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Department
of State Cable on Unlawful Presence May 30, 2000 The US Department of State has advised its consular posts of the Immigration & Naturalization Service position that unlawful presence does not accrue during the pendency of change of status or extension of status applications, provided certain conditions are met. VISAS - INFORM CONSULS E.O. 12958: N/A TAGS: CVIS SUBJECT: INA 212(A)(9)(B) AND APPLICATIONS TO CHANGE NIV STATUS OR EXTEND NIV STAY REF: A) 98 STATE 60539 B) 99 STATE 105097 C) 98 STATE 136516 1. SUMMARY. INS HAS ISSUED REVISED GUIDANCE ON THE APPLICABILITY OF 212(A)(9)(B) ("9B:) TO ALIENS WHO HAVE APPLIED FOR A CHANGE OF NIV STATUS (COS) OR EXTENSION OF NIV STAY (EOS) AND WHO REMAIN IN THE U.S. AFTER EXPIRATION OF THEIR I-94 WHILE AWAITING A DECISION ON THEIR APPLICATION. SUCH ALIENS WILL NOT ACCRUE ANY UNLAWFUL PRESENCE DURING THE PENDENCY OF THE COS/EOS APPLICATION, AS LONG AS THE APPLICATION WAS TIMELY FILED AND NONFRIVOLOUS AND THE ALIEN DID NOT TAKE UP UNAUTHORIZED EMPLOYMENT PRIOR TO OR DURING THE PENDENCY OF THE APPLICATION. ALIENS WHO MEET THESE CRITERIA ARE CONSIDERED TO BE IN A PERIOD OF AUTHORIZED STAY DURING THE ENTIRE PERIOD THAT THE COS/EOS APPLICATION IS PENDING, AND THEREFORE THEY WOULD NOT BE SUBJECT TO EITHER INA 212(A)(9)(B) OR 222(G). (NOTE: THESE NEW RULES APPLY ONLY TO CHANGES OF NIV STATUS AND EXTENSIONS OF NIV STAY. FOR CASES INVOLVING ADJUSTMENTS OF STATUS TO PERMANENT RESIDENCE, PLEASE REFER TO THE SEPARATE ALDAC ON THAT SUBJECT, WHICH IS BEING SENT OUT SIMULTANEOUSLY WITH THIS ONE.) END SUMMARY ---------------------------------------- TOLLING PROVISION OF INA 212(A)(9)(B)(IV) ---------------------------------------- 2. ALIENS WHO APPLY FOR A CHANGE OF STATUS (COS) OR EXTENSION OF STAY (EOS) OFTEN DO NOT RECEIVE A DECISION FROM INS UNTIL AFTER THEIR INITIAL PERIOD OF STAY HAS ALREADY EXPIRED. AS SUCH, THEY RISK ACCRUING UNLAWFUL PRESENCE AND THEREBY FALLING WITHIN THE INELIGIBILITY PROVISIONS OF INA 212(A)(9)(B). 3. RECOGNIZING THIS FACT, CONGRESS ENACTED INA SECTION 212(A)(9)(B)(IV). AS EXPLAINED IN REF A (PARA 26), THIS PROVISION "TOLLS" (SUSPENDS) THE ACCRUAL OF UNLAWFUL PRESENCE FOR UP TO 120 DAYS FOR CERTAIN ALIENS WITH PENDING COS OR EOS APPLICATIONS, PROVIDED: -- THE ALIEN HAD BEEN LAWFULLY ADMITTED (OR PAROLED) INTO THE U.S., -- THE APPLICATION WAS TIMELY FILED AND NONFRIVOLOUS, AND -- THE ALIEN DID NOT ENGAGE IN UNAUTHORIZED EMPLOYMENT PRIOR TO OR DURING THE PENDENCY OF THE APPLICATION. ------------------------------------- NEW INTERPRETATION OF AUTHORIZED STAY ------------------------------------- 4. RECOGNIZING THAT APPLICATIONS TO CHANGE OR EXTEND NIV STATUS MAY TAKE LONGER THAN 120 DAYS TO ADJUDICATE, INS HAS DECIDED TO DESIGNATE THE ENTIRE PERIOD