632 of H.R. 2202
1. Summary:
As most posts may know by now, on September 30 the President signed into law sweeping legislation to address the problem of illegal immigration to the U.S. in the coming weeks the Department will assess the impact of this legislation on Consular operations. However, there are certain provisions of the legislation which will have an immediate impact. This cable addresses section 632 of the bill dealing with the effect of visa overstay in the U.S. on future visa applications of the overstayer. Post should implement these instructions immediately.
2. Statute:
Subsection (a) of section 632 amends section 222 of the INA by adding subsection (g) at the end. The new subsection reads as follows:
“(g)(1) in the case of an alien who has been admitted on the basis of a nonimmigrant visa and remained in the United States beyond the period of stay authorized by the Attorney General, such visa shall be void beginning after the conclusion of such period of stay.
“(2) an alien described in paragraph (1) shall be ineligible to be readmitted to the United States as a nonimmigrant, except -
“(A) on the basis of a visa (other than a visa described in paragraph (1)) issued in a consular office located in the country of the alien’s nationality (or, if there is no office in such country, in such other consular office as the Secretary of State shall specify); or
“(B) where extraordinary circumstances are found by the Secretary of State to exist.”
2(A). Subsection (b) of section 632 describe more specifically the visas and the aliens to which the new section 222 (g) applies. It reads as follows:
(b) Applicability
(1) Visas - section 222(g) (1) of the Immigration and Nationality Act, as added by subsection (a), shall apply to a visa issued before, on, or after the date of the enactment of this Act.
(2) Aliens Seeking Re-Admission - section 222(g)(2) of the Immigration and Nationality Act, as added by subsection (a), shall apply to any alien applying for readmission to the United States after the date of the enactment of this Act, except an alien applying for readmission of the basis of a visa that -
(A) was issued before such date; and
(B) Is not void through the application of section 222 (g) (1) of the Immigration and Nationality Act, as added by subsection (a).
3. Interpretation:
Although the language of section 632 is somewhat complicated, the Department interprets it to mean that, effective immediately, with the exceptions noted below, any alien who, whether before or after enactment of section 632, having been lawfully admitted in nonimmigrant status, has overstayed by even one day the initial period of authorized stay, or any extension of such period granted by INS, may no longer use the visa with which the alien entered the U.S. to reenter the U.S. and is not eligible for further nonimmigrant visa issuance except in the country of the alien’s nationality (see paragraph below regarding “homeless” and stateless aliens). The Department realizes that for aliens who are permanent residents of third countries rather than residing in the country of their nationality this new law may impose a special hardship. Nevertheless, the department must carry out the law as enacted and thus must require such persons to return to their country of nationality. Note that the provisions of new 222(g) do not apply to periods of stay authorized under VWPP.
4. Exceptions:
The exceptions are : (A) that the Secretary of State may find that a particular alien or group of aliens who overstay is/are not subject to this requirement if extraordinary circumstances pertain to that alien or group of aliens; or (B) If an alien who prior to the date of enactment of the Act had overstayed, but subsequent to the overstay and prior to the date of enactment of section 632 that alien had been issued a new nonimmigrant visa and uses that visa to enter the U.S. However, at the expiration of that visa the alien must then apply in the country of his/her country of nationality for each and every subsequent nonimmigrant visa which the alien wishes to obtain.
5. Procedure: Extent of Inquiry.
The provision appears to apply to any alien who has overstayed a nonimmigrant visa admission and has not subsequently been issued a nonimmigrant visa prior to September 30. However, presently, in the vast majority of cases there is no convenient or reliable method for determining whether an alien has overstayed. Clearly, the ability of an alien to prove to the Consular Officer or otherwise establish that the alien has not overstayed at some remote period in the past is limited. Since routine questioning of aliens who have been in the U.S. recently would involve an expenditure of resources, other efforts need to focused on those cases likely to produce results. Therefore, unless in the course of visa processing the possibility of a previous overstay becomes apparent through information otherwise routinely obtained (e.g., through inspection of passport, answer to questions 30 on the OF-156, etc.), lengthy interrogation of applicants to determine whether such a possibility exists should not be undertaken. Once the Consular Officer becomes aware of some fact that gives rise to a reason to believe that the alien has overstayed an authorized period of stay, the alien must provide sufficient evidence to establish otherwise to the satisfaction of the officer.
5(A). A likely scenario for questioning would involve an applicant for a nonimmigrant visa who was in the U.S. at the time a nonimmigrant visa petition on his/her behalf was approved, but who did not receive a change of status. Such an application would be suspect since the INS routinely grants change of status in such circumstances unless the alien is out of status. This will likely be the case in very many instances of third country aliens applying at border posts. Undoubtedly, other instances will come to mind in which experience at specific posts has shown that certain fact patterns often lead to a conclusion that an alien has overstayed.
5(B). Procedure: Refusals and Retention of Fees.
In any case in which a consular officer determines that an alien is subject to the new provisions of 222(g) the alien should be informed of the determination in writing. The notification should state that the alien has been determined to be ineligible for visa processing pursuant to section 222(g) of the Immigration and Nationality Act made applicable by section 221(g) of the Act and will be required to apply for a visa in the country of his/her nationality. The applicant’s name should be entered in the class lookout system under code “G” with the annotation “visa overstay” in the free field. The MRV fee should be retained by the post.
6. Extraordinary Circumstances:
The Visa Office is expeditiously considering what groups and/or special situations might be considered “extraordinary circumstances” as mentioned in section 222(g)(2)(B). A number of groups have contacted VO, and perhaps posts, asking for inclusion under this provision. Situations that VO is considering include those where applicants somehow fell out of status due to no fault of their own and there is some public interest in their presence in the U.S. Consular Officers should submit to the Visa Office (CA/VO/L/A) for an advisory opinion requests for consideration of extraordinary circumstances as mentioned in section 222(g)(2)(B). Officers need not submit cases in which the claim of extraordinary circumstances amounts to no more than an inconvenience for the applicant or an employer. Generally, requests should involve some truly extraordinary circumstance, the vast majority of which, we anticipate, will be humanitarian.
7. Homeless aliens, dual foreign nationals and stateless persons:
Where there currently exists no Consular Office in the country of nationality of an alien subject to section 222(g)(2), the alien may visa process at either a consular post designated by the Visa Office in 9 FAM, Part IV, Schedule C, as required to accept the immigrant visa applications of aliens of the subject alien’s nationality, or at a post in the country in which the alien has the right of permanent residence, if any. For a foreign national possessing dual foreign nationality, the new provision does not permit the Department to specify to which country of nationality the alien must return. However, Consular Officers should remind any such alien that for visa issuance purposes the alien will be treated as a national of the country whose passport the alien presents at the time of visa application. Further, to facilitate the visa eligibility determination, particularly for 214(B) purposes, it would be wise for Consular Officers to advise such aliens that it would be best to return to the country with which the alien has substantial ties if the alien had never resided in or been closely associated with one of the countries. An alien determined by a consular officer to be stateless, shall, for the purposes of 222 (g) be considered to be a national of the country which issued the alien’s travel documentation.
8. Questions regarding the general interpretation of the new provision of law or this cable should be slugged for CA/VO/L/A and CA/VO/F/P.
Strobe Talbott