I recently heard something about a new law which prevents third country nationals from applying for visas at consulates in Canada and Mexico. Is this true?

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Pub. L. No. 104-208) ("IIRAIRA") has amended the Immigration and Nationality Act ("INA") to prevent consulate shopping for aliens who have fallen out of status in the United States. It does not apply to aliens who have not fallen out of status.

IIRAIRA §632(a) adds INA 222(g) which clarifies that where an alien is admitted as a nonimmigrant and remains in the United States beyond the authorized period of stay authorized by the Attorney General, his or her visa is void after the conclusion of such period of stay. It further states that such an alien is ineligible to be readmitted as a nonimmigrant except:

1. on the basis of a new visa 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

2. where extraordinary circumstances are found by the Secretary of State to exist.

In a cable (No. 96-State-208799) sent to all diplomatic and consular posts on October 7, 1996, the Department of State interpreted this provision to mean that, effective immediately, any alien (whether before or after the enactment of IIRAIRA §632), who:

1. was lawfully admitted in nonimmigrant status; and

2. who overstayed by even one day the initial period of authorized stay (or any extension of such period granted by INS);

may no longer use the visa with which the alien initially entered the United States to reenter the United States and is not eligible for further nonimmigrant visa issuance except in the country of the alien's nationality (or designated post where there is no consular office in the home country).

This new law provides considerable hardship for aliens who reside in third countries (i.e. landed immigrants of Canada). These aliens may no longer have ties to their country of nationality. Nevertheless, INA 222(g) bars them from applying for a new visa at a consulate located in Canada.

The Department of State cable indicates that there are two exceptions to this bar:

1. where the Secretary of State finds that extraordinary circumstances exist; and

2. where an alien overstayed prior to the enactment of the IIRAIRA but, subsequent to the overstay and prior to the enactment of the IIRAIRA , was issued a new nonimmigrant visa and used this visa to enter the United States. However, at the expiration of that visa the alien must apply in the country of his or her nationality for each and every subsequent visa which the alien wishes to obtain.

According to the cable, the Visa Office of the Department of State is still considering what might be considered "extraordinary circumstances". Situations which the Visa Office is considering include those where the applicant somehow fell out of status due to no fault of their own and there is some public interest in their presence in the United States. Consular officers are instructed to request an advisory opinion from the Visa Office where they are asked to consider extraordinary circumstances.

Mere inconvenience for the applicant or an employer will probably be insufficient. Generally, requests should involve some truly extraordinary circumstance. The Department of State believes that the vast majority of such cases will be based on humanitarian grounds.