R 040134Z APR 98
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
GUANGZHOU POUCH
BUJUMBURA POUCH
PORT MORESBY POUCH
INFO HQ USINS WASHDC
DEA WASHDC 0000
USIA WASHDC 0000
DIRNSA FT MEADE MD
CIA WASHDC 0000
DEPT OF JUSTICE WASHDC

Unclas State 060539
Visas, Inform Consuls

E.O. 12958: N/A
Tags: CVIS
Subject: 	P.L. 104-208 Update No. 36:  212(a)(9)(A)-(C), 
212(a)(6)(A) and (B)

Ref: 		A) 96 State 239978 (IIRAIRA Update No. 10)
B) 97 State 62429 (Update No. 20)
C) 97 State 235245 (Update No. 34)
D) 98 State 51296 (Update No. 35)

1.  Summary.  Reftels provided posts with preliminary guidance on revised 
INA Section 212(a)(9), relating to aliens previously deported/removed and 
aliens who depart after being "unlawfully present."  This cable provides 
more detailed guidance, based on recent interpretations from INS.  The 
application of 212(a)(9) can be quite complicated.  In particular, there 
are many exceptions and special rules to consider when calculating the 
period of "unlawful presence" for purposes of the new three- and ten-year 
bars of 212(a)(9)(b).  In addition, some 212(a)(9) ineligibility provisions 
apply to events or conduct prior to April 1, 1997, and some do not.  The 
basic rules for interpreting 212(a)(9) (along with additional guidance on 
revised 212(a)(6)(A) and (B)) are set forth below.  At the end of this 
cable is a summary chart listing the provisions and the types of cases they 
cover, along with several examples to illustrate how the rules operate in 
practice.  End summary

212(a)(9)(A) ("9A"):
Aliens Previously Removed (Deported)

2.  New 212(a)(9)(A)(i) and (ii) roughly correspond to former 212(a)(6)(A) 
and (6)(B), relating to aliens previously excluded/deported.  The main 
change from the previous law is that the periods of inadmissibility have 
been substantially lengthened:

? arriving aliens denied admission and removed (excluded), who were 
previously ineligible for one year, are now generally ineligible for 
either: five years, if the removal order was issued on/after April 1, 
1997, or ten years, if the removal (exclusion) order was issued prior 
to 4/1/97;

? aliens ordered removed after having been admitted or after having 
entered without inspection, who were previously ineligible for five 
years, are now generally ineligible for ten years; and

? removed/deported aliens convicted of an aggravated felony, who were 
previously ineligible for twenty years, are now permanently 
ineligible.

3.  212(a)(9)(A)(i) ("9A1"):  This section applies to arriving aliens who 
applied for admission and were found inadmissible, and who were ordered 
removed on or after April 1, 1997, by either an immigration judge under INA 
240 or by the POE Inspector under the new summary removal provisions of INA 
235(b)(1).  An alien in this category is ineligible for five years after 
the first removal, or for twenty years if removed more than once, or 
permanently, if the alien was convicted of an aggravated felony.  Conoffs 
should note that this section applies only/only to removal orders which 
were issued on or after April 1, 1997.  An alien excluded before that date 
under pre-IIRAIRA provisions would be ineligible for ten years under new 
INA 212(a)(9)(A)(ii), as described below.

4.  212(a)(9)(A)(ii) ("9A2"):  under this section, aliens previously 
ordered removed or deported, other than those covered by 9A1, are 
ineligible for either: ten years (for a first removal), twenty years (for 
subsequent removals), or permanently (in the case of deportees convicted of 
aggravated felonies).  Unlike 9A1, this provision applies to orders 
rendered either before or after April 1, 1997.

5.  The class of aliens subject to the ten-year bar of 9A2 Includes:

? aliens apprehended in the U.S. and removed under INA 240;

? aliens apprehended in the U.S. and deported under former INA 242 
(i.e., those formerly subject to the five-year bar of old INA 
212(a)(6)(B));

? arriving aliens excluded under the former version of INA 236 (i.e., 
those formerly subject to the one-year bar of old INA 212(a)(6)(A)); 
and

? aliens denied admission under VWPP and ordered removed.

6.  As under prior law, if an alien is permitted to withdraw his/her 
application for admission prior to any removal order being entered, the 
alien would not be ineligible under either subsection of 9A.  If, however, 
an alien departs the U.S. on his/her own after/after a removal order has 
already been issued, the alien is subject to 9A.

7.  Also as under prior law, aliens subject to these provisions may request 
consent from the attorney general to reapply for admission at any time 
following removal.  See INA 212(a)(9)(A)(iii).  (Nonimmigrant visa 
applicants must seek consent to reapply in conjunction with their request 
for a waiver under INA 212(d)(3)(A)).

8.  As before, an alien seeking consent to reapply for admission prior to 
the expiration of the ineligibility period must complete the required Form 
I-212.  The procedures to be followed for processing such requests are 
unchanged, and are set forth in 9 FAM Part IV Appendix N, Sec. 402, and 
Notes 4 and 5 to former 9 FAM 40.61 (covering former INA 212(a)(6)(A)).  
(Notes to new 9 FAM 40.91, covering new 9A, have not yet been published.  
If posts do not have access to the notes to former 9 FAM 40.61 and require 
assistance in processing requests for consent to reapply, please contact 
CA/VO/F/P or your regional INS office.)

