DOS Letter on INA Section 222(g) and Asylum Claims

November 8, 1996
Mr. Mark D. Koestler
Robinson Silverman Pearce Aronsohn & Berman LLP
1290 Avenue of the Americas
New York, NY 10104

RE: INA Section 222(g) and Asylum Claims

Dear Mr. Koestler:

Thank you for your fax of October 23 concerning whether new Section 222(g) of the Immigration and Nationality Act (Section 632 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996) applies to aliens who have applied for asylum.

Section 222(g) applies to aliens who have been admitted into the U.S. on the basis of a nonimmigrant visa and who have remained in the U.S “beyond the period of stay authorized by the Attorney General.” We consulted with our counterparts at the Immigration and Naturalization Service and they have advised that the filing of a request for asylum does not extend the alien’s “period of stay authorized by the Attorney General,“ within the meaning of Section 222(g). Thus, an alien who applies for asylum but remains beyond the period of stay authorized on the nonimmigrant visa is subject to Section 222(g), even if the asylum request was filed prior to the expiration of the authorized stay and is still pending. To avoid the application of Section 222(g), an alien who applies for asylum must file separately for, and obtain, an extension of stay on the nonimmigrant visa.

I regret that our response could not have been more favorable.

Sincerely,

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