Two new sections of the Immigration and Nationality Act were created to define these penalties: INA . Regulations have not yet been written to fully define the applicability of the statutory provisions; however, the penalties that could apply are significant. DHS has not yet issued any guidance that supersedes prior INS guidance. Individuals needing legal advice should be referred to an immigration attorney. The challenge of interpreting the law. Advising individuals on the applicability of INA . In the meantime, INS and DOS issued internal memoranda and cables to their field offices, to provide central office guidance on how field offices should interpret and apply the law. The explanations and interpretations of INA . One should note, however, that although an agency's interpretation of a law that it is charged with enforcing or administering does carry great weight, these memoranda and cables are not considered law. Nonimmigrant status violations and I. N. A. Thus, someone whose I- 9. September 3. 0, 1. Also, a ruling by an immigration judge or a USCIS (or a DHS) officer that the individual violated status, even if such a violation occurred prior to September 3. Penalties under 2. If an alien is determined to be a . It is important to remember that I. N. A. If an individual who is subject to I. N. A. For situations not covered by one of the . In making the request for an advisory opinion a consular officer may recommend that an exemption be granted, but must in all cases request an advisory opinion from the Visa Office and await the Visa Office's response before granting the exception and issuing the visa. Blanket extraordinary circumstances exemptions. Department of State regulations and guidance provide several important . W 1 Warrior, 2 west, 3 weekly, 4 watt, 5 aircraft symbol-weather, 6 first letter in USCG ship designator, 7 .If an alien subject to I. N. A. This provision applies to individuals whose period of stay expired while applications that had been filed before the authorized period of stay expired- -and that were subsequently approved- -were pending. USCIS and DOS clarified that the following individuals are not subject to overstay penalties, since they did not enter the United States on a nonimmigrant visa: Individuals who come on immigrant visas; Those who enter the United States under a visa waiver program (WB or WT status on the Visa Waiver Pilot Program or Guam Visa Waiver Program); Individuals who are not required to obtain visas under 8 C. F. R. INS and DOS jointly interpreted this phrase to mean only the following: The alien has remained in the United States after the expiration date recorded on Form I- 9.
An Immigration Judge finds in the course of removal proceedings that there has been a status violation, resulting in the termination of the alien's period of authorized stay; or. INS (and now presumably DHS) determines in the course of adjudicating an application for an immigration benefit that there has been a status violation, resulting in the termination of the alien's period of authorized stay. Status violations other than staying beyond the date on Form I- 9. I. N. A. A stay beyond the date listed on Form I- 2. The L-1 visa is a non-immigrant visa which allows US & foreign companies operating both in the US and abroad to transfer qualified employee to the United States for up to seven years. Persons holding B-1 visas or who are admitted for business purposes under the Visa Waiver Program may travel to the US on business, which includes but is not limited to activities such as the negotiation of contracts and. ID or Form DS- 2. A nonimmigrant admitted for D/S will be considered an overstay under . USCIS considered the following individuals not to be subject to . Since, strictly speaking, the I- 9. Applications that are accepted late are eventually approved nunc pro tunc ; that is, approval is retroactive to the date of the previously authorized stay. Aliens whose applications are approved in this circumstance are not subject to I. N. A . Also, such individuals should have evidence of their ability to support themselves while the application was pending to prove that they did not need to work. This documentation may have to be presented to a DHS or consular officer to prove that the alien was in a period of authorized stay prior to his or her departure from the United States. I. N. A. When a nonimmigrant is admitted for duration of status, no expiration date appears on Form I- 9. A nonimmigrant admitted for D/S will therefore be considered unlawfully present for purposes of . In the case of the 3- year bar, the departure must be voluntary in order for the 3- year bar to apply. If a person is removed from the United States involuntarily (e. Any departure, voluntary or otherwise, will cause the 1. Counting days of unlawful presence. For purposes of the 3- and 1. Those circumstances are outlined below: Days prior to the individual's 1. Periods during which an individual had a bona fide application for asylum pending (unless the individual engaged in unauthorized employment during the period when the application was pending); Time when the individual was a beneficiary of family unity protection pursuant to section 3. Immigration Act of 1. Those who qualify as a battered spouse or child under