Visa Overstays and INA 222g

• Introduction to Visa Overstays
• Statute and for Visa Overstays
• Implementing the Statute for Visa Overstays
• Seeking Waiver at the Border
• Scenarios in which the Visa Overstay Statute Does not Apply
• When Visa Overstay Penalties Apply
• Automatic Cancellation of Visa
• Conclusion: Visa Overstays

 

Introduction to Visa Overstays

If a nonimmigrant overstays the period of stay authorized by the Attorney General, or the United States Citizenship and Immigration Services (USCIS) or an Immigration Judge finds that he or she violated nonimmigrant status, the nonimmigrant's visa will be rendered void. With limited exceptions, an alien who overstayed a nonimmigrant visa may only be readmitted to the United States after applying for a new visa at a consular office in his or her country of nationality.

Once an alien is out of status, he or she may be subject to removal from the United States. Furthermore, the alien may begin accruing unlawful presence in the United States toward the 3- or 10-year bars of inadmissibility. To learn about unlawful presence in the United States, please read our full article [see article].

In this article, we will examine the relevant statutes, regulations, Department of State (DOS) guidance from the Foreign Affairs Manual (FAM), and case-law regarding visa overstays.

Statute and For Visa Overstays

The Immigration and Nationality Act (INA) covers visa overstays in section 222(g). The statute reads as follows:

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 the 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.

Section 222(g)(1) provides that a nonimmigrant visa will be void if a nonimmigrant remains in the United States beyond his or her period of authorized stay effective at the expiration of the period of authorized stay.

9 FAM 302.9-10(B)(2) explains that under DOS policy, if a nonimmigrant is in possession of two valid nonimmigrant visas and is found to have overstayed one of the nonimmigrant visas, only the visa that the nonimmigrant overstayed will be void under section 222(g)(1).

Section 222(g)(2)(A) provides that an alien whose visa was rendered void by remaining in the United States after his or her period of authorized stay may only be readmitted after applying for a nonimmigrant visa at the consular office located in his or her country of nationality. However, section 222(g)(2)(B) allows for an alien to be exempt from 222(g)(2)(A) if the Secretary of State determines that “extraordinary circumstances” exist.

A legacy INS memorandum (Pearson Memo) explains that in order for section 222(g) to attach, the nonimmigrant must have first overstayed after September 30, 1996 [see Memo].¹

The Department of Homeland Security (DHS)

Implementing the Statute for Visa Overstays

The DOS implements section 222(g) through regulations found in 22 C.F.R. 41.101. Furthermore, 9 FAM 301.4 contains guidance for consular officers in implementing both 222(g) and the applicable regulations.

Applying for New Nonimmigrant Visa at Consulate in Country of Nationality

22 C.F.R. 41.101(b) reflects the statutory provision in section 222(g)(2)(A) of the INA that an alien subject to section 222(g) may only apply for a new nonimmigrant visa at a consular office which has jurisdiction over his or her country of nationality.

Under 22 C.F.R. 41.101(d)(2) DOS will consider the country of nationality of a stateless alien to be the country that issued his or her travel documentation.

Extraordinary Circumstances Exemption

The extraordinary circumstances exemption in section 222(g)(2)(b) is implemented through 22 C.F.R. 41.101(c). The following are the exceptions “based on extraordinary circumstances” listed in the regulations (paraphrased):

1. Under certain circumstances, a nonimmigrant physician on J1 status serving in an underserved area on a section 214(l) waiver [see Conrad 30 J Waiver Program] may be eligible for an extraordinary circumstances exemption. In order to be eligible, the nonimmigrant physician must have had an application for a waiver of the 2-year foreign residence requirement and/or a Form I-129 petition for H1B status filed by an employer on his or her behalf prior to the end of the nonimmigrant physician's period of authorized stay. If the application and/or petition was approved, but the nonimmigrant physician's period of authorized stay expired during the adjudication of the application and/or petition, he or she will be exempt from 22 C.F.R. 41.101(b).
2. If the Attorney General finds that extraordinary circumstances exist based on “compelling humanitarian or national interests” or where an exemption is necessary for the “effective administration of the immigration laws,” the alien may be exempted from 22 C.F.R. 41.101(b). Extraordinary circumstances may not be found to exist on account of convenience or financial burden to the alien, the alien's relative, or the alien's employer. See also: 22 C.F.R. 41.101(d)(1).
3. If the alien has, or immediately prior to his or her last entry into the United States had, a residence in a country other than the country of his or her nationality, he or she shall apply at a consular office with jurisdiction in or for the country of residence.
4. If there is no consular office in the alien's country of nationality, he or she shall apply at a consular office designated to accept immigrant visa applications for persons of that nationality.
5. If the alien possesses more than one nationality and has, or immediately prior to his or her last entry into the United States had, a residence in one of the countries, the alien shall apply at a consular office in the country of such residence.