9.  The change in the law has resulted in the somewhat anomalous result 
that some aliens who had been excluded/deported under the old law and 
subsequently satisfied the prior one- or five-year bar or had received 
consent to reapply and were then free to travel to the U.S. now may find 
themselves once again inadmissible.  For example, an alien excluded in 1990 
would only have been inadmissible for one year and could, under old 
212(a)(6)(A), have freely traveled to the U.S. any time from 1991 on, until 
9A2 went into effect on April 1, 1997, at which time the alien became 
ineligible again, this time for ten years from the date of deportation, or 
until 2000.

10.  To address the perceived inequities in retroactively applying new, 
longer ineligibility periods to aliens who were excluded/deported under the 
old law and who expected only to be subject to the one- or five-year bar, 
or who were granted consent to reapply based on the one- or five-year bar, 
INS has prepared draft regulations which would establish special procedures 
for processing requests for consent to reapply in such cases.  Under the 
draft regulation, aliens who were ordered deported prior to 4/1/97 could 
seek the Attorney General's consent to reapply for admission without having 
to file a separate Form I-212 or pay the attendant processing fee.  To 
ensure equitable treatment of aliens deported under pre-IIRAIRA law, the 
draft regulations would allow for a blanket grant of consent to reapply if 
the alien meets certain criteria.  In particular, the alien would have to 
establish that he/she is not ineligible under any other ground of 212(a), 
and that he/she either: (a) remained outside the U.S. for the period 
required under the old law, or (b) was granted consent to reapply for 
admission prior to 4/1/97. 

11.  Pending promulgation of these proposed regulations, INS is extending 
sympathetic consideration, on a case-by-case basis, to aliens who file I-
212 applications and who have already been abroad for the period of 
ineligibility which applied to them under the old law.  Posts will be 
notified when the proposed regulations come into force. Until that time, 
both the form and the fee will be required.

12.  INS routinely enters removed/deported aliens into the lookout system 
and, as before, posts should rely primarily on class checks to identify 
aliens subject to 9A. FYI:  The class codes for 9A require some 
explanation.  The logical class codes for 9A would be the shorthand 
versions of the two applicable INA subsections, i.e., 9A1 and 9A2. However, 
because an alien subject to 9A1 might be ineligible for five years, twenty 
years, or permanently, and an alien subject to 9A2 might be ineligible for 
ten years, twenty years, or permanently, it has not sufficient to use only 
two class codes.  Rather, six class codes were needed, to indicate both the 
applicable section of the law and/and the applicable ineligibility period.  
To complicate matters, the class code had to be limited to three 
characters.  To address all these considerations, class codes had to be 
selected which do not correspond exactly to the shorthand version of the 
applicable INA section.  The codes are as follows:

91A (or ER6 or ER7) - subject to five-year bar of 9A1
91B - subject to twenty-year bar of 9A1
91C - subject to permanent bar of 9A1
92A - subject to ten-year bar of 9A2
92B - subject to twenty-year bar of 9A2
92C - subject to permanent bar of 9A2

The codes can be quickly deciphered in the following fashion:  The first 
character (9) refers to INA section 212(a)(9), the second character (1 or 
2) indicates whether the ineligibility is under 9A1 or 9A2, and the last 
character (A, B or C) indicates the length of the ineligibility period, 
with A indicating the shortest period (five or ten years, depending on 
whether it's a 9A1 or 9A2
case), B indicating a twenty-year bar for repeat removals, and C indicating 
a permanent bar for aggravated felony convictions.  (Note: aliens subject 
to 9A1 may also appear under the INS Code ER6 or ER7.  Codes ER6 and ER7 
indicate that the alien was denied admission at the POE under the new 
expedited removal provision for aliens found inadmissible under either INA 
212(a)(6)(C) or 212(a)(7), respectively.)

13.  Conversion of pre-existing lookout codes is a complex operation, and 
not all aliens who were excluded or deported prior to April 1, 1997, and 
who are still ineligible under the new law will appear in class under the 
proper code. State class entries under the former codes have yet to be 
converted.  INS entries have been converted but it is now apparent that old 
6a entries were incorrectly converted to 91A (the class code for the five-
year bar of 9A1), when they should have been converted to 92a (the class 
code corresponding to the ten-year bar of 9A2).  If post encounters a 91A 
class entry dated prior to April 1997, post should assume that this was an 
error and that the proper class code should be 92A.  (recall that the five-
year bar of 9A1 applies only to aliens whose removal order has issued 
on/after April 1, 1997; therefore, it is not possible to have a valid 91A 
class entry prior to April 1997.)  Also please note that in many cases 
where a deportation ineligibility has been "resurrected" by the retroactive 
application of the new, longer ineligibility periods, there will be no 
class entry because the pre-
IIRAIRA class entry will have already been purged.  However, as noted above 
(paras 10-11), these cases would most likely be approved for consent to 
reapply in any event, so the absence of a class entry in such cases is not 
particularly significant.

14.  If post is not able to determine the proper ineligibility period from 
the class entry and the interview with the applicant, post should ask the 
alien to produce the deportation or removal order.  Post should not send 
routine requests to INS to check its records but should place the burden on 
the applicant to produce his/her deportation record for review by Conoff.

212(a)(9)(B)  ("9B") :
Aliens Unlawfully Present

General Scope, Differences Between 9B1 and 9B2

15.  The three-year bar:  under INA 212(a)(9)(B)(i)(I)("9B1"), 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.  A 
departure is considered voluntary for 9B1 purposes if the alien departs 
either entirely on his/her own or pursuant to a grant of "voluntary 
departure."

16.  The ten-year bar:  under INA 212(a)(9)(B)(i)(II)("9B2"), 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.

17.  There are important differences between 9B1 and 9B2, aside from the 
obvious differences in the length of the ineligibility period and the 
period of unlawful presence required to trigger it.  As explained more 
fully below, 9B1 applies only to cases involving departures from the U.S. 
which were voluntary and which occurred prior to the commencement of 
removal proceedings.  9B2, on the other hand, applies to both voluntary and 
involuntary departure
cases, and regardless of whether departure occurred before of after 
commencement of removal proceedings.