I. N. A. This is commonly called the . To qualify for the tolling provision, the individual mustbe lawfully admitted or paroled into the United States; have timely filed a nonfrivolous application for a change of status or extension of status with USCIS; not have engaged in unauthorized employment before or while the application was pending with USCIS. USCIS considers an application . Recognizing that applications for extension or stay or change of status in reality may take longer than 1. INS decided to interpret the entire period of pendency of such applications as a period . In the case of an approval, no unlawful presence accrues. If a timely- filed application for a change or extension of status is denied because it was frivolous or because the alien engaged in unauthorized employment, then unlawful presence begins to accrue as follows: For those with a date- certain I- 9. I- 9. 4. For those with duration of status, unlawful presence begins to accrue on the date the application is denied. If an application is not filed in a timely manner, and is denied for any reason, unlawful presence begins to accrue as of the date of the expiration of the I- 9. I- 9. 4. For those admitted for duration of status, unlawful presence begins to accrue on the date the application is denied. Applications filed late, but accepted for processing. If an application for change or extension of status is filed late, but accepted for processing (see 8 C. F. R. If the application is denied, unlawful presence will accrue starting on the date the Form I- 9. I- 9. 4 cases) or the date of the denial (for D/S I- 9. Effect of departure from the United States while application for extension or change of status is pending. Nonimmigrants who apply for extension or change of nonimmigrant status but who leave the United States before a decision on the application is made by USCIS are not subject to the counting of days of unlawful presence if they were in a period of stay authorized by the Attorney General prior to their departure from the United States. Nonimmigrants who apply for an extension or change of nonimmigrant status but who leave the United States after their I- 9. The application was filed in a timely manner (i. The application was nonfrivolous; and. The applicant did not engage in any unauthorized employment before the application was filed or while it was pending. Other periods during which unlawful presence time is not counted. INS had also designated the following . Therefore, if a nonimmigrant applies for adjustment of status under I. N. A. To be eligible, the permanent resident must show that being barred from admission to the United States would result in extreme hardship to the citizen or permanent resident spouse or parent . Because many in the population of students and scholars are admitted for duration of status, it is easy to miss situations where individuals are admitted for a specific date. Such situations create a greater risk of staying beyond the period authorized. A common date- certain situation is that of the H- 1. B, but temporary workers cannot continue working beyond the date on the I- 9. Thus, most institutions have systems in place to identify the expiration dates of H- 1. Bs in advance. F- 1s or J- 1s who receive an I- 5. United States are at great risk of becoming overstays and unlawfully present. These individuals have only 3. USCIS, and the expiration date of the I- 9. Advisers should warn F- 1s and J- 1s about the possibility of the I- 5. I- 9. 4. Not all denials of applications by a USCIS officer will subject someone to the overstay and unlawful- presence penalties. The USCIS must make a ruling that the application was denied because of a violation of status. Thus, someone who applies for permission to work due to economic hardship may be denied because the application did not show a change in the applicant's financial circumstances since he or she became an F- 1. That student would not be subject to the overstay and unlawful- presence provisions. However, if the student is denied because he or she was found to have violated status because of previous unauthorized employment, that student would be considered an overstay and would begin to accrue days of unlawful presence from the date of the denial. Because the penalties are so severe, it is important to advise students and scholars about unlawful presence and overstay penalties. When a student or scholar has violated his or her status, the adviser's discussion of options should include an exploration of whether the student or scholar may become subject to overstay or unlawful- presence penalties if the proposed application is not approved. For example, someone with . However, if an application for reinstatement is made to USCIS and that application is denied, it is likely that the student will be considered an overstay and will begin to accrue days of unlawful presence. If that same student did not make the application to USCIS, but simply left the United States and made a new entry, he or she would not be subject to any of the overstay or unlawful- presence penalties. But, there may be certain risks associated with leaving the United States to make a new entry, particularly when a new visa is required.
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