Further Instructions On Change To 41.112(D) Regarding Automatic Extension of Visas

PRIORITY MEXICO CITY, OTTAWA, BRIDGETOWN, CARACAS, NASSAU, HAMILTON, KINGSTON, SANTO DOMINGO, PORT-AU-PRINCE, HAVANA, PORT OF SPAIN, CURACAO, HALIFAX, QUEBEC, MONTREAL, TORONTO, VANCOUVER, CALGARY, TIJUANA, NOGALES, MONTERREY, CIUDAD JUAREZ, NUEVO LAREDO, MATAMOROS, GUADALAJARA, MERIDA, HERMOSILLO

VISAS -- INFORM CONSULS

E.O. 12958: N/A

TAGS: CVIS, CMGT

SUBJECT: FURTHER INSTRUCTIONS ON CHANGE TO 41.112(D) REGARDING AUTOMATIC EXTENSION OF VISAS

REF: STATE 50158

1. Summary. This cable provides additional instructions on handling visa applications from persons affected by the change to 22 CFR 41.112(d) announced in reftel. That change provides that aliens who apply for a visa while outside the U.S. can no longer benefit from the provision allowing for automatic extension of the validity of expired visas (and, in some instances, conversion of visa classification of unexpired visas) for persons reentering the U.S. from contiguous territory. Reftel instructed posts regarding placing the "Application Received" stamp in the passports of such applicants. Now, to provide additional insurance that INS inspectors do not inadvertently admit such aliens, posts are instructed to collect the I-94 in such cases or, if the I-94 cannot be collected, to place a second "Application Received" stamp in the passport, this one next to the most recent visa on which the alien was previously admitted, unless a new visa is issued at the time of application. End Summary.

2. 22 CFR (9 FAM) 41.112(d) allows an alien to reenter the U.S. from contiguous territory using an expired visa and an unexpired I-94, if the alien has been absent from the U.S. for no more than 30 days and meets certain other requirements. In addition, if the alien had previously entered the U.S. on a visa of one classification and subsequently changed visa status to another classification, the regulation allows the alien to be re-admitted in the latter visa classification by presenting the visa issued under the former classification (whether expired or unexpired), if the alien otherwise meets the requirements of the revalidation regulation.

3. As explained in Reftel, this regulation was recently amended. One provision of the amended regulation, which was published in the Federal Register on March 7, 2002 and takes effect on April 1, 2002, prohibits re-entry using an automatically revalidated visa in conjunction with a valid I-94 for any alien who has applied for a new visa while outside the United States unless the visa is issued immediately. This change reflects the desire to prevent aliens subject to enhanced security procedures from re-entering the US via automatic revalidation prior to security checks having been completed, but applies to all aliens who apply for and are not issued a new visa who would be otherwise eligible for re-entry via automatic revalidation. Technically, the waiting period for security checks constitutes a 221(g) refusal. Reftel further instructed posts to make sure to use an "Application Received" stamp in passports of such aliens.

4. To help ensure INS inspectors at POEs do not overlook the "Application Received" stamp and inadvertently apply the revalidation regulation in 41.112(d)(i) to aliens who are in fact not qualified for such treatment, INS has requested, and CA has agreed to, the following two additional steps:

-- First, consular officers should collect any valid I-94 in such cases, mark the back of the I-94 with the date and post name (the "Application Received" stamp can be used for this), and return the form to INS. If there is an INS office at post, the I-94 should be turned over to that office. In other cases the form should be sent as expeditiously as possible to ACS-INS, P.O. Box 7125, London, KY 40743 when using the U.S. mail or pouch or to ACS-INS, 1084 South Laurel Road, London, KY 40744 when using another delivery method.

-- Second, if the consular officer is unable to collect the I-94 because the applicant claims it was lost, stolen, or turned in to INS, the "Application Received" stamp should be placed next to the expired visa or, in the case of a prior change of status, next to the most recent unexpired visa in the different category that might otherwise be erroneously converted and revalidated if the INS inspector were unaware of the alien's intervening visa application. This stamp is in addition to the stamp that must be placed in the back of the passport, as required for all visa refusals.

5. In cases where the applicant possesses a valid visa, the visa should not be revoked unless the consular officer determines either that the alien is no longer entitled to the visa classification indicated on the visa (this would include aliens in possession of valid B visas who are no longer qualified under 214(b)), or that the alien is ineligible under 212(a) or some other legal ground of visa ineligibility. If that is the case, then the consular officer must follow the procedures outlined in 9 FAM 41.122 for revoking visas.

6. The revised and new procedural FAM notes follow:

9 FAM 41.121 PN1.2-15 Additional Procedure when Refusing Applicants who Possess a Valid I-94.
(i) In addition to placing the "Application Received" stamp in the back of the passport, additional steps should be taken in certain cases involving aliens who might seek to take advantage of the automatic visa revalidation provisions of 22 CFR (9 FAM) 41.112(d) but who are not eligible to do so due to their unsuccessful visa application.
(ii) On April 1, 2002, section 41.112(d) was amended to remove applicants who apply for but do not receive visas from the provision for automatic extension of visa validity (and, in some cases, conversion of visa category) for persons entering the U.S. from contiguous territory provided they have a valid I-94.
(iii) In order to prevent refused applicants (including those subject to mandatory waiting periods, SAO checks, etc.) from attempting to use section 41.112(d) to enter the U.S., and in order to alert INS to any such attempt, consular officers should collect any valid corresponding I-94 in such cases, mark the back of the I-94 with the date and post name (the "Application Received" stamp can be used for this) and return the form to INS. If there is an INS office at post, the I-94 should be turned over to that office. In other cases the form should be sent as expeditiously as possible to ACS-INS, P.O. Box 7125, London, KY 40743 when using the U.S. mail or pouch or to ACS-INS, 1084 South Laurel Road, London, KY 40744 when using another delivery method.
(iv) If the I-94 cannot be collected, the "Application Received" stamp should be placed next to the expired visa or, in cases involving a prior change of status, next to the most recent unexpired visa of a different category that might otherwise be erroneously converted and revalidated. (The consular officer may only revoke any unexpired visa if the grounds set forth in 9 FAM 41.122(a) are present, i.e., if the alien has been found ineligible for the visa classification or is subject to some legal ground of inadmissibility.)

7. 9 FAM 41.112(d) N4.3 Use of "Application Received" Stamp in Passports of Aliens Excluded from Automatic Revalidation Benefit.

Because of the exclusion of aliens who apply for but do not receive new visas from revalidation benefits, it is especially important that consular officers scrupulously follow the procedures concerning the use of the "Application Received" stamp [see 41.121 PN1.2-13 and 1.2-14] and collection of the I-94 and marking of the expired or unexpired visa on which the alien previously entered the U.S. (see 41.121 PN1.2-15) (including in cases deferred for an advisory opinion or any other reason [see 41.121 PN3]).