18.  One of the most confusing aspects of 9B is the differing treatment 
accorded to aliens under 9B1, depending on whether the alien departed 
before or after commencement of removal proceedings.  Because 9B1, by its 
terms, applies to aliens who departed "prior to the commencement of 
[removal] proceedings," it follows logically that it does not/not apply to 
aliens who depart after/after removal proceedings have commenced.  Removal 
proceedings generally begin when a Form I-862, "notice to appears (NTA), is 
filed with the immigration court.  Thus, an alien who was unlawfully 
present for over 180 days but less than one year who departs voluntarily 
before any Form I-862 has been filed with the immigration court would/would 
be subject to the three-year bar, whereas an alien in the same 
circumstances who departs voluntarily after/after an I-862 has been filed 
would not/not be subject to the three-year bar, even though he/she has 
unlawfully present for the period set forth in 9B1.  (Although such an 
alien would not be subject to 9B, he/she might be ineligible for a visa 
under some other INA provision (e.g., as a self-deportee under 9A (if 
departure occurred after an order of removal has issued), or for failing to 
attend an immigration hearing under 212(a)(6)(b)).

19.  In a particular case, it may be difficult to know whether the alien 
departed before the filing of an I-862 and commencement of removal 
proceedings.  In such cases, if post finds that the alien voluntarily 
departed the U.S. after being unlawfully present for more than 180 days but 
less than one year, conoff may presume that the applicant is subject to the 
three-year bar of 9B1.  The burden is then on the applicant to prove that 
removal proceedings had already commenced by the time the applicant 
departed.  If the applicant can meet that burden (e.g., by presenting a 
copy of the Form I-862), then the alien would not be ineligible under 9B1 
(although, as noted above, presentation of such evidence may reveal an 
ineligibility under 9A, 212(a)(6)(B), or some other provision).

20.  Unlike the three-year bar of 9B1, the ten-year bar of 9B2 makes no 
reference to departure prior to removal proceedings.  Therefore, the ten-
year bar of 9B2 applies to aliens who depart the U.S. after an unlawful 
presence of one year or more, regardless of whether departure occurs before 
or after any removal proceedings have begun, i.e., before or after the I-
862 was filed with the immigration court.

21.  Another important difference between 9B1 and 9B2 is that 9B1 applies 
only if the alien's departure from the U.S. was voluntary.  9B2, however, 
makes no mention of voluntariness.  Thus, an alien who is removed 
(deported) after accruing more than 180 days but less than one year of 
unlawful presence would not/not be subject to the three year bar of 9B1, 
both because departure would not have occurred before commencement of 
removal proceedings and/and because the departure was not voluntary.  (The 
alien would, however, be subject to 9A.)  On the other hand, an alien who 
is removed after accruing one year or more of unlawful presence would/would 
be subject to 9B2, even though departure was involuntary.  (The 9B2 
ineligibility would be in addition to whatever 9A ineligibility applied.)

22.  The three- and ten-year bars of 9B1 and 9B2 are triggered by a 
departure from the U.S. following accrual of the specified period of 
unlawful presence.  If an alien accrues the requisite period of unlawful 
presence but does not subsequently depart the U.S. (e.g., in the case of an 
alien applying for adjustment of status with the INS), then 9B would not 
apply.  This point is primarily provided on an FYI basis and is not likely 
to be an issue in the visa context because visa applicants generally must 
depart the U.S. in order to apply for a visa.  (Although it is possible in 
some cases for an alien to apply for and obtain a visa without departing 
the U.S., stateside visa processing through VO, or a consular waiver of the 
personal appearance requirement for aliens resident in the consular 
district but present in the U.S., would not be appropriate in cases where 
the alien appears ineligible under 9B.)

Calculating "unlawful presence" under 9B

23.  The statute defines "unlawful presence" as presence in the U.S. 
without admission or parole, or presence in the U.S. after the expiration 
of the period of stay authorized by the Attorney General.  This definition 
essentially encompasses three categories of aliens:  aliens who enter 
without inspection (EWI's), aliens who overstay the date on their I-94 
(overstays), and aliens who are determined by the INS or an immigration 
judge to have violated the terms of their stay (status violators).  While 
this would appear fairly straightforward on its face, in fact, there are 
many special rules, caveats, and exceptions which can make calculation of 
the period of unlawful presence quite complicated.  The following 
guidelines should help clarify the calculation process:

24.  Per Ref A, no period of tine prior to April 1, 1997, counts toward 
unlawful presence for 9B purposes.  Because the 9B clock did not start 
ticking until 4/1/97, no alien could have been subject to the three-year 
bar of 9B1 prior to September 28, 1997 (181 days after April 1), and no 
alien can be subject to the ten-year bar of 9B2 until April 1, 1998, at the 
earliest.

25.  There are several other types of unlawful presence which do not count 
toward the 9B calculation.  The most notable exception applies to unlawful 
presence prior to the alien's 18th birthday.  Under INA 
212(a)(9)(B)(ii)(I), "no period of time in which an alien is under 18 years 
of age shall be taken into account in determining the period of unlawful 
presence ...."  In other words, for 9B to apply, the alien must have been 
unlawfully present in the U.S. more than 180 days, beginning on or after 
the alien's eighteenth birthday.  There is no way that an alien under the 
age of 18 could be ineligible under 9B.

