MEMORANDUM FOR:
REGIONAL DIRECTORS
DEPUTY EXECUTIVE ASSOCIATE COMMISSIONER,
IMMIGRATION SERVICES DIVISION
ACTING DIRECTO
OFFICE OF INTERNATIONAL AFFAIRS
FROM:
Michael A. Pearson
Executive Associate Commissioner
Office of Field Operations
SUBJECT:
Period of stay authorized by the Attorney
General after 120-day tolling period for purposes of section
212(a)(9)(B) of the Immigration and Nationality Act (the Act).
(AD 00-07)
This
memorandum addresses issues relating to the 3- and 10-year
bars to admission under section 212(a)(9)(B)(i)(I) and (II)
of the Act and the decision to designate as a period of stay
authorized by the Attorney General the entire period during
which a timely filed, non-frivolous application for extension
of stay (E/S) or change of status (C/S) is pending with the
Service, provided the alien has not engaged in any unauthorized
employment. This period of stay authorized by the Attorney
General covers the 120-day tolling period described in section
212(a)(9)(B)(iv) of the Act, and continues until the date
the Service issues a decision.
By
way of background, section 212(a)(9)(B)(ii) of the Act states
that an alien who is present in the United States without
admission or parole, or who remains in the United States beyond
the period of stay authorized by the Attorney General, accrues
unlawful presence towards the 3- and 10-year bars under section
212(a)(9)(B)(i)(I) and (II) of the Act. Section 212(a)(9)(B)(iv)
of the Act is a tolling provision that covers certain nonimmigrants.
If an alien has timely filed a nonfrivolous application for
E/S or C/S, the first 120 days of unlawful presence are not
counted towards the 3-year bar under section 212(a)(9)(B)(i)
of the Act. Section 212(a)(9)(B)(iv) of the Act further states
that the alien must have been lawfully admitted or paroled
into the United States, and must not have been employed without
authorization before the E/S or C/S application was filed
or while it was pending.
Although legislative history is silent regarding
the intent of the 120-day tolling period, an inference may
be drawn that Congress expected the Service to adjudicate
the petitions within such a timeframe. However, due to unprecedented
workload, in many instances the Service has been unable to
adjudicate a timely filed application for E/S or C/S within
the 120-day period envisioned by Congress.
Under current
Service policy, if a decision is not rendered within the tolling
period, aliens admitted to the United States until a specific
date begin accruing unlawful presence on the 121" day after
the expiration of their Form I-94. Because of the current
backlogs, which in some cases "tend beyond six months, aliens
who remain in the United States while the C/S or E/S is pending
may incur a 3-year or even a 10-year bar to admission if the
application is ultimately denied.
Therefore, in
order to alleviate problems aliens may encounter concerning
unlawful presence through no fault of their own, the Service
has determined that nonimmigrants who were admitted until
a specific date and who apply for C/S or E/S and whose applications
have been pending beyond the 120-day tolling period should
be considered to be in a period of stay authorized by the
Attorney General, if certain requirements are met. Because
these requirements are the same as those for tolling under
section 212(a)(9)(B)(iv) of the Act, the Service has further
determined that the period of stay authorized by the Attorney
General covers the E/S or C/S application for the entire period
that it is pending.
As
a practical matter, we note that this policy applies only
to those nonimmigrants who were admitted until a specific
date and whose I-94 has expired while the E/S or C/S application
is pending. This is because nonimmigrants admittedfor duration
of status (D/S) do not begin accruing unlawful presence until
a status violation is found. Refer to the Service's memorandum
dated September 19, 1997, 96 Act #058, for a discussion of
the Service's policy on unlawful presence as it relates to
nomimmigrants admitted D/S.
This memorandum
is being issued simultaneously with a separate memorandum,
HQADN 70/12-P, amending the Service's 1/14/99 guidance on
section 222(g), which is found in Chapter 15 of the Inspector's
Field Manual (IFM). These policies and procedures are effective
immediately and will be included in the AFM and in the IFM,
respectively, in the next release of INSERTS.
A new Chapter 30.1(d) is added in the AFM
to read as follows:
(d) Unlawful Presence under Section
212(a)(9)(B) of the Act. (1) The 3- and 10-year
bars to admission under section 212(a)(9)B)(i)(I) and (II)
of the Act do not apply to:
- Applicants for adjustment of status under
section 202(b) of NACARA
- Applicants for adjustment of status under
- of HRIFA; and
- Registry applicants under section 249 of
the Act.
(2) Counting of Unlawful Presence for
Nonimmigrants. An alien who remains in the United States
beyond the period of stay authorized by the Attorney General
is unlawfully present and becomes subject to the 3- or 10-year
bars to admission under section 212(a)(9)(B)(i)(I) and (II)
of the Act. Under current Service policy, unlawful presence
is counted in the following manner for nonimmigrants.
(A)
Nonimmigrants Admitted until a Specific Date.
Nonimmigrants admitted until a specific date begin accruing
unlawful presence on the date the period of admission authorized
by the Service expires, as noted on the arrival document issued
at the port-of-entry.
(B)
Nonimmigrants Admitted Duration of Status (D/S).
Nonimmignants admitted to the United States for D/S begin
accruing unlawful presence on the date the Service finds a
status violation while adjudicating a request for another
immigration benefit, or on the date an immigration judge finds
a status violation in the course of proceedings. If, however,
the immigration judge concurrently issues voluntary departure
and the alien complies with the order by making a timely departure,
no unlawful presence accrues. See sections (d)(2) and (d)(5)
of this chapter regarding voluntary departure as a period
of stay authorized by the Attorney General.
