INS Changes its Policy on Visa Voidance Under INA 222(g) for Aliens Who Have Filed Timely Extension or Change of Status Applications

INS Changes its Policy on Visa Voidance Under INA 222(g) for Aliens Who Have Filed Timely Extension or Change of Status Applications

In a very welcome development, the INS has announced in a recent field memorandum that it has revised its policy with respect to the automatic voidance of nonimmigrant visas under section 222(g). This change in policy affects persons issued B, H, L and O visas as well as other nonimmigrant visas.

Section 222(g) provides that an alien who was admitted on a nonimmigrant visa and who remains in the United States beyond the authorized period of stay becomes subject to 222(g). When the alien is subject to section 222(g), his or her nonimmigrant visa becomes automatically void at the conclusion of the authorized stay. Aliens who remain in the United States beyond the authorized period of stay also accrue unlawful presence towards the three and ten year bars under Section 212(a) of the INA.

Previously, the INS had considered nonimmigrants who had filed timely extension of stay or change of status applications but had departed the United States after the expiration of their nonimmigrant periods of stay, but before the approval of their extension or change of status applications, to be subject to 222(g). This policy was particularly damaging to nonimmigrants in B status, given the lengthy processing time for B extension applications.

The INS, in cooperation with the Department of State ("DOS"), has revised its interpretation of "remain in the United States beyond the period of stay authorized by the Attorney General" for unlawful presence and the automatic voidance of nonimmigrant visas under section 222(g). The INS will now consider as a period of stay authorized by the Attorney General the entire period during which a timely filed and nonfrivolous extension or change of status application has been pending with the Service, provided the alien has not engaged in any unauthorized employment. This authorized period of stay will continue until the date the INS issues a decision approving or denying the application.

The practical effect of this new interpretation is that nonimmigrants who timely file extension of stay or change of status applications and subsequently depart the United States after their initial period of stay expires, but before the extension or change of status is granted, will no longer have their visas voided under Section 222(g).

All further developments with respect to Section 222(g) will be closely monitored by the Cooley Godward LLP Immigration Practice Group. I