With regard to 22 C.F.R. 41.101(c)(4), 9 FAM 302.9-10(B)(2) states that the alien may also apply at a post in the country in which the alien has the right of permanent residence.

Special Case: Applicants for Diplomatic Visas

Also under 9 FAM 302.9-10(B)(2), aliens applying for diplomatic visas (A1, A2, G1, G2, G3, G4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6) should generally be exempt from 222(g) under section 102 of the INA. However, if such an applicant is formally found by USCIS to have committed a status violation while USCIS is adjudicating a request for an immigration benefit, or if an Immigration Judge finds a status violation in proceedings, then section 222(g) applies.

Special Case: Applicants for Nonimmigrant Q2 Visas

Notwithstanding any other provisions of 22 C.F.R. 41.101, an alien who is subject to section 222(g) and is applying for a Q2 visa must apply for the visa at the American Consulate General at Belfast.

Seeking Waiver at the Border

The Pearson memo explains that an alien whose visa was canceled under to 222(g) may apply for admission at the border without a visa by seeking a waiver under section 212(d)(4)(A) of the INA. Each application for 212(d)(4)(A) waivers will be considered on a case-by-case basis, and will only be granted for an unforeseen emergency. If the waiver is not granted, the alien will be subject to expedited removal [see article].

Scenarios in which the Visa Overstay Statute Does not Apply

Section 222(g) only applies to an alien who overstays his or her nonimmigrant visa. Therefore, section 222(g) is wholly inapplicable to lawful permanent residents (LPRs). 9 FAM 302.9-10(B)(1) lists the following scenarios where 222(g) does not apply:

1. Who entered the United States on the Visa Waiver Program (or other type of visa waiver);
2. Who entered via parole;
3. Who entered without inspection;
4. Who entered through one of the 'diplomatic visa' categories;
5. Who entered through any other means, other than on the basis of a nonimmigrant visa;
6. Who were admitted from Canada or Mexico with an I-68 or DSP-150 Border Crossing Card, or any other Canadian or Mexican entrants to the United States who were not issued an I-94 (and who were not subsequently found to be out of status by USCIS or an Immigration Judge); or
7. Who physically could not depart the United States due to the fact that they were in custody of law enforcement at the time (in prison, for example), see Matter of C-C-, 3 I&N Dec. 221, 222 (BIA 1948).

The diplomatic visas affected by point (4) are the A1, A2, G1, G2, G3, G4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, and NATO-6 nonimmigrant visas. However, as we will explore in the next subsection, if an alien on diplomatic visa status is formally found by either USCIS or an Immigration Judge to have violated his or her status, section 222(g) applies.

Point (7) derives from the Board of Immigration Appeals' (BIA's) precedent decision in Matter of C-C-, 3 I&N Dec. 221, 222 (BIA 1948). The Matter of C-C- concerned an alien who was in police custody awaiting trial on charges that he was ultimately acquitted of. Because he was in custody beyond the period of his authorized stay, he was charged with deportability. However, the BIA held that “[a]n alien cannot be prevented from departing from the United States in accordance with the terms of his admission and then be found deportable for not so departing.” This principle applies to section 222(g). However, it is important to note that the BIA distinguished the facts of the instant case from a case “where the alien's criminal act caused his incarceration.” To learn more, please see our short article about the decision [see article]. The Seventh Circuit also made this distinction in its precedential decision, Edualino v. Pilliod, 309 F.2d 294 (Oct. 24, 1962), stating that “[t]o hold that an alien's visa is automatically extended each time he becomes subject to the process of a court would result in the complete subjugation of the will of Congress…”

Although an alien cannot trigger 222(g) while in the United States under the Visa Waiver Program, an alien subject to 222(g) may not enter the United States under the Visa Waiver Program.

When Visa Overstay Penalties Apply

The following is a chart reproduced from 9 FAM 302.9-10(B)(6) listing various scenarios that trigger section 222(g) of the INA and scenarios that do not trigger 222(g):

9 FAM 302.9-10(B)(6) Summary of INA 222(g) Scenarios

When reading the chart, it is important to note the distinction between being admitted for a period of stay authorized by the Attorney General and being admitted for duration of status.

Most nonimmigrants are admitted until a specified date that is listed on the Form I-94, Arrival/Departure record. A nonimmigrant admitted until a specified date must depart the United States on the date listed on the Form I-94 unless he or she obtains an extension of stay or change of status.

A nonimmigrant who is admitted for duration of status is instead admitted to engage in the activity for which the visa was issued. In general, students (F and M), exchange visitors (J), information media representatives (I), certain Canadians, and diplomats are admitted for duration of status. The nuances of section 222(g) applicability to nonimmigrants admitted for duration of status are different than for nonimmigrants admitted until a specified date.

The FAM includes guidance for consular officers in utilizing the rules fond on the chart in 9 FAM 302.9-10(B)(1).