OF THE PENDENCY OF AN APPLICATION TO CHANGE OR EXTEND NIV STATUS AS A "PERIOD OF STAY AUTHORIZED BY THE ATTORNEY GENERAL," WITHIN THE MEANING OF BOTH INA 212(A)(9)(B) AND 222(G), BUT ONLY IF THE CRITERIA SET FORTH IN THE TOLLING PROVISION OF INA 212(A)(9)(B)(IV) HAVE BEEN MET. THUS, AN ALIEN WHO HAS FILED A COS OR EOS APPLICATION AND WHO HAS REMAINED IN THE U.S. BEYOND THE DATE ON HIS/HER I-94 WILL ACCRUE NO UNLAWFUL PRESENCE FOR PURPOSES OF 212(A)(9)(B), AND ALSO WILL NOT BE SUBJECT TO 222(G), AS LONG AS: -- THE APPLICATION WAS NONFRIVOLOUS -- THE APPLICATION WAS TIMELY FILED, AND -- THE ALIEN DID NOT ENGAGE IN UNAUTHORIZED EMPLOYMENT PRIOR TO OR DURING THE PENDENCY OF THE COS/EOS APPLICATION. (5. NOTE: AS A PRACTICAL MATTER, THIS NEW POLICY ONLY AFFECTS ALIENS WHO WERE ADMITTED UNTIL A SPECIFIC DATE, WHO DEPARTED THE U.S. AFTER THAT DATE, AND WHOSE COS OR EOS APPLICATION WAS EITHER DENIED OR STILL PENDING WHEN THE ALIEN DEPARTED THE U.S. EVEN UNDER PRE-EXISTING INTERPRETATIONS OF 9B, ALIENS WHOSE COS OR EOS APPLICATIONS WERE APPROVED DO NOT FACE 9B CONCERNS BECAUSE COS AND EOS APPROVALS ARE RETROACTIVE TO THE DATE THE PREVIOUS STATUS EXPIRED AND THEREFORE THE ALIEN ACCRUES NO UNLAWFUL PRESENCE IN SUCH CASES. THE NEW RULE WOULD ALSO HAVE NO PRACTICAL EFFECT IF THE COS OR EOS APPLICATION WAS DENIED OR ABANDONED BUT THE ALIEN HAD BEEN ADMITTED FOR DURATION OF STATUS (D/S), BECAUSE, AS EXPLAINED IN REF A, SUCH ALIENS DO NOT BEGIN ACCRUING UNLAWFUL PRESENCE UNLESS AND UNTIL EITHER INS OR AN IMMIGRATION JUDGE FINDS A STATUS VIOLATION.) -------------- "NONFRIVOLOUS" -------------- 6. TO BE CONSIDERED NONFRIVOLOUS, THE APPLICATION MUST HAVE AN ARGUABLE BASIS IN LAW AND FACT AND MUST NOT HAVE BEEN FILED FOR AN IMPROPER PURPOSE (E.G., AS A GROUNDLESS EXCUSE FOR THE APPLICANT TO REMAIN IN THE U.S. TO ENGAGE IN ACTIVITIES INCOMPATIBLE WITH HIS/HER STATUS). TO FIND AN APPLICATION NONFRIVOLOUS, IT IS NOT NECESSARY TO DETERMINE THAT THE INS WOULD HAVE ULTIMATELY RULED IN FAVOR OF THE ALIEN. 7. IN PRACTICE, THE ISSUE OF WHETHER A PRIOR EOS OR COS APPLICATION WAS FRIVOLOUS SHOULD NOT PRESENT A PROBLEM IN MOST CASES. CONSULAR OFFICERS ARE MOST LIKELY TO ENCOUNTER THIS ISSUE IN CONNECTION WITH VISA APPLICATIONS FROM ALIENS WHO FOUND SOME NEED TO TRAVEL ABROAD WHILE THEIR COS OR EOS APPLICATION WAS STILL PENDING. UPON RETURN TO THE U.S., THE ALIEN IN MOST CASES WILL BE APPLYING FOR A VISA IN THE SAME CATEGORY AS WAS SOUGHT IN THE NOW ABANDONED EOS/COS APPLICATION. IF THE CONSULAR OFFICER FINDS THAT THE ALIEN QUALIFIES FOR A VISA IN THE SAME CATEGORY AS THE VISA CLASSIFICATION THAT WAS SOUGHT IN THE ABANDONED EOS OR COS APPLICATION, THEN THE CONSULAR OFFICER MAY PRESUME THAT THE EOS OR COS APPLICATION WAS NOT FRIVOLOUS. IF, HOWEVER, THE CONSULAR OFFICER FINDS THAT THE ALIEN IS NOT QUALIFIED FOR THAT PARTICULAR NIV CATEGORY, THEN THE ALIEN WOULD BE INELIGIBLE FOR THE VISA ANYWAY, AND THERE WOULD THEREFORE BE NO NEED TO REACH THE ISSUE OF WHETHER THE PRIOR EOS/COS APPLICATION WAS OR WAS NOT FRIVOLOUS. 