==============================

R 0801022 NOV 96
FM SecState WashDC
To All diplomatic and Consular Posts
Special Embassy Program
AmEmbassy Asmara 2707-88
AmEmbassy Sarajevo 1190-91
AmEmbassy Bujumbura 4870-71
Info US-INS WashDC

Unclas State 232219
Visas
Corrected Copy (Text)
E.O. 12958: N/A
Tags: CVIS
Subject: P.L. 104-208 Update No. 9 Further Guidance on INA 222 (g)

Ref:	A) State 208799	B) State 22531

1.	Summary.  Department has received numerous inquiries concerning the 
scope of INA 222(g), in particular relating to whether the alien has 
remained in the U.S. “beyond the period of stay authorized by the Attorney 
General.”  We have discussed the issue with INS Headquarters, which 
provided certain guidance outlined below.  Posts are reminded that 222(g) 
applies only to aliens (1) who have been admitted on the basis of a 
nonimmigrant visa and (2) who remained in the U.S.  beyond their authorized 
period of stay.  222(g) does not apply to aliens who enter the U.S. without 
a visa (e.g. VWPP travelers, aliens who enter without inspection, etc.).  
It does not apply to parolees, it also does not apply to aliens who fell 
out-of-status for some reason other than an overstay.  Aliens who enter on 
a nonimmigrant visa and subsequently apply for asylum would still be 
subject to 222(g) if they stay in the U.S. beyond the period authorized 
under the NIV.  Conversely, aliens who remain in the U.S. beyond the 
authorized period of stay on an NIV but who are accorded temporary 
protective status (TPS) prior tot he expiration of their authorized stay 
are not subject to 222(g), provided they remain covered by TPS throughout 
their stay in the U.S. End Summary.

 Alien Must Have Entered on an NIV

2.	Admitted (into the U.S.) on the basis of a nonimmigrant visa.”  Aliens 
who enter the U.S. on some basis other than an NIV, or who are present in 
the U.S. without having been admitted, are not covered by 222(g).  Thus, an 
alien who is paroled into the U.S. or who enters the U.S. on the Visa 
Waiver Pilot Program (VWPP) or under some other waiver provision (e.g., 
Canadian Nationals) is not subject to INA 222(g), even if the alien stays 
beyond the authorized period of parole or remains beyond the period of stay 
authorized upon admission.  Aliens who entered the U.S. without inspection 
(EWI), although not in lawful status, are also not covered by 222(g), as 
they were not admitted on the basis of an NIV.

Alien Must Have Remained Beyond Authorized Stay

3.	Section 222(g) applies to overstays only, not to out-of-status cases 
generally.  An alien who violates status in some way but does not remain in 
the U.S. beyond his/her period of authorized stay is not subject to 222(g).  
Thus, section 222(g) would not apply to an alien who enters on a B visa and 
violates status by working or studying but who departs prior to his/her 
period of authorized stay (i.e., prior to the date stamped on the I-94).  
Aliens who are admitted for duration of status (D/S) are considered to have 
stayed beyond their period of authorized stay, and would be subject to 
222(g), if they remain in the U.S. beyond the completion of their 
studies/work in that status and any applicable grace period allowed for 
departure.

Asylum Applications and Voluntary Departure do not Extend the Period of 
Authorized Stay, but TPS May

4.	According to INS, 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 INA 222(g).  Thus, an alien who applies for asylum but remains 
beyond the period  of stay authorized on the NIV is subject to 222(g), even 
if the asylum request was filed prior to expiration of the authorized stay 
and even if the claim is still pending.  To avoid the applicability of 
222(g), an alien who applies for asylum must file separately for, and 
obtain, an extension of stay on the NIV.

5.	In certain situations, the INS may grant an out-of-status alien 
voluntary departure, which allows the alien to depart the U.S. by a 
specific date without facing deportation.  Voluntary departure is not 
considered a “period of authorized stay”, rather, it is a date by which the 
alien must depart.  If an alien has overstayed his/her authorized stay on 
an NIV and is subsequent granted voluntary departure (e.g., upon denial of 
the alien’s asylum claim), the alien would still be subject to 222(g) even 
if he/she departs prior to the date indicated in the voluntary departure 
order.

6.	According to INS, if an alien enters the U.S. on an NIV and, prior to 
the expiration of the period of authorized stay, is granted temporary 
protection status (TPS), INS will consider that stay to be automatically 
extended until such time as TPS expires as to that alien.  Aliens in this 
category would therefore not be subject to 222(g).  However, if the grant 
of TPS is made after the alien’s authorized stay was expired, or if the 
alien stays in the U.S. after TPS has expired, the alien would be 
considered to have remained beyond the authorized period of stay and would 
be subject to 222(g).

Advisory Opinion Requirements

7.	Posts should submit questions concerning the applicability of 222(g) 
does apply but is seeking a department determination that extraordinary 
circumstance exist such that an exception is warranted.  Post should submit 
an advisory opinion request to both CA/VO/L/A and CA/VO/F/P.  Please note 
that the Department will not issue advisory opinions on the issue of 
extraordinary circumstances unless the alien has already applied for a visa 
and been found by the consular officer to be subject to 222(g).  Posts 
should advise aliens who are in the U.S. and who believe that they may be 
subject to 222(g) that the Department will not issue an advisory opinion on 
a request for an extraordinary circumstances finding unless and until the 
alien applies at Post.

8. 	Minimize considered.

Christopher