26.  The law also exempts periods of unlawful presence accrued by certain 
aliens with bona fide asylum applications pending, beneficiaries of family 
unity protection, and battered women and children.  See 
212(a)(9)(B)(iii)(II)-(IV).  In addition, 212(a)(9)(B)(iv) suspends the 
clock -- for purposes of 9B1 but not/not 9B2 -- for up to 120 days for 
aliens with pending applications for extension of stay or change of status, 
provided the application has timely filed and non-frivolous and the alien 
did not take up unauthorized employment prior to or during the pendency of 
the application.  INS is preparing regulations which eliminate any unlawful 
presence if the alien filed the application in a timely manner, provided 
the application was subsequently granted; consistent with this, aliens 
should not be considered to have accrued any unlawful presence during the 
pendency of a successful application for extension or change of status.  If 
a visa applicant who otherwise appears ineligible under 9B claims that 
he/she benefits from any of these special exemptions or tolling provisions, 
conoff should not routinely query INS but should instead place the burden 
on the alien to establish the facts which would fit the alien within the 
exception.

27.  Periods of unlawful presence under 9B are 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. (in such circumstances, however, a 
consular officer may have
questions concerning the alien's eligibility for a visa under INA 214(b), 
222(g), or other 212(a) grounds).

28.  Conditional Residents:  If a conditional permanent resident fails to 
file a timely petition to remove conditional status as required by INA 216 
and 216A, the conditional resident's status is automatically terminated, 
and unlawful presence will begin to accrue as of the date on which 
conditional status expired.  INS regulations allow INS officers to consider 
late petitions when the alien can establish the late filing has for good 
cause.  In such cases, the INS can approve the petition retroactively, 
which means that there is, in effect, no interruption in the alien's LPR 
status and no accrual of unlawful presence. If INS has served an alien with 
a notice of intent to revoke conditional LPR status during the two-year 
period, the alien continues to enjoy all the rights and privileges of an 
LPR until LPR status is terminated.

29.  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.  (For aliens who entered before 4/1/97, unlawful 
presence begins accruing on 4/1/97, per para. 24 above.)

30.  Overstays/Status Violators:  Like INA 222(g) ("222(g)"), 9B applies to 
certain aliens who remain in the U.S. beyond "the period of stay authorized 
by the Attorney General."  As with 222(g), the interpretation of this 
language can be quite complicated.  In general, the term "period of stay 
authorized by the Attorney General" for purposes of 222(g) and 9B will be 
interpreted similarly.  In Ref D, Department sent guidance on recent 
revisions to the interpretation of 222g, which were prompted by the 
agreement of INS and the department to conform the interpretation of 222(g) 
to the guidance on 9B.  Without repeating that Septel or all the prior 
222(g) guidance, Department would like to point out the following key 
points as they relate to the interpretation of unlawful presence for 9B 
purposes in cases where voluntary departure is not granted.  (See Para. 31 
for the effect of a grant of voluntary departure.):

A .  Duration of Status Cases:  Although most nonimmigrants are admitted 
for a specified period of time, students, exchange visitors, information 
media representatives ("I" visa holders), and holders of certain diplomatic 
visas are usually admitted for "duration of status" (D/S).  An alien 
admitted for "duration of status" will begin to accrue unlawful presence 
only 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 or adjustment of status), 
determines that a status violation has occurred.

B.  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.

C.  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.

D.  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 
actually began violating status.  For example, if an 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 subsequently makes a finding of a status 
violation on, say, February 1, 1999 in connection with the alien's request 
for F-1 reinstatement, the 9B 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.

31.  Voluntary Departure:  The following special rules and considerations 
apply to cases involving a grant of voluntary departure (V/D):

A.  INS has decided that a grant of voluntary departure is "a period of 
stay authorized by the attorney general," but only for 9B purposes and not 
for any other purpose (i.e., an alien granted voluntary departure would not 
be considered in authorized status for purposes of, e.g., applying for a 
change, extension, or adjustment of status).  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.

B.  A grant of voluntary departure does not "cure" or undo any past periods 
of unlawful presence which may have occurred prior to the V/D order;  a 
grant of V/D merely "stops the clock" on unlawful presence.  Thus, an alien 
who is granted voluntary departure and who departs prior to the date 
specified in the V/D order may still be subject to 9B, if, prior to the V/D 
order, the alien had already accrued sufficient "unlawful presence" to 
trigger 9B.

C.  If an alien has been unlawfully present for more than 180 days but less 
than one year (i.e., a potential 9B1 case) and voluntary departure is 
granted during that period, post should note whether V/D was granted in the 
context of removal proceedings.  If so, then the alien would not be 
ineligible under 9B1, because in such a case the alien's departure would 
necessarily have occurred after commencement of removal proceedings.  
(Rrecall that the three-year bar of 9B1 does not apply if departure occurs 
after removal proceedings have begun.)  It is the applicant's burden to 
establish whether V/D was granted and, if so, whether it has granted in the 
context of pending removal proceedings.  Post should not need to query INS 
directly.

D.  As noted above, the 9B clock starts to run (again) once the period of 
voluntary departure has expired.  Thus, aliens granted voluntary departure 
who remain unlawfully in the U.S. after the date on which they were 
required to depart will be subject to 9B if they accrue enough (additional) 
unlawful presence after expiration of the period of voluntary departure to 
trigger the ineligibility.

Waiver Available for 9B

32.  NIV applicants who are subject to 9B are eligible for 212(d)(3)(A) 
waivers.  IV applicants are eligible to apply for waivers under 
212(a)(9)(B)(v), if they are the spouse, son, or daughter of an AMCIT or 
LPR. (note that parents of AMCITs are not/not eligible for waivers.)  Under 
the standard set by the statute, INS may not grant an IV waiver of 9B 
unless the applicant establishes that refusal of admission would result in 
"extreme hardship" to the AMCIT or LPR relative.