8. THE ONLY TIME THIS PRACTICAL APPROACH WILL NOT WORK IS IN THOSE RARE CASES WHEN THE ALIEN IS APPLYING FOR A VISA IN A CATEGORY DIFFERENT FROM THE CATEGORY SOUGHT IN THE PRIOR EOS OR COS APPLICATION. IN SUCH CASES, CONSULAR OFFICERS WILL SIMPLY HAVE TO DO THEIR BEST TO EVALUATE THE MERITS OF THE PRIOR COS/EOS APPLICATION, REFERRING TO THE GENERAL GUIDANCE IN PARA 6 ABOVE AND RELYING ON THEIR NECESSARILY WELL-DEVELOPED KNOWLEDGE OF THE ELIGIBILITY CRITERIA FOR THE VARIOUS NIV CATEGORIES. CONSULAR OFFICERS SHOULD FEEL FREE TO SEEK ASSISTANCE FROM VO/L/A IF NECESSARY. _____________ TIMELY FILING _____________ 9. A TIMELY FILED APPLICATION IS ONE THAT WAS FILED PRIOR TO THE EXPIRATION OF THE PREVIOUS PERIOD OF AUTHORIZED STAY. THUS, EVEN IF THE ALIEN WAITS UNTIL THE LAST DAY OF HIS/HER PERIOD OF AUTHORIZED STAY TO FILE FOR AN EXTENSION OR CHANGE OF STATUS, THE APPLICATION WILL BE CONSIDERED TIMELY. TIMELY FILING MAY BE ESTABLISHED THROUGH THE SUBMISSION OF EVIDENCE OF THE DATE ON WHICH THE PREVIOUSLY AUTHORIZED STAY EXPIRED (E.G., A COPY OF THE I-94), TOGETHER WITH A COPY OF A DATED COS/EOS APPLICATION FILING RECEIPT, OR A CANCELED CHECK PAYABLE TO THE SERVICE FOR THE EOS OR COS APPLICATION, OR OTHER CREDIBLE EVIDENCE OF A TIMELY FILING. _______________________ UNAUTHORIZED EMPLOYMENT _______________________ 10. CONSULAR OFFICERS SHOULD DETERMINE WHETHER AN ALIEN ENGAGED IN UNAUTHORIZED EMPLOYMENT THROUGH THEIR ROUTINE COURSE OF QUESTIONING. IF THE ALIEN WAS IN THE U.S. FOR AN EXTENDED PERIOD OF TIME IN A STATUS THAT WOULD NOT NORMALLY PERMIT EMPLOYMENT (E.G., AN ALIEN IN B STATUS AWAITING APPROVAL OF CHANGE OF STATUS TO A TEMPORARY WORKER CATEGORY), CONSULAR OFFICERS MAY REQUEST EVIDENCE OF THE MEANS OF SUPPORT RELIED ON BY THE ALIEN DURING THAT PERIOD. 11. IN DETERMINING WHETHER A PARTICULAR ALIEN ENGAGED IN UNAUTHORIZED EMPLOYMENT, POSTS SHOULD BE AWARE OF CERTAIN RULES RELATING TO APPLICATIONS TO EXTEND STAY OR CHANGE STATUS. IN PARTICULAR, UNDER 8 CFR 274A.12(B)(20), AN ALIEN IN AN NIV STATUS PERMITTING EMPLOYMENT (E.G., E, H, L, O, P, ETC.) WHO FILES A TIMELY APPLICATION FOR AN EXTENSION OF STAY IN THAT SAME CATEGORY MAY CONTINUE WORKING FOR THE SAME EMPLOYER FOR UP TO 240 DAYS AFTER/AFTER EXPIRATION OF THE I-94, UNLESS INS DENIES THE APPLICATION BEFORE THAT TIME. HOWEVER, AN ALIEN WHO APPLIES FOR A CHANGE/CHANGE OF NIV STATUS FROM A CATEGORY THAT DOES NOT ALLOW EMPLOYMENT (E.G., B CLASSIFICATION) TO A CATEGORY THAT DOES ALLOW EMPLOYMENT (E.G., E, H, L, O, P, ETC.) IS NOT AUTHORIZED TO BEGIN WORK UNDER THAT NEW CATEGORY UNTIL