R 17 1111Z DEC 97
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY BUJUMBURA
AMEMBASSY SARAJEVO
AMEMBASSY PARAMARIBO
INFO USINS WASHDC

UNCLAS STATE 235245

Visas, Inform Consuls

E.O. 12958: N/A
TAGS: CVIS

Subject:	P.L. 104-208 Update No. 34 - 212(a)(9)(B)

Ref:		(A) State 02429  (B) 96 State 239978

1.  A detailed draft ALDAC on the interpretation and application of new INA 
212(a)(9)(B) is currently in the clearance process.  Pending clearance of 
that cable, Department provides the following interim guidance, which 
supplements guidance already provided in Refs A and B.

2.  Under INA 212(a)(9)(B)(i)(I), aliens who were unlawfully present in the 
U.S. for over 180 days but less than one year, and who subsequently depart 
the U.S. voluntarily prior to commencement of removal proceedings, are 
inadmissible for three years.  Under INA 212(a)(9)(B)(i)(II), aliens who 
were unlawfully present in the U.S. for one year or more, and who 
subsequently depart the U.S. are inadmissible for ten years.

3.  INS has advised that the following general rules should be applied in 
determining whether an alien is considered to be “unlawfully present” for 
purposes of 212(a)(9)(B):

(A)  Per Ref A, no period of time prior to April 1, 1997, counts 
toward “unlawful presence” for purposes of 212(a)(9)(B).

(B)  Entrants Without Inspection:  In  the case of EWI’s, unlawful 
presence begins to accrue as of the date the alien entered the U.S. 
without admission or parole.

(C)  Duration of Status Cases:  An alien admitted for “duration of 
status” (such as a student or exchange visitor) will only begin to 
accrue unlawful presence if either:
? An Immigration Judge (IJ) finds the alien has violated status 
and is excludable/deportable/removable; or, 
? The INS, in the course of adjudicating an application for a 
benefit  (e.g., extension of stay or change of status), 
determines that a status violation has occurred.

(D)  Aliens Admitted Until a Date Certain:  In general, an alien 
admitted until a specified date will begin to accrue unlawful presence 
either:
 
? When the date on the I-94 (or any extension) has passed, or
? If INS or an IJ makes a finding of a status violation, 
whichever comes first.

(E)  Except in cases where the alien either entered without inspection 
(EWI) or stayed beyond the date specified on the I-94 (overstay), 
conoffs may not refuse an alien under 9B unless INS or an IJ has made 
a formal finding that the alien violated status.  Other than in 
overstay and EWI cases, a conoff’s belief that a particular alien 
violated status is not/not in itself a sufficient basis for a 9B 
refusal. Even if the alien admits to an apparent status violation 
(other than an overstay or EWI), that would not be a basis for a 9B 
finding, absent a prior INS or IJ finding of a status violation.  On 
the other hand, a finding by ConOff that the alien entered without 
inspection or overstayed a specified date on the I-94 may be a proper 
basis, in and of itself, for a 9B refusal, assuming the alien had 
accrued the requisite period of unlawful presence:  no prior INS or IJ 
finding is required in such cases.

(F)  In cases where the “unlawful presence” determination is based 
on an INS or IJ finding of a status violation, the clock starts to run 
from the date of the INS or IJ determination, not/not from the date on 
which the alien enters on an F visa on September 1, 1997, drops out of 
school on October 1, 1997, and fails to depart, and if the INS or an 
IJ subsequently makes a finding of a status violation on, say, 
February 1, 1999, the “unlawful presence” clock begins to run on 
February 1, 1999, not on October 1, 1997, and the alien would not be 
subject to 9B unless he remained in the U.S. without authorization for 
an additional 181 days or more after the February 1, 1999 
determination.

(G)  INS has decided that a grant of “voluntary departure” (V/D) 
constitutes a period of authorized stay for 9B purposes. Thus, the 
period between the date of the V/D order and the date by which the 
alien must depart does not/not count toward any period of “unlawful 
presence.”  However, if the alien fails to depart by the date 
specified in the V/D order, the clock starts running.

(H)  Periods of “unlawful presence” under (9)(B) are not/not counted 
in the aggregate.  For example, the three-year bar of 9B1 would not 
apply to an alien who made two prior visits to the United States, 
accrued 4 months of “unlawful presence” during each visit, and is 
now applying for a nonimmigrant visa to make a third visit to the U.S.

4.  In determining whether an alien has been “unlawfully present” for 9B 
purposes, post should normally consider information available from the visa 
application process, post records, and the class lookout system.  Posts 
should not make routine requests for record checks from INS or the 
Department, as arrival/departure records and records of authorization 
extensions or changes of status are not always complete or readily 
accessible.

5.  Minimize considered.

Pickering