Scope of Examination/Evidence to Consider in 9B Cases

33.  In many cases it will be difficult to determine whether an alien has 
been unlawfully present in the U.S. and, if so, for how long.  It is simply 
not practical to require each applicant to document his/her location and 
status every moment from 4/1/97 on in order to exclude definitively the 
possibility of a 9B ineligibility. Rather, our efforts must be focused on 
those cases likely to produce results.  Therefore, conoffs should not 
routinely undertake in-depth questioning of applicants concerning possible 
ineligibility under 9B unless, in the normal course of processing a 
particular visa application, the possibility of a previous period of 
unlawful presence becomes apparent through otherwise routinely available
information (e.g., inspection of the passport, answer to questions on OF-
156 or OF-230 concerning prior presence in the U.S., information on I-130 
IV petition regarding whereabouts and status of beneficiary, etc.)

34.  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.  (INS has 
advised that it may enter lookouts on aliens who have been found by an INS 
adjudicator or an IJ to have violated status.  These lookouts would 
automatically pass into class.)  Posts should not make routine requests for 
record checks from INS or the Department, as arrival/departure records and 
records of authorized extensions or changes of status are not always 
complete or readily accessible.

212(a)(9)(C) ("9C"):
Unlawful Entry After Previous Violation

(9)(c)(i)(I)

35.  INA 212(a)(9)(C)(i)(I) renders permanently inadmissible any alien who 
was unlawfully present in the U.S. for more than a year in the aggregate, 
and who subsequently entered or attempted to enter the U.S. without 
inspection.  This provision primarily affects aliens who attempt to 
circumvent an ineligibility under 9B by slipping across the border 
illegally.  Posts should note, however, that not everyone subject to this 
provision would necessarily have been subject to 9B.  This provision allows 
separate periods of unlawful presence to be added together when calculating 
the period of unlawful presence, whereas 9B does not.  Thus, an alien who 
was unlawfully present, say, for three separate periods, each period 
lasting five months, would not be subject to any 9B bar (because no one 
period lasted more than 180 days), but if the alien attempted to re-enter a 
fourth time without inspection, he/she would be subject to this provision 
because the total unlawful presence exceeded one year.

36.  As with 9B, periods of time prior to April 1, 1997, do not count 
toward unlawful presence for purposes of 212(a)(9)(C)(i)(i).  Because the 
reentry or attempted reentry without inspection must have occurred after 
more than one year of unlawful presence, and because the unlawful presence 
itself must have occurred on/after April 1, 1997, it follows that no alien 
could be refused under this section unless the illegal reentry/attempted 
reentry occurred on or after April 2, 1998, repeat, April 2, 1998.  
Therefore, in no case could an alien be refused a
visa under this section prior to April 2, 1998.

(9)(c)(i) (II)

37.  INA 212(a)(9)(C)(i)(II) renders permanently inadmissible any alien who 
was ordered removed and who subsequently entered or attempted to enter the 
United States without inspection.  This provision primarily affects 
deportees who attempt to avoid a 9A refusal or denial of admission by 
slipping across the border illegally.  It is broader than that, however, in 
that it also covers previous deportees who had already remained outside the 
U.S. for the period required by 9A and whose entry without inspection (EWI) 
or attempted EWI therefore would not circumvent 9A.

38. INA section 212(a)(9)(C)(i)(II) applies to aliens previously ordered 
removed at any time --  whether before, on, or after April 1, 1997.  
However, for (9)(C)(i)(II) to apply, the alien's unlawful reentry or 
attempted reentry without inspection must have occurred on or after April 
1, 1997.  Thus, an alien deported prior to 4/1/97 who attempted to reenter 
without inspection on or after 4/1/97 would/would be ineligible under this 
provision, whereas an alien in the same circumstances who had attempted 
reentry without inspection prior/prior to 4/1/97 would not/not be subject 
to this provision.

39.  While these rules may seem confusing, they actually follow logically 
from the rules applicable to 9A and 9B.  Thus, (9)(C)(i)(I), which is aimed 
primarily at aliens seeking to circumvent a 9B ineligibility, follows the 
same rule as 9B: unlawful presence prior to 4/1/97 does not/not count.  On 
the other hand, (9)(C)(i)(II), which is aimed primarily at aliens seeking 
to circumvent a 9A ineligibility, follows the same rule as 9A: deportations 
prior to 4/1/97 generally do/do count (at least for purposes of 9A2).

40.  An alien found ineligible under either subsection of 9C may seek 
"consent to reapply" for admission from the Attorney General after he or 
she has been outside the U.S. for more than 10 years.

41.  In some cases, aliens subject to 9C would have been entered in NAILS 
by INS (certainly those previously deported).  Such entries would pass into 
class, and post may therefore generally rely on class checks to identify 
aliens ineligible under 9C.  The class code for this ineligibility is 9CP, 
to distinguish it from the former Code 9C, relating to child abductions.

212(a)(6)(A) and (6)(B)

42.  INA 212(a)(6)(A) ("6A") renders inadmissible aliens present in the 
U.S. without having been admitted or paroled, or who arrive at an 
unauthorized entry point.  As noted in Ref A, this provision applies only 
to arriving aliens and aliens already present in the U.S., and therefore it 
is not applicable to visa applications and is not a possible ground of visa 
refusal.  (FYI:  the principal effect of 6A would be to render EWI aliens 
ineligible for adjustment of status.  However, INS has determined that (now 
expired) INA 245(i) overrides 6A, and aliens who benefit from 
"grandfathering" and can still qualify to apply for 245(i) adjustment are 
not subject to 6A.)  The class code for this ineligibility is 6AW.  It is 
only available for INS use.

