April 4, 1998 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) (6AW) 212((a))(6)(B) (6BR) not applicable to visa applications failure to attend immigration 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) (9B1) 212((a))(9)(B)((i))(II) (9B2) 212((a))(9)(C)((i))(I) (9CP) 212((a))(9)(C)((i))(II) (9CP) aliens who voluntarily departed 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 aliens who departed after an unlawful presence of one year or more, provided the unlawful presence occurred on/after 4/1/97 aliens who were unlawfully 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. aliens who were previously 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 threeyear 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 tenyear 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