INS Advises on Section 222(g)

April 1, 1999

Ms Kathleen Campbell Walker
Kemp, Smith, Duncan & Hammond, P.C.
1900 Northwest Plaza
El Paso, Texas 79901-1441

Dear Ms. Walker:

This correspondence is in response to your letter dated March 8, 1999, regarding Section 222(g) of the Immigration and Nationality Act (the Act) and specifically the effect of that section on holders of either Forms I-586 or I-186, Nonresident Allen Border Crossing Card (BCC), or Form DSP-150, B1/B2 Visa and Border Crossing Card (Laser Visa). You have asked that we address three particular points:

1. The applicability of Section 222(g) to entry under BCC status.

2. The applicability of Section 222(g) to entry under Laser Visa status.

3. The applicability of Section 222(g) to entry with a B1/B2 NIV/BCC visa when Form I-94, Arrival and Departure Record, has been issued.

First, allow me to clarify the differences and similarities of the documents that you have mentioned in your letter:

1 . Forms I-186 and I-586, Nonresident Alien Border Crossing Card, were the cards issued by the Immigration and Naturalization Service (INS) through March 31, 1998, to Mexican nationals residing in Mexico at time of application. Application was made on Form I-175 at INS Ports-of-Entry along the shared United States-Mexico border.

2. Form DSP-150, B1/B2 Visa and Border Crossing Card, also known as the "Laser Visa", is the card issued by the Department of State (State) to Mexican nationals residing in Mexico at time of application. Application is made on Form OF-156 at consular posts in Mexico.

3. The B1/B2 Nonimmigrant Visa and Border Crossing Card was issued by State at its consular posts in Mexico. This document has been in the form of a machine-readable or Burroughs visa bearing that designation or a passport-page sized card resembling the biographic information page of some passports.

BCC's, in one form or another, have been issued for several decades. Their purpose has been and remains the facilitation of entry and expeditious identification of bona fide, frequent visitors from Mexico. Each of the documents, whether in the form of a visa in a passport or a wallet-sized card, identify the bearer as eligible for all benefits granted by the nonimmigrant classifications of either B1, visitor for business, or B2, visitor for pleasure. The BCC's issued by the NS, Forms I-186 or I-586, although considered a 'lieu' visa, are not actually nonimmigrant visas.

The memorandum you refer to dated January 14, 1999, and signed by Michael A. Pearson, Executive Associate Commissioner for Field Operations, states in pertinent part:

"(c) General applicability. Section 222(g) of the Act applies to aliens who were admitted on the basis of a nonimmigrant visa . . . (Emphasis added.) Section 222(g) does not apply to:

* * * * *

(iii) Aliens who were admitted with an I-185 or I-586, Canadian or Mexican Border Crossing Card (BCC and remain in the United States beyond the authorized period of admission (Note: Aliens admitted with a combination B-1/B-2 NIV/BCC issued by DOS are subject to section 222(g) of the Act if they remain in the United States beyond the authorized admission)."

Although the new Laser Visa, Form DSP-150, bears the designation "... and Border Crossing Card," it is primarily a nonimmigrant visa, valid for travel to the United States without a passport from contiguous territory and, when presented with a valid passport, from noncontiguous territory. The issuance of Form I-94 does not alter the nonimmigrant visa nature of the document and subjects admitted with or without an I-94 are subject to Section 222(g) if they have "... remained beyond the period of stay authorized by the Attorney General." However, as a matter of practicality, those subjects admitted on the basis of a nonimmigrant visa, including Form DSP-150, who have not been issued Form I-94, such as those entering for less than 72 hours and remaining within 25 miles of the border, are, in general, not subject to Section 222(g) unless a formal finding of a status violation has been made by the INS or an immigration judge, that resulted in the termination of the authorized period of stay.

Finally, to respond directly to the three questions presented:

1. Bearers of INS-Issued BCC's, Form I-186 and I-586, are not subject to Section 222(g).

2. Bearers of State-issued Laser Visas, Form DSP-150, are subject to Section 222(g).

3. Bearers of State-issued combination B1/B2 visas and border crossing cards, both the new Laser Visa, Form DSP-150, and previously issued machine-readable and Burroughs visa versions, are subject to Section 222(g):

A. If a Form I-94, Arrival-Departure Record, has been issued and the subject remained in the United States after the date noted on that form; or

B. If there has been a formal finding by the INS or by an immigration Judge of a status violation resulting in termination of the subject's period of stay authorized by the Attorney General. In this case, Section 222(g) is applicable regardless of whether a Form I-94 was or was not issued to the subject.

If additional information is required, Linda Loveless, Assistant Chief Inspector, Office of Inspections, is the point of contact for issues related to the application of this section at ports-of-entry. She may be reached at (202) 514-3019.

Sincerely,