43.  INA 212(a)(6)(B) ("6B") relates to an alien who has failed to attend 
or refused to remain at a hearing to determine the alien's inadmissibility 
or deportability. This ground of inadmissibility renders the alien 
ineligible for a visa for five years after departure.  This section applies 
only to proceedings that were commenced by the filing of a notice to appear 
on or after April 1, 1997.  Because 6B applies only to cases where the 
proceeding was commenced by a notice to appear filed on or after 4/1/97, 
and because the filing of a notice to appear necessarily predates the 
hearing itself, it follows that, for 6B to apply, the hearing itself must 
also have occurred on or after 4/1/97.  If proceedings commenced against 
the alien prior to 4/1/97, then 6B would not apply, even if the hearing 
itself occurred on or after that date.  The class code for this 
ineligibility is 6BR.

44.  If posts have any questions about the interpretation of any of the 
provisions discussed above, the department (CA/VO/L/A) will be happy to 
assist.

Addendum

Summary Table of Provisions

Note:  when referring to INA sections, letters in lower Case are indicated 
by double parentheses -- e.g., INA 212(a)(9)(A)(i) appears as 
212((a))(9)(A)((i)).

INA Section
(Class Code)		Applies To:

222((g))			NIV overstayers, whether
(222)				overstay occurred before,
on, or after 4/1/97

212((a))(6)(A)		not applicable to visa applications
(6AW)				

212((a))(6)(B)		failure to attend immigration
(6BR)				hearing which commenced with a
notice to appear filed on/after 4/1/97

212((a))(9)(A)((i))		arriving aliens previously
(91A or 91B or 91C)	ordered removed under INA
235(b)(1) or INA 240
(removal order issued on/after 4/1/97)

212((a))(9)(A)((ii))		other aliens previously ordered
(92A or 92B or 92C)	removed, whether the order was
issued before, on, or after 4/1/97

212((a))(9)(B)((i))(I)		aliens who voluntarily departed
(9B1)				prior to commencement of removal
proceedings and after an
unlawful presence of more than
180 days but less than one year,
provided the unlawful presence
occurred on/after 4/1/97

212((a))(9)(B)((i))(II)		aliens who departed after an
(9B2)				unlawful presence of one year or
more, provided the unlawful
presence occurred on/after 4/1/97

212((a))(9)(C)((i))(I)		aliens who were unlawfully
(9CP)				present more than one year in
the aggregate, provided the
unlawful presence occurred
on/after 4/1/97, and who
subsequently reentered/
attempted to reenter without
inspection on/after 4/2/98.

212((a))(9)(C)((i))(II)	aliens who were previously
(9CP)				ordered removed, whether the
order was issued before, on, or
after 4/1/97, and who
subsequently reentered/
attempted to reenter without
inspection on/after 4/1/97


Examples

The following examples illustrate some of the above rules. Where 
appropriate, we have also indicated the outcome under INA 222(g) 
("222(g)"), for comparison purposes.  (If a detailed explanation of the 
outcome under 222(g) is needed, please refer to Ref D.)  Unless otherwise 
stated, the examples assume an alien over 18 years of age and a time frame 
on/after April 1, 1997.

212(a)(9)(A)

A.  Arriving alien denied entry and found inadmissible and removed 
(excluded) by IJ on April 1, 1997:  subject to five-year bar of 9A1.

B.  Same facts as A, but order of exclusion issued on March 30, 1997:  
subject to ten-year bar of 9A2.

C.  Alien apprehended in U.S. and deported in 1990 (previously ineligible 
until 1995 under old 212(a)(6)(B)): subject to ten-year bar of 9A2, 
ineligible (again) until 2000.  (Note:  INS may promulgate regulations 
which would change the result in this kind of case.  Posts will be advised 
of any changes.)  This alien may seek consent to reapply for admission and 
will receive sympathetic consideration according to INS instructions.

D.  EWI alien granted voluntary departure by an IJ with alternate order of 
removal, departs within V/D period:  not subject to 9A.

E.  Alien ordered removed in 1990 but departs on own after order issued:  
subject to ten-year bar of 9A2.

F.  Arriving alien ordered removed by an INS officer under the new summary 
removal provision of INA 235(b)(1): subject to five-year bar of 9A1.

212(a)(9)(B)

A.  Presence prior to 4/1/97:

(I)  Alien entered without inspection ten years ago, departed voluntarily 
on 9/1/97:  five months of unlawful presence accrued (4/1/97 to 9/1/97), 
not subject to 9B because unlawful presence did not exceed 180 days; not 
subject to 222(g) because alien did not enter on an NIV. 

(II)  Alien entered without inspection ten years ago, departed voluntarily 
on 12/1/97 (prior to commencement of removal proceedings):  eight months of 
unlawful presence accrued (4/1/97 to 12/1/97),  subject to three-year bar 
of 9B1; not subject to 222(g).

(III)  alien entered without inspection ten years ago, immigration 
proceedings commenced 11/1/97, alien granted voluntary departure (V/D) 
12/1/97 and departed after accruing eight months of unlawful presence 
(4/1/97 to 12/1/97):  not subject to 9B (three-year bar does not apply 
because alien did not depart prior to commencement of removal proceedings); 
not subject to 222(g).

