July 28, 1998

R 280233Z JUL 98
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
POUCH BUJUMBURA
POUCH ASMARA

UNCLAS STATE 136916

Visas

E.O. 12958: N/A
Tags: CVIS
Subject: P.L. 104-208 Update No. 39 - Revised 222G Guidance

Ref: (A) State 051296 (IIRAIRA Update No. 36) (B) 97 State 
235245 (Update no. 34) (C) 97 State 12764 (Update no. 16) 
(D) 96 State 232219 (Update No. 9) (E) 96 State 225371 
(Update No. 7)

1. This cable announces the establishment of a blanket 
“extraordinary circumstances” exemption under INA 222(g)(2)(B) 
for certain aliens who timely file for extension of stay or 
change of status and who depart after their I-94 has expired 
but before INS has decided their application.

2. As posts are aware, aliens subject to 222(g) may be 
exempted from the requirement that they obtain future 
NIVS in their country of nationality if the department 
if the department finds that “extraordinary circumstances” 
exists which merit an exemption. Ref E as modified by Ref A 
provided classes of cases which benefit from blanket 
“extraordinary circumstances” exemptions.

3. In REFTEL A, para 14, Department informed posts that 
if an alien admitted until a date certain files a timely 
application for extension of stay or change of status but 
the application is still pending at the time of the alien’s 
departure, and if the departure occurs after the expiration
date on the I-94, then the alien would be subject to 222(g). 
After discussions with INS, the Department has now determined 
to permit blanket exemptions in cases of aliens who 
overstayed pending resolution of a timely filed, nonfrivolous 
application for change or extension of status with the
INS and have to depart the U.S. while the application 
is pending. This policy includes cases where INS has 
cancelled an existing NIV at the time the application was 
taken and cases where the multientry visa remains valid. The 
“extraordinary circumstance” exemption would normally be merited
only if the alien did not work without authorization either 
before the application was filed or while it was pending.

4. To determine whether an application is nonfrivolous, posts 
need not make a determination that INS would ultimately rule 
in favor of the applicant.  Posts should consider an application 
nonfrivolous if it is not on its face a groundless excuse for 
the applicant to remain in the U.S. to engage in activities 
incompatible with his or her status.

To determine whether an alien filed in a timely manner posts 
should use evidence such as the dated receipt from or 
cancelled check payable to INS for the application to extend 
or change status together with evidence of the date the legal 
status expired, such as the I-94 or, if the original has been 
collected, a photocopy.

6. Posts should also be satisfied that the applicant did not 
work without authorization at any time before the application 
was filed or while it was pending. If the applicant had an 
alternate means of support during the time in which work has 
not authorized, posts may assume that the applicant did not work.

7. This is a blanket exemption when the above conditions are 
met and is being instituted because of delays in the processing 
of change or extension of status applications. The ultimate 
determination of whether the applicant will qualify for change 
or extension of status is an INS decision. Posts should avoid 
requesting extensive documentation on the above issues and 
should apply the “extraordinary circumstance” exception in 
all but blatant cases of abuse of the system. Posts are not 
required to seek guidance from CA./VO/L/A before determining 
that an “extraordinary circumstance” applies in these cases.

8. Those aliens who are ineligible to request a blanket 
exemption under INA 222(G) (2) may seek an exemption on 
an individual basis at the discretion of the consular officer. 
In those cases, posts are required to seek guidance from 
CA/VO/L/A before determining that an “extraordinary 
circumstance” exists.

Talbott.