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R 2318302 JAN 97
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY BANGUI
AMEMBASSY ASMARA
AMEMBASSY BUJUMBURA
AMEMBASSY SARAJEVO
AMCONSUL GUANGZHOU
INFO USINS WASHDC

UNCLAS STATE 012764

VISAS

E.O. 12958: N/A
TAGS: CVIS
SUBJECT: P.L. 104-208 UPDATE NO. 16 - INA 222(g) UPDATE

REF: (A) 96 STATE 208199 (B) 96 STATE 225321 (C) 96 STATE 232219

1.	This is cable number 16 in a series providing information on the 
immigration provisions of P.L. 104-208.  This cable supplements Refs A-C 
relating to the application of INA section 222(g).  Applicants for C-2, C-
3, and NATO-1 through NATO-6 visas are deemed to be applying under 
“extraordinary circumstances” and are therefore exempt from application of 
section 222(g).  A-3 and G-5 applicants who have previously overstayed a 
visa no longer benefit from Ref B’s blanket exemption from INA section 
222(g) and generally should be required to apply in their country of 
nationality.  Section 222(g) should not be applied to F or J visa holders 
who temporarily terminated or interrupted their studies but who were deemed 
re-instated in F or J status prior to September 30, 1996.  F-1 and J-1 
holders who temporarily cease or interrupt studies after September 30, 
1996, are considered overstays and will be subject to section 222(g), 
unless they properly applied to INS or USIA for reinstatement of status 
prior to the expiration of the applicable grace period provided for F’s and 
J’s and were subsequently reinstated.  End Summary

C-2, C-3, NATO-1 through NATO-6 Exempt from 222(g)

2.	Para. 5 of Ref B informed posts that A-1, A-2, G-1, G-3, and G-4 visa 
applicants would be considered to be applying under extraordinary 
circumstances, within the meaning of section 222(g)(2)(B), and should not 
be required to return to their country of nationality, regardless of any 
previous overstay.  Department has determined that the class of aliens 
entitled to this blanket exemption should be expanded to include applicants 
for C-2, C-3, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, and NATO-6 visas, 
henceforth, aliens applying for C-2, C-3, and NATO 1 through NATO-6 visas 
are deemed to be applying under “extraordinary circumstances,” and are 
exempt from application of 222(g).  Per Ref B para 6, NIVs issued to aliens 
who benefit from this exemption should be annotated “INA section 222(g) 
overcome under extraordinary circumstances.” Post should note that 
applicants for NATO-7 visas are not/not entitled to this blanket 
“extraordinary circumstances” exemption.

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“Extraordinary Circumstances” Not Applicable to A-3, G-5
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3.	Ref B advised posts that, during an interim period, A-3 and G-5 visa 
applicants who previously overstayed a visa were to be considered to be 
applying under “extraordinary circumstances,” within the meaning of INA 
222(g)(2)(B), and should not be required to return to their country of 
nationality.  Ref B further advised that 222(g) would be applied to these 
aliens once the Department had notified foreign missions and qualifying 
international organizations of the requirements of section 222(g) and of 
our intent to apply the provision to A-3 and G-5 applicants.

4.	The notification process has now been completed and, as of January 1, 
1997, applicants for A-3 and G-5 status are no longer automatically 
exempted from the provisions of 222(g).  Such applications should now be 
treated in the same fashion as post treats other cases subject to 222(g), 
and, with the exception of the very rare case where individual 
circumstances might justify a recommendation of a finding of extraordinary 
circumstances, post should advise all such applicants to apply in their 
country of nationality (or country of current foreign residence, under the 
separate blanket exemption for such cases).  Posts are reminded that A-1, 
A-2, G-1, G-2, G-3, and G-4 applicants continue to benefit from a blanket 
exemption from application of 222(g), based on Department’s finding of 
“extraordinary circumstances” in such cases.

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More on 222(g) as It Relates to F and J Visa Holders
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5.	Ref C advised that aliens who are admitted for duration of status, 
such as F and J holders, would be subject to section 222(g) if they 
remained in the U.S. beyond the completion of their studies and any 
applicable grace period.  (The grace periods are 60 days for Fs and 30 days 
for Js.)  The following guidance should be applied to students who 
temporarily stop attending school but who resume their studies at some 
later point.

6.	Until very recently, INS permitted out-of-status F-1 students (e.g. 
those who had temporarily dropped out of school) to be reinstated to their 
current program and status by departing the U.S. and being readmitted on a 
new I-20.  Effective Dec. 23, 1996, that policy was rescinded and F-1 
students may now only be reinstated if they file the required Form I-539 
and go through the formal adjudication process for reinstatement as 
required by 8 CFR 214.2(f)(16).  (FY):  That provision allows the INS to 
reinstate the F-1 status of a student who has fallen out-of-status if: (1) 
The violation of status resulted from circumstances beyond the student’s 
control or extreme hardship would result if the alien is not reinstated; 
(2) the alien is pursuing or intends to pursue a full course of study at 
the school which issued the I-20; and (3) the alien has not engaged in 
unauthorized employment and is not otherwise deportable.)

7.	According to INS, aliens who interrupted their studies prior to 
September 30, 1996 (the effective date of section 222(g), but who benefited 
from subsequent reinstatement either through re-entry on a new I-20 or 
through formal reinstatement proceedings under 8 CFR 214.2(f)(16) are 
not/not to be considered overstays for the purposes of section 222(g).  
Such aliens are not subject to 222(g) and would not be required to apply 
for future visas in their country of nationality.

8.	On the other hand, aliens who interrupted their studies after 
September 30, 1996, and did not resume them within the grace period are 
considered overstays and generally would be subject to section 222(g), even 
if they are subsequently reinstated in F-1 or J-1 status by the INS or 
USIA.  The only exception would be for aliens who properly filed 
applications for reinstatement with INS or USIA prior to the end of the 
applicable grace period.  Thus, if an alien temporarily ceases studies but 
files for reinstatement within 30 days (for Js) or 60 days (for Fs) of 
having interrupted his/her studies, the alien would not/not be deemed an 
overstay subject to section 222(g), provided the alien’s application for 
reinstatement was subsequently approved.  On the other hand, F and J aliens 
who interrupt studies after September 30, 1996, and who do not resume 
studies or apply for reinstatement within the applicable grace period, 
would be subject to 222(g), even if the INS or USIA subsequently reinstates 
their student status.

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Extent of Inquiry of Fs/Js Interrupting Studies
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9.	Presently, in the vast majority of cases there is not convenient or 
reliable method for determining at the time of visa interview whether an 
alien who formerly held F or J status might have interrupted studies and 
been reinstated at some point in the past.  It would be overly burdensome 
and a poor use of resources for Conoffs to require all applicants who have 
ever held F or J status to present proof that they have maintained 
continuous full-time student status throughout their previous stay(s) in 
F/J status.  Instead, our efforts should be focused on those cases likely 
to produce results.  Thus, consistent with the guidance in Ref A, Conoffs 
should not undertake lengthy questioning of applicants to determine whether 
they might have ever interrupted F or J studies or benefited from F/J 
reinstatement at some point in the past, unless in the course of normal 
visa processing the possibility of a previous interruption of 
studies/reinstatement of status becomes apparent through information 
otherwise routinely obtained (e.g., OF-156 or routine interview revealing 
lengthy F/J stay in the U.S. far in excess of that normally required to 
complete the studies undertaken).

10.	Minimize considered.

Albright