(3)
Period of Stay Authorized by the Attorney General. The
Service has also designated the following as periods of stay
authorized by the Attorney General:
- Grants
of withholding or deferral of removal under the United Nations
Convention Against Torture;
- Legalization
and special agricultural worker applications for lawful
temporary residence which are pending through an administrative
appeal;
- Grants
of withholding or suspension of deportation, or cancellation
of removal;
- Applications
for temporary and permanent residence by Cuban-Haitian entrants
under section 202(b) of Pub. L. 99-603 through administrative
appeal;
- Grants
of Temporary Protected Status and Deferred Enforced Departure;
- Properly
filed, affirmative applications for adjustment of status
under section 245 of the Act (including section 245(i)), and properly filed, affirmative registry
applications under section 249 of the Act, The period of
stay authorized by the Attorney General continues if the
application is denied and renewed in proceedings, through
review by the Board of Immigration Appeals (BIA). The alien
must, however, be eligible to renew the denied application
in proceedings and have a legal basis for renewing that
application; and
- Certain
pending applications for extension of stay or change of
status. See sections (d)(4) and (d)(5) of this chapter.
(4)
Requirements for Period of Stay Authorized by the Attorney
General with Respect to Pending Change of Status and Extension
Applications.
(A) The application
for change of status or for extension of stay was filed timely.
To be considered timely, the application must have been filed
before the previously authorized stay expired, as provided
under 8 CFR 214.1 (c)(4) and 8 CFR 248.1 (b).
(B)
The alien did not work without authorization before the application
for change of status or extension of stay was filed or while
it was pending; and
(C)
The change of status or extension application has been pending
with the Service for more than 120 days after the date the
I-94 expired.
(5)
Effect of Decision on Unlawful Presence and Tolling.
(A)
Approved Applications. If the Service approves
an E/S or C/S application, the alien will be granted a new
period of stay authorized by the Attorney General, retroactive
to the date the previously authorized stay expired, as applicable
to the nonimmigrant classification under which the alien was
admitted pursuant to 8 CFR 214.2. No unlawful presence accrues.
This applies to aliens admitted until a specific date and
aliens admitted D/S.
(B)
Denied applications. (i) Denial of Timely
Filed Applications and Frivolous Applications; Unauthorized
Employment. If the timely filed C/S or E/S application
is denied because it was frivolous or because the alien engaged
in unauthorized employment, any and all time after the Form
I-94 expiration date will be considered unlawful presence,
if the alien was admitted until a specific date. If, however,
the alien was admitted D/S, unlawful presence begins accruing
on the date of the Service's decision.
(ii)
Denial of Untimely Applications. If the application
was untimely and was denied, unlawful presence begins accruing
on the date the I-94 expired, regardless of the reason for
denial. For aliens admitted D/S, unlawful presence begins
accruing on the date of denial.
(6)
Voluntary Departure as a Period of Stay Authorized by the
Attorney General. The Service has designated voluntary
departure as a period of stay authorized by the Attorney General.
However, any unlawful presence that accrued before the date
the voluntary departure was actually granted is not eliminated.
And, if the alien does not make a timely departure, the counting
of unlawful presence resumes. Moreover, the alien becomes
subject to civil penalties and is ineligible for any further
voluntary departure or other forms of relief, such as adjustment
of status, registry, and cancellation of removal.
(7)
Effect of Departure.
(A)
Applicants for Nonimmigrant Visas. Date certain
nonimmigrants; who file an application for change of status
or extension of stay who depart the United States while the
application is pending and subsequently apply for another
nonimmigrant visa must establish, to the satisfaction of the
consular officer, that the application was timely filed and
that it was not frivolous. The requirement that the application
was timely may be established through the submission of evidence
of the date the previously authorized stay expired, together
with a copy of a dated filing receipt, a canceled check payable
to the Service for the E/S or C/S application, or other credible
evidence of a timely filing. To be considered non-frivolous,
the application must have an arguable basis in law and fact
and must not have been filed for an improper purpose. 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 E/S or C/S application, the consular officer
may presume that the E/S or C/S application was not frivolous.
The question then turns to whether the alien engaged in unauthorized
employment before the E/S or C/S application was filed or
while it was pending. Consular officers will determine this
through the routine course of questioning. Consular officers
may also review and consider evidence of an alternate means
of support during the time in which the alien was not authorized
to work. If the consular officer determines that the application
was timely filed, non-frivolous, and that the alien did not
engage in unauthorized employment, the alien is not subject
to the 3- or 10-year bars to admission under section 212(a)(9)(B)(i)
of the Act. See Chapter 15 of the IFM for a discussion
of the effect of the alien's departure on section 222(g).
D/S nonimmigrants who depart the United States while an application
for change of status or extension of stay is pending generally
do not trigger the 3-and 10-year bars under section 212(a)(9)(B)(i)
of the Act, unless a formal finding of a status violation
has been made, and the alien has not been granted any other
period of stay authorized by the Attorney General, such as
voluntary departure.
(B)
Applicants for Admission at a Port of Entry (POE). When
a date certain nonimmigrant files an application for change
of status or extension of stay and departs the United States
while the application is pending, Service officers at POEs
should use the same procedures followed by consular officers
to determine whether the application was timely and non-frivolous,
and whether the alien engaged in unauthorized employment.
If the extension application was timely and non-frivolous
and the alien did not engage in unauthorized employment, the
alien is not subject to the 3- or 10-year bar to admission.
[See Inspectors Field Manual, Chapter 15 for the applicability
to section 222(g).]
If
Service Officers have any questions regarding this policy
decision, contact Sophia Cox in HQADN at 202-514-4754.
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