Non-Immigrants Provided Blanket Extraordinary Circumstances Exemption to Apply for Visas After Expiration of Status Under Certain Circumstances
Posted Aug 19, 1998

In a July 28, 1998 cable, the U.S. Department of State (DOS) announced a blanket extraordinary circumstances exemption for those who timely filed for extension of stay or change of status and who depart after their I-94 has expired but before INS has made a decision on the application.

As you may remember, the Law Office of Sheela Murthy had reported in 1996 that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) includes a provision (Section 222(g)) which cancels the nonimmigrant visa for a person who has violated his or her status and requires such a person to apply only in the home country for the nonimmigrant visa. Since October 1, 1996, the subsequent nonimmigrant visa application for that person must be made in the country of nationality or the country of last residence if the person was deemed to be out of status. Under certain circumstances, the DOS will make an exception and allow such a person to apply for the non immigrant visa in a third country, such as Canada or Mexico if the DOS finds that extraordinary circumstances exists which merit an exemption.

This blanket exemption should apply when certain conditions are met, which is explained in greater detail below, and is being instituted because of delays in the processing of change of status or extension of status applications. Even though the determination of whether the applicant will qualify for change or extension of status is ultimately an INS decision, consular officers should apply the extraordinary circumstance exception in all but obvious cases of abuse of the system.

From time to time, the DOS has provided guidelines as to certain situations which would qualify for the "extraordinary circumstances" exception. These have been outlined in various articles in the Immigration Law Bulletin of the Law Office of Sheela Murthy. The July 28, 1998 cable, announced a blanket exemption for those who filed a timely application for extension or change of status and then needed to leave the U.S. after the expiration of the original period of stay, but while the extension or change application was still pending. The application for the change of status or the extension of stay must have been made in good faith and the visa applicant should not have worked without authorization.

Consulates have been advised that an application should be considered to have been in good faith if it is not on its face a groundless merely for the purpose of remaining in the U.S. to engage in activities which are not compatible with the person's status.

To determine a timely application, the Consular officer should use, for example, the INS receipt notice or a canceled check payable to INS establishing that the application to extend or change status together with a photocopy of Form I-94 since the original would probably have been removed at the time of departure from the U.S.

To determine that the applicant did not work, consul officers should assume that the applicant did not work if the person had an alternate means of support during the time in which work was not authorized.

Persons who may not qualify for this blanket exemption can still, as before, request individual exemptions. For the DOS interpretations of the term "extraordinary circumstances" please refer to the earlier Immigration Law Bulletins of the Law Office of Sheela Murthy in late 1996 and early 1997 for eligibility, or contact our law firm at law@murthy.com or call us at 410-356-5440 to obtain a legal opinion of your case.