THE INS HAS ACTUALLY APPROVED THE CHANGE OF STATUS. IF THERE IS A QUESTION ABOUT WHETHER A PARTICULAR EMPLOYMENT WAS AUTHORIZED, POSTS MAY REFER TO INS REGULATIONS AT 8 CFR 274A.12 OR SEEK GUIDANCE THROUGH CA/VO/L/A. ________________ EFFECT ON 222(G) ________________ 12. THIS NEW INTERPRETATION REQUIRES A TECHNICAL MODIFICATION TO THE EXISTING GUIDANCE ON 222(G), ALTHOUGH THE PRACTICAL EFFECT OF THE CHANGE WILL NOT BE SIGNIFICANT. 13. REF B STATED THAT 222(G) WOULD APPLY TO ALIENS WHO REQUEST A COS OR EOS AND WHO REMAIN AFTER THE DATE ON THEIR I-94, IF THE COS/EOS APPLICATION IS DENIED OR IS STILL PENDING AT THE TIME OF THE ALIEN'S DEPARTURE. REF B FURTHER NOTED, HOWEVER, THAT DEPARTMENT HAD ANNOUNCED IN REF C A BLANKET EXTRAORDINARY CIRCUMSTANCES EXEMPTION FROM 222(G) IF THE COS/EOS APPLICATION WAS TIMELY FILED AND NONFRIVOLOUS AND THE ALIEN DID NOT WORK WITHOUT AUTHORIZATION. 14. THE CRITERIA THAT APPLIED TO THE BLANKET EXEMPTION ARE THE SAME CRITERIA AS THOSE USED IN 212(A)(9)(B)(IV) AND IN THE NEW RULE DESCRIBED ABOVE. THUS, WHEREAS BEFORE SUCH CASES WOULD HAVE BEEN SUBJECT TO 222(G) BUT WOULD HAVE BENEFITED FROM A BLANKET EXEMPTION, SUCH CASES ARE NOW DEEMED NO LONGER SUBJECT TO 222(G) TO BEGIN WITH. THE END RESULT IS THE SAME -- POST MAY ISSUE THE VISA. THE ONLY PRACTICAL DIFFERENCE IS THAT IT IS NO LONGER NECESSARY TO ANNOTATE THE VISA TO INDICATE THAT AN EXTRAORDINARY CIRCUMSTANCES EXEMPTION TO 222(G) APPLIES. __________________________________________________ A DIFFERENT RULE FOR APPLICATIONS TO ADJUST STATUS __________________________________________________ 15. ALL OF THE ABOVE RULES RELATE SOLELY TO APPLICATIONS TO EXTEND NIV STATUS OR TO CHANGE STATUS FROM ONE NIV CATEGORY TO ANOTHER. THE RULES APPLICABLE TO APPLICATIONS TO ADJUST/ADJUST STATUS UNDER INA 245 (I.E., TO MOVE FROM AN NIV CATEGORY OR SOME OTHER NON-RESIDENT STATUS INTO PERMANENT RESIDENCE STATUS) ARE DIFFERENT, AND ARE SET FORTH IN A SEPARATE ALDAC THAT DEPARTMENT IS SENDING OUT SIMULTANEOUSLY WITH THIS ONE. 16. AS EXPLAINED IN SEPTEL ALDAC, THE ENTIRE PERIOD OF THE PENDENCY OF A PROPERLY FILED APPLICATION TO ADJUST STATUS TO LPR IS DEEMED A PERIOD OF AUTHORIZED STAY, AS LONG AS THE APPLICATION WAS NOT FILED AFTER RECEIPT OF A NOTICE TO APPEAR FOR REMOVAL PROCEEDINGS. THE SPECIAL CRITERIA IN 212(A)(9)(B)(IV) FOR COS AND EOS APPLICATIONS DO NOT APPLY TO APPLICATIONS TO ADJUST STATUS TO PERMANENT RESIDENCE. FOR DETAILED RULES REGARDING APPLICATIONS TO ADJUST STATUS, PLEASE REFER TO THE SEPARATE ALDAC ON THAT SUBJECT. 17. IF POSTS HAVE ANY QUESTIONS REGARDING INTERPRETATION OF THIS ALDAC OR APPLICATION OF INA 212(A)(9)(B) IN A PARTICULAR CASE, PLEASE LET US KNOW BY CABLE OR E-MAIL AND SLUG CABLES FOR CA/VO/L/A. TALBOTT 5.30.2000 |
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