General Rule for Visa Overstays

First, in general, an alien will be found to have overstayed her visa if:

1. He or she remained in the United States beyond the specific date stated on the Form I-94, Arrival-Departure Record; or
2. The USCIS or an Immigration Judge has formally found that the alien has violated his or her status.

Aliens Admitted Until a Specified Date

An alien admitted until a specified date who leaves before that date will only be subject to 222(g) if the USCIS or an Immigration Judge makes a finding of a status violation before the alien's departure. However, it is important to note that the status violation must be formally found by USCIS or an Immigration Judge in order for 222(g) to apply in this case.

Aliens Admitted for Duration of Status

There are generally two scenarios in which an alien who was admitted for duration of status may be subject to 222(g):

(a) USCIS finds a status violation while adjudicating a request for an immigration benefit; or
(b) An Immigration Judge finds a status violation in proceedings against the alien.

It is important to note that in order for 222(g) to apply, the status violation must be found in one of the above scenarios by either the USCIS or an Immigration Judge. Any violation of status that is not found by the USCIS or an Immigration Judge will not trigger 222(g).

Please note that this applies to persons on diplomatic visas as well as students, exchange visitors, and media representatives.

Aliens Admitted Until a Specified Date with Pending Extension or Change of Status Application

If an alien admitted until a specified date files for an extension or change of status, remains in the United States after the date specified on the Form I-94 while the application is pending, and the application is subsequently approved, the alien will not be subject to 222(g). However, if an application in this case is denied, the alien will be considered subject to 222(g) regardless of the reasons for denial.

If an alien files a timely and non-frivolous application for extension or change of status, and departs the United States after the date specified on the Form I-94 but while the application is pending, he or she will not be subject to 222(g) regardless of whether the application is ultimately approved. If the application is found to be frivolous, section 222(g) will apply.

If the alien files a late application for extension or change of status and USCIS accepts the late application, 222(g) will not apply if the application is ultimately approved.

Aliens Admitted for Duration of Status with Pending Extension or Change of Status Application

If the alien admitted for duration of status files an extension for extension or change of status that is ultimately denied, 222(g) will not apply unless the denial was on account of a status violation.

Effect of Grant of Voluntary Departure

If an alien stays beyond the date indicated on his or her Form I-94, or is found to have violated his or her status, he or she will be subject to 222(g) even if simultaneously or subsequently granted voluntary departure. While the grant of voluntary departure stops the accrual of unlawful presence, it has no effect on the applicability of 222(g).

Notes Regarding Asylum and Temporary Protected Status

Because a pending asylum application is not considered time in authorized stay in the United States,² an applicant for asylum with a nonimmigrant visa should seek an extension of stay while his or her asylum application is pending.

A nonimmigrant who is granted Temporary Protected Status before his or her nonimmigrant visa expires is not subject to section 222(g).³

Automatic Cancellation of Visa

9 FAM 302.9-10(B)(5) instructs consular officers to physically cancel a visa on which an overstay occurred if it is still valid. In such a case, the consular officer will retain the Machine Readable Visa fee.

The Pearson Memo explains that an immigration officer who encounters an alien in possession of a nonimmigrant visa that has become automatically void under 222(g) must physically cancel the visa.

Conclusion: Visa Overstays

Overstaying a nonimmigrant visa may have serious adverse immigrant consequences for an alien. In addition to section 222(g) penalties, an alien who remains in the United States after the automatic cancellation of his or her nonimmigrant visa is deportable under section 237(a) of the INA. An alien who previously overstayed a nonimmigrant visa be subject to high scrutiny when seeking future immigration benefits.

Remaining in the United States after a visa overstay may result in the accrual of unlawful presence that will count toward the 3- and 10- year bars of inadmissibility. However, a visa overstay under section 222(g) does not, in every case, overlap with the accrual of unlawful presence. To learn about unlawful presence and the bars of inadmissibility, please read our full article on unlawful presence [see article].

A nonimmigrant who is unsure about whether something may lead to section 222(g) attaching should consult with an experienced immigration attorney for guidance. This is especially the case for a nonimmigrant with an extension or change of status application that will likely be pending after the expiration date on his or her Form I-90. If an alien who is already subject to 222(g) intends to apply for a nonimmigrant visa, he or she should consult with an experienced immigration attorney for guidance in the visa application process.

____________________

1. Memo, Pearson, Exec. Assoc. Comm., Field Operations (HQADN 70/12-P, IN 00-14), PDF courtesy of nafsa.org
2. Cable, DOS, 96-State-232251 (Nov. 8, 1996), reprinted in 73 No. 44 Interpreter Releases 1614 (Nov. 18, 1996)
3. IFM § 15.15(d), reprinted in 76 No. 6 Interpreter Releases 243, 252-56 (Feb. 8, 1999)

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 847-49, 870, Print. Treatises & Primers.