(IV)  alien entered without inspection ten years ago, departed 5/1/98:  
thirteen months of unlawful presence accrued (4/1/97 to 5/1/98):  subject 
to ten-year bar of 9B2; not subject to 222(g).

B.  Other Special Rules:

(I)  Alien entered without inspection ten years ago at age of seven, 
applies for visa today at age of seventeen:  no time in unlawful presence 
is taken into account because unlawful presence was prior to age 18:  not 
subject to 9B; not subject to 222(g) because prior entry was not on an NIV.

(II)  Alien entered without inspection ten years ago, remained continuously 
in U.S. and applies for adjustment under 245(i):  not subject to 9B because 
no departure from U.S.

(III)  Alien entered on B visa, admitted for six months, overstayed an 
extra five months, departed, returned and is granted another six months, 
overstays an additional four months (total time in U.S. 21 months, nine of 
which was as an overstay):  not subject to 9B because no single period of 
unlawful presence exceeded 180 days and periods can't be aggregated; 
subject to 222(g), however.

C.  Alien Who Overstays Date on I-94: 

(I)  Alien remains beyond date on I-94, is not placed in removal 
proceedings, departs voluntarily on his own more than 180 days and less 
than one year after date on I-94:  subject to three-year bar of 9B1, and to 
222(g).

(II)  Same facts as (I), but alien remains one year or more after date on 
I-94:  subject to ten-year bar of 9B2, and to 222(g).

(III)  Alien remains more than 180 days and less than one year after date 
on I-94, is not placed in removal proceedings, is granted voluntary 
departure by INS within the same period, and departs within V/D period:  
subject to three-year bar of 9B1, and to 222(g).

(IV)  Alien remains more than 180 days and less than one year after date on 
I-94, is placed in proceedings, is found removable as an overstay and 
granted voluntary departure by the IJ within the same period, and departs 
within V/D period:  not subject to 9B (three-year bar does not apply 
because alien did not depart prior to commencement of removal proceedings, 
and ten-year bar does not apply because alien did not accrue at least one 
year's unlawful presence). Alien is nevertheless subject to 222(g) because 
of the IJ's finding that he remained longer than authorized.

(V)  Alien remains one year or more after date on I-94, is subsequently 
placed in proceedings and is granted voluntary departure by the IJ, and 
departs within V/D period: subject to ten-year bar of 9B2, and to 222(g).

D.  Alien Admitted for D/S Who Violates Status:

(I)  Alien admitted on a student visa for duration of status, drops out of 
school day after arrival, takes up unauthorized employment, departs ten 
years later without ever having been found to have violated status by INS 
or an IJ:  no unlawful presence accrued, not subject to 9B.  In addition, 
222(g) does not apply because there was no formal finding of a status 
violation by INS or an IJ.  (see Ref D Septel on 222(g)).

(II)  Alien admitted for duration of status, violates status, e.g., by 
working without authorization, is out of status for any period of time, 
applies for a change of status (COS), which INS denies on the ground that 
alien was out of status. Unlawful presence begins to accrue on the date of 
the denial.  The alien departs voluntarily on his own prior to commencement 
of removal proceedings 180 days or less after INS decision:  not subject to 
9B because alien did not accrue more than 180 days of unlawful presence 
after INS decision; however, alien is subject to 222(g).

(III)  Same facts as (II) but alien requests voluntary departure, which INS 
grants 180 days or less after the denial of COS, and the alien departs 
within the time granted:  not subject to 9B because alien did not accrue 
more than 180 days of unlawful presence; however, alien is subject to 
222(g).

(IV)  Same facts as (II), but INS grants V/D more than 180 days but less 
than one year after the denial of COS, and the alien departs within the 
time granted:  subject to three-year bar of 9B1, and to 222(g).

(V)  Same facts as (II), but removal proceedings are instituted after INS's 
denial of COS, IJ agrees that alien violated status and grants V/D (with 
alternate order of removal) 180 days or less after the denial of COS:  not 
subject to 9B (period between INS decision to deny COS and IJ's grant of 
V/D counts as unlawful presence, but period was less than 181 days, and 
grant of V/D is considered by INS to be a period of stay authorized by the 
Attorney General for 9B purposes); alien is, however, subject to 222(g).

(VI)  Same facts as (V), but IJ issues V/D order more than 180 days but 
less than one year after INS decision:  not subject to 9B (although more 
than 180 days of unlawful presence accrued, three-year bar does not apply 
because alien did not depart before commencement of removal proceedings and 
ten-year bar does not apply because alien did not accrue at least one year 
of unlawful presence).  222(g) applies because INS and IJ found status 
violation.

(VII)  Same facts as (V), but IJ issues V/D order one year or more after 
INS decision:  subject to ten-year bar of 9B2 because one-year-plus period 
between INS denial of COS and IJ grant of V/D counted as unlawful presence.  
222(g) also applies.

(VIII)  Alien admitted on student visa for duration of status, drops out of 
school the next day, takes up unauthorized employment, stays ten years, is 
put in deportation proceedings, is found to have violated status but is 
simultaneously granted voluntary departure, and departs before date 
specified in V/D order:  no unlawful presence accrued, not subject to 9B 
because "unlawful presence" clock did not start to run until IJ finding and 
has immediately suspended by V/D order.  222(g) applies, however.

(IX)  Same facts as (VIII), except alien does not depart until seven months 
after the date specified in V/D order: not subject to 9B (unlawful presence 
of seven months accrued, but three-year bar inapplicable because departure 
occurred after commencement of removal proceedings).  222(g) applies, 
however.

