The following is the text of a December 17, 1997 State Department cable (no. 97-State-235245) sent to all diplomatic and consular posts:
Subject: P.L. 104-208 Update No. 34-
Ref: (A) State 62420, (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 inadmissable 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 had 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 EWIs, 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.
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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 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 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 101 (sic – This number should be “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 9B 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 authorized extensions or changes of status are not always complete or readily accessible.
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.