|
NEW INS MEMO ALLOWS VISITORS TO LEAVE U.S.
WHILE EXTENSION REQUEST IS PENDING
by Michael J. Gurfinkel, Esq.
Dear Atty. Gurfinkel:
I entered the U.S. for a vacation and to visit relatives on my
ten year/multiple visitor's visa. At the airport, the INS Officer
gave me six months on my I-94 (white arrival/departure record).
Before the expiration of that six months, I filed for an extension.
When I got the receipt for my extension from INS, it stated that
INS is taking almost eight months to process extension
requests.
I want to leave the U.S. now and cannot wait any
more for the INS' decision. But, I heard that if I leave the U.S.
before INS makes a decision on my extension request, then my existing
10 year/multiple visitor's visa will be canceled. Is there anything
that I can do to be able to leave the U.S. without waiting for
the INS' decision on my extension, and also "protect"
my existing visitor's visa from being canceled or voided?
Very truly yours,
DL
Dear DL:
On March 3, 2000, INS Headquarters in Washington, D.C., released
a Memorandum allowing visitors with pending extension requests
to leave the U.S. without jeopardizing their existing visas, provided
certain requirements are met. Thus, many visitors who are finding
themselves "stuck" in the U.S. waiting for a decision
on their extension, may leave the U.S., before INS' decision.
By way of background in 1996, the U.S. Congress
passed a law, Section 222(g), which stated, in essence, that if
an alien entered the U.S. on a non-immigrant visa (i.e. visitor's
visa) and remained in the U.S. beyond the period of his authorized
stay (the time listed on the I-94 by the INS Officer at the airport),
his existing visa would be void, and he would no longer be able
to use that visa to enter the U.S., even if it was a ten year/
multiple. Instead, he would be required to return to his home
country, to apply for a new visa, so he could enter the U.S. again.
In a Memorandum dated January 14, 1999, the INS
stated that as long as a person filed for an extension of stay
before his original period of authorized stay expired,
the person would be considered to be "in status", even
if the extension was approved after the date on his I-94.
However, that same January 14, 1999 Memorandum stated that if
the person thereafter left the U.S. before a decision on
his extension request, then his existing non-immigrant visa could
be voided or canceled by INS.
Those who filed for extensions before their
I-94 expired, found themselves in a situation where they were
required to wait in the U.S. until INS made a decision on their
extension request, especially where it was taking INS almost eight
months to process the extension request.
The INS Memorandum of March 3, 2000, helps relieve
this problem by amending the January 14, 1999 Memorandum. Under
this recent Memorandum, people may leave the U.S. before
a decision is made on their extension request, without jeopardizing
their existing visitor's visa.
The new INS Memorandum provides in relevant part
as follows:
1. The INS has determined that a person would be
considered "in status" or in a "period of stay
authorized" by INS during the "entire period during
which a timely filed, non frivolous application [for extension
of status] has been pending with the Service, provided that the
alien has not engaged in any unauthorized employment" in
the U.S. during his "visit".
2. The extension of status must have been "timely
filed", meaning that it was filed before the expiration
date on a person's I-94.
3. A person may prove (or establish) that his application
for extension of status was timely filed by submitting on their
next trip back to the U.S. a copy of his filing receipt for the
extension, a canceled check payable to the INS for the extension
of status, or other credible evidence that the request for extension
was filed before the expiration date of the I-94.
4. The application for extension of status must
be Çnon frivolous', meaning that the application "must have
an arguable basis in law or fact and must not have been for an
improper purpose". This means you need a good and valid reason
for the extension request.
5. The alien must not have worked without INS authorization
before the application for extension of status was filed or while
it was pending. INS can take a "sworn statement" from
the alien on the alien's next trip back to the U.S. concerning
unauthorized employment. Further, aliens who make misrepresentations
(or lie) about unauthorized employment could be subject to a finding
of fraud by INS based on the Çwillful misrepresentation of a material
fact'. Therefore, do not work during your visits!
6. If the above requirements have been met (i.e.
filing for an extension before your I-94 expires, and not working
while on a visitor's visa), then if a person leaves the U.S. after
their I-94 expires and before a decision the application
has been issued, "they are NOT subject to Section
222(g)..."
Accordingly, if you were one of those visitor's
who filed an extension request before your I- 94 expires, but
have been forced to wait for a decision, this new INS Memo may
finally allow you to leave. If you have any questions about whether
you have satisfied the requirements of this INS Memo, I would
strongly suggest that you seek the advice of a reputable attorney,
who can analyze your situation, to make sure that it is "safe"
for you to leave the U.S.
Back
to Main
|