E.  Alien Admitted Until Date Certain, Violates Status:

(I)  Alien enters on a B visa, admitted for six months, takes up 
unauthorized employment day of arrival, remains in U.S. five months after 
date on I-94, and departs after having worked illegally in U.S. for eleven 
months:  five months of unlawful presence accrued, not subject to 9B, but 
subject to 222(g).

(II)  Alien enters on H-1, admitted for two years, quits job day of arrival 
and works without authorization for new employer(s) for a year and a half, 
applies for extension of stay, INS finds status violation (before I-94 has 
expired) and denies application, alien departs on his own one month after 
INS finding:  one month of unlawful presence accrued (measured from date of 
INS finding), not subject to 9B, but subject to 222(g).

(III)  same facts as (II), but INS finding of status violation is not made 
until one year after I-94 has expired and alien departs one month later:  
unlawful presence of thirteen months accrued (measured from expiration of 
I-94), subject to ten-year bar of 9B2, and to 222(g).

(IV)  Alien admitted with a date-certain I-94, violates status, e.g., by 
working without authorization, and, prior to the expiration of I-94, 
applies for an extension of stay or a change of status, which INS denies 
because of status violation.  The period of authorized stay ends and 
unlawful presence begins to accrue on date I-94 expires or date of INS 
denial, whichever comes first.  (Alien is not covered by tolling provisions 
in 212(a)(9)(B)(iv) because of unauthorized employment.)  Alien requests 
voluntary departure, which INS grants 180 days or less after unlawful 
presence begins to accrue, and the alien departs within the time granted:  
not subject to 9B, but subject to 222(g).

(V)  Same facts as (IV), but INS grants V/D more than 180 days but less 
than one year after unlawful presence begins to accrue, and the alien 
departs within the time granted: subject to three-year bar of 9B, and to 
222(g).

(VI)  Same facts as (IV), but INS grants V/D one year or more after 
unlawful presence begins to accrue:  subject to ten-year bar of 9B2, and to 
222(g).

(VII)  Same facts as (IV), but removal proceedings are instituted and the 
IJ agrees with INS finding that alien violated status but grants V/D (with 
alternate order of removal) more than 180 days but less than one year after 
unlawful presence begins to accrue:  not subject to 9B (no three-year bar 
because departure occurred after removal proceedings had begun), but 222(g) 
applies because both INS and the IJ found a status violation.

(VIII)  Same facts as (VII), but IJ grants V/D one year or more after 
unlawful presence begins to accrue:  subject to ten-year bar of 9B2, and to 
222(g).

(IX)  Alien admitted with a date-certain I-94 and, prior to expiration of 
the authorized time, is placed in removal proceedings for violating status, 
e.g., by working without authorization, IJ determines status violation 
occurred and grants V/D (with an alternate order of removal) prior to or 
within 180 days after expiration of I-94, alien departs within V/D period:  
not subject to 9B because alien avoided accrual of unlawful presence by 
departing within voluntary departure period; however, 222(g) applies 
because IJ found a status violation.

(X)  Same facts as (IX), but IJ grants V/D between 180 days  and one year 
after expiration of I-94:  not subject to 9B (three-year bar does not apply 
because departure has after commencement of removal proceedings).  However, 
222(g) applies because IJ found a status violation.

(XI)  Same facts as (IX), but IJ grants V/D one year or more after 
expiration of I-94:  subject to ten-year bar of 9B2, and to 222(g).

F.  Unlawfully Present Aliens Who Are Removed:

(I)  Alien admitted on B visa until 4/1/97, overstays and is subsequently 
removed on 12/1/97:  unlawful presence of eight months accrued but alien 
not subject to three-year bar of 9B1 because departure was not voluntary 
and occurred after commencement of removal proceedings (but alien is 
subject to 222(g) and to the ten-year bar of 9A2 for aliens previously 
removed).

(II)  Same as (I), except alien is not removed until 4/1/98:  unlawful 
presence of one year accrued, alien subject to ten-year bar of 9B2 (even 
though departure was involuntary).  222(g) and ten-year bar of 9A2 also 
apply.

212(a)(9)(C)

A.  Alien enters on B visa, overstays by five months (beginning on or after 
4/1/97), departs, returns and overstays by eight months, departs and 
attempts to reenter without inspection:  total unlawful presence of 
thirteen months prior to attempted illegal reentry, alien subject to 
permanent bar of (9)(C)(i)(I) (this section allows aggregation of periods 
of unlawful presence).  (Although bar is permanent, alien can request 
consent to reapply after ten years outside the U.S.)  Also subject to 
222(g).

B.  Same facts as A, but overstays occurred prior to 4/1/97:  not subject 
to (9)(C)(i)(I), but subject to 222(g).

C.  Alien enters without inspection in 1990, placed in removal proceedings, 
departs U.S. voluntarily March 1, 1998, prior to order or removal, 
unsuccessfully attempts to reenter illegally the following day:  not 
subject to (9)(C)(i)(I) because accrued only eleven months of unlawful 
presence (4/1/97 to 3/1/98).  (Also not subject to (9)(C)(i)(II) because 
departed voluntarily and not pursuant to order of removal.)  (Also not 
subject to 9B because 3/1/98 departure was after commencement of removal 
proceedings).  (Also not subject to 222(g) because alien entered without 
inspection, not on an NIV.)

D.  EWI alien ordered removed prior to 4/1/97, attempts to reenter without 
inspection on 4/1/97:  subject to permanent bar of (9)(C)(i)(II); not 
subject to 222(g) because alien entered without inspection, not on an NIV.

E.  Same facts as D, but attempted entry without inspection occurs on 
3/31/97:  not subject to (9)(C)(i)(II); not subject to 222(g) because no 
prior entry on NIV.

Madeleine Albright