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Special Embassy Program
AmEmbassy Asmara
AmEmbassy Sarajevo
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Info USINS WashDC

Unclas State 225321
Visas
E.O. 12958:  N/A
Tags:  CVIS
Subject:  P.L. 104-208 Update No. 7 - INA 222(g):  Extraordinary 
Circumstances

Ref:	A) State 208799  B) State 212382 (Notal)

1.	Summary:

This is cable number 7 in a series providing information on the immigration 
provisions of P.L. 104-208. Listed below are the categories of applicants 
for whom the Department has determined that “extraordinary circumstances” 
exist such that an applicant in one of the categories who is otherwise 
subject to the 222(g) requirement that the applicant return to the country 
of his or her nationality for nonimmigrant visa issuance will be exempt 
from that requirement.  Except as noted below, a consular officer need not 
refer to the Department for an advisory opinion any case in which the 
consular officer is satisfied that the following circumstances exist:

2.	Doctors Serving Medically Underserved Areas of the U.S.

The legal and medical communities have brought  to the attention of the 
Department that physicians who qualify for participation in the program 
specified in INA Section 214(k) for former J-1 graduate medical students 
serving in medically underserved areas of the U.S. frequently fall out of 
status while awaiting the lengthy processing involved in the granting of a 
waiver of the INA 212(e) two-year home residence requirement. The 
Department has determined that, extraordinary circumstances shall be 
considered to apply to such physicians when applying for an H-1B visa for 
the purpose of participating in the 214(k) program. The determination is 
based on a number of factors, including primarily the public interest 
nature of this program and the fact that the Congress has passed special 
legislation to make it possible for these physicians to remain in the 
United States; that the physicians in question will provide essential 
medical services to otherwise underserved communities; and that requiring 
such physicians to return to their country of nationality to obtain visas 
would in many cases delay such services and likely require the expenditure 
of scarce  resources by their employers which could otherwise be used for 
the delivery of medical services.  However, such extraordinary 
circumstances shall apply only/only to those applicants for whom an 
employer filed either a petition with INS, or a 212(E) waiver application 
with an interested government agency (such as HUD, USDA, ARC, or a state 
health department) prior/prior to the alien’s existing J visa status having 
expired, and only if both the waiver application and the petition have 
subsequently been approved.  Note, for this purpose, that J status holders 
are ordinarily given “duration of status” admittance and allowed to remain 
in the U.S. for thirty days beyond the termination of their program.  Thus 
the petition or waiver filing required in these cases, in order to permit a 
physician to apply under extraordinary circumstances, would have had to 
have been prior to the termination of the thirty day period.  For those 
Canadian and Mexican posts which received Reftel (B), note that the 
category of extraordinary circumstances for the subject physicians has been 
expanded to include filing of the waiver request.

3.	Aliens with a Residence in a Third Country

Alien subject to the 222(g) requirement whose current foreign residence, as 
defined in 9 FAM 42.61, NI,  is in a country other than the country of 
their nationality shall be considered to be applying under “extraordinary 
circumstances” if they apply for a nonimmigrant visa at a post in such 
country of current residence rather than in the country of their 
nationality.  The fact that section 632 of the LIRIRA which added INA 
222(g) is titled “elimination of consulate shopping for visa overstayers,” 
indicates that Congress intended applicants covered by this new section to 
apply not in the place of their choosing, but in the country in which they 
would normally be expected to apply-ordinarily the country of nationality 
which usually provides the best forum for accurate adjudication thus, to 
the extent the 222(g) requirement was intended by Congress to permit the 
most thorough and useful adjudication of the applications of visa 
overstayers, then this purpose is best served by permitting an alien to 
apply in the country of nationality.  However, a Consular Officer in the 
country of nationality of such an alien may not use this exception alone to 
refuse to accept a nonimmigrant visa application filed by the alien.

Consular Officers should not be confused by the fact that the example in 
the FAM selected to illustrate definition of “residence” for this purpose 
is contained in the IV portion of the FAM.  The reference was chosen merely 
as the most appropriate means to demonstrate the standard which the 
Department wishes applied to NIV applications in determining whether 
extraordinary circumstances exist.

4. 	Alien filing for Change of Status

Consular Officers shall consider an applicant to be applying under 
extraordinary circumstances in any instance in which the applicant can 
demonstrate that, while the applicant was still in a period of authorized 
nonimmigrant status, a petition and request for change of status was filed 
by an employer on the applicant’s behalf and subsequent approved by INS, 
but the alien “technically” fell out of status because the INS was unable 
to approve the petition and change of status prior to the termination of 
the alien’s existing period of authorized stay.

Typically, in accordance with 8 CFR 248.1(B), the INS takes no action to 
remove an alien in this situation from the U.S.   Therefore, the Department 
believes that to impose the 222(g) requirement against the alien would 
contradict INS policy.  However, in an individual case, if the consular 
officer believes that the circumstances are such that a finding of 
extraordinary circumstances would contradict the intent of the statute the 
officer should request an advisory opinion from CA/VO/L/A.

5.	A  and G Visa Applicants

To the extent that applicants for A-1, A-2, G-1, G-2, G-3 and G-4 visas may 
be covered by INA 222(g) they shall be considered to be applying under 
extraordinary circumstances and shall not be subject to return to their 
country of nationality, regardless of any previous overstay.  The 222(g) 
requirement may not apply to such applicants by virtue of INA 102 in any 
event.  While the Department has not definitely resolved this issue, the 
Department has determined that imposition of the 222(g) requirement on 
these applicants would cause undo interference with the conduct of foreign 
relations and therefore warrants exceptions under “extraordinary 
circumstances” of 222(g).  Further, for the immediate future, applicants 
for A-3 and G-5 visas will be considered to be applying for visas under 
extraordinary circumstances.  However, the Department has determined that 
Section 222(g) shall be applied to these aliens at such time as the 
Department is able to notify all foreign missions and qualifying 
international organizations in the U.S. of the requirements of this section 
of law, after an appropriate notice period.  Posts will be informed when 
such notification is completed.

6.	Nonimmigrant visas issued to aliens pursuant to paragraphs 2, 3, 4, 
and 5 and to “homeless” aliens per paragraph 7 of Reftel (A) should be 
annotated “INA Section 222(g) overcome under extraordinary circumstances.”

7.	This guidance is effective immediately, however, the Department is 
engaged in ongoing discussions with INS concerning the subject of this 
cable.  Should such discussion result in any change to the guidance 
consular officers will be so informed.

Christopher