DOS on Applying for Nonimmigrant Visas after an Overstay
Posted Aug 28, 1999

The U.S. Department of State (DOS) has issued a cable in June 1999 which summarizes its guidance on Section 222(g) of the Immigration and Nationality Act. Section 222(g) places restrictions on t he location of applying for a nonimmigrant visa, for certain persons who have overstayed their status. We at The Law Office of Sheela Murthy are often consulted on this important issue and believe it will be very useful for many of you to understand the legal implications of overstaying one's status. Notwithstanding the summary below, it is advisable to consult with an attorney before taking any final decision on when and where to apply for the non-immigrant visa.

Also, though the numbers are similar, 222(g) should not be confused with 221(g). 221(g) is a provisional denial of a visa application when a person has not presented sufficient documentation, and needs to go back to the same consulate and provide the missing items in order to qualify for the visa.

The general rule of Section 222 (g) is that if a person overstays the expiration date noted on the I-94 card, the visa stamp in his or her passport is no longer considered to be valid, and all non-immigrant visa stamps in the passport must thereafter be applied for at the visa applicant's country of nationality. This means that the person who is out of status is not allowed to file for the nonimmigrant visa at a consular post in a third country such as Canada or Mexico, unless the person is a citizen or permanent resident of these countries.

There are certain exemptions which allow a person who fell out of status, either on a blanket or case-by-case basis, if it is determined that "extraordinary circumstances" exist, to apply for the visa stamp in the passport at a consular post in a third country, that is, a country other than the country of nationality of the visa applicant.

Section 222(g) applies only to non-immigrants, and therefore does not apply to persons who entered (legally or illegally) without a visa, or who are paroled into the U.S. It applies only to persons who entered with a non-immigrant visa, for example, B-1/B-2, H1B, L-1, etc. Also, except in certain circumstances, it does not apply to a person whose I-94 card says "D/S" (duration of status) rather than showing a specific expiration date. This would be the case with F-1 and J-1 nonimmigrants. Certain categories, including most of the A (diplomatic) and G (international organization) categories and a few others, are not subject to 222(g). If a person makes a timely application for change or extension of status, and is then here past the expiration date while awaiting a decision, 222(g) will not apply if the application is subsequently approved.

There are certain blanket "extraordinary circumstances" exemptions, under which a person could apply for a visa in a country other than the country of his or her nationality, without requesting any special permission to do so. A person with resident status in a country other than the country of nationality can apply in the country of residence. The other blanket exemptions would enable the person to apply wherever it is convenient, and cover the following types of applicants:

(a) those who leave the U.S. while a timely filed application for extension or change of status is still pending; or

(b) those caught in the H1B "cap gap"; or

(c) certain physicians practicing in medically underserved areas.

An extraordinary circumstances exemption can also be requested in a particular case, for compelling humanitarian reasons. The Consular Officer must obtain concurrence from DOS headquarters before issuing such an exemption.

Note that, unlike the three and ten year bars, 222(g) does not make a person ineligible for a visa. It only restricts the location of applying for the visa.