New INA § 222(g) refers to "extraordinary circumstances" that may exempt an applicant in certain categories from a requirement that he or she return to the country of his or her nationality for nonimmigrant visa issuance.
The State Department has released guidance on this issue, which we present below. Also, attorney E. Vance Winningham of Oklahoma City has received an interesting response on this issue regarding one of his clients. Mr. Winningham reports that to his "surprise and delight," within 30 minutes after the Visa Office received his fax about a client's "extraordinary circumstances," it agreed that such circumstances existed, and the client was granted his visa and reentered the U.S. the next day without incident.
The client, "Dr. X," is a citizen of Pakistan. He was denied an H-1B visa at the U.S. consulate in Toronto, Canada based upon § 222(g). At that point, he asked about making an appointment at the U.S. consulate in Karachi, Pakistan for him to be processed and interviewed for an H-1B visa; the Karachi post advised him that there currently exists at least a two-month delay in scheduling such an appointment. In anticipation of visa approval, Dr. X had previously scheduled appointments with patients in Oklahoma in an area designated both as a Medically Underserved Area (MUA) and a Health Professional Shortage Area (HPSA). In Dr. X's absence, no other physicians were available to perform the examinations and provide the medical treatments scheduled by him. He had also been designated to provide emergency call coverage after hours for this and surrounding communities.
Mr. Winningham noted that (1) there was a two-month delay for a visa interview in Karachi, whereas 90 percent or more of U.S. consulates in the world can usually process H-1B visas within one to three business days; and (2) substantial medical hardship would be inflicted on an undetermined number of U.S. citizens in Oklahoma. He argued that these circumstances could be considered "extraordinary" as contemplated by new INA § 222(g). He also noted that the change in the law occurred only 10 days before Dr. X's appointment in Toronto, and that the doctor was given no updated information about the new requirements.
The Visa Office agreed, and communicated to the U.S. consulate in Toronto that "extraordinary circumstances" existed. Dr. X was granted his visa and reentered the U.S. the next day. Don't you just love a happy ending?
The following is the text of a recent State Department cable (no. 96-State-225321) on this topic:
Subject: P.L. 104-208 Update No. 7--INA § 222(g): Extraordinary Circumstances
Ref: A) State 208799 B) State 212382 (Notal)
1. Summary: This is cable number 7 in a series providing information on the immigration provisions of P.L. 104-208. Listed below are the categories of applicants for whom the Department has determined that extraordinary circumstances exist such that an applicant in one of the categories who is otherwise subject to the § 222(g) requirement that the applicant return to the country of his or her nationality for nonimmigrant visa issuance will be exempt from that requirement. Except as noted below, a consular officer need not refer to the Department for an advisory opinion any case in which the consular officer is satisfied that the following circumstances exist:
2. Doctors serving medically underserved areas of the U.S. The legal and medical communities have brought to the attention of the Department that physicians who qualify for participation in the program specified in INA § 214(k) for former J-1 graduate medical students serving in medically underserved areas of the U.S. frequently fall out of status while awaiting the lengthy processing involved in the granting of a waiver of the INA § 212(e) two-year home residence requirement. The Department has determined that extraordinary circumstances shall be considered to apply to such physicians when applying for an H-1B visa for the purpose of participating in the § 214(k) program. The determination is based on a number of factors, including primarily the public interest nature of this program and the fact that the Congress has passed special legislation to make it possible for these physicians to remain in the United States; that the physicians in question will provide essential medical services to otherwise underserved communities; and that requiring such physicians to return to their country of nationality to obtain visas would in many cases delay such services and likely require the expenditure of scarce resources by their employers which could otherwise be used for the delivery of medical services. However, such extraordinary circumstances shall apply only/only to those applicants for whom an employer filed either a petition with BCIS, or a § 212(e) waiver application with an interested government agency (such as HUD, USDA, ARC, or a state health department) prior/prior to the alien's existing J visa status having expired, and only if both the waiver application and the petition have subsequently been approved. Note, for this purpose, that J status holders are ordinarily given duration of status admittance and allowed to remain in the U.S. for thirty days beyond the termination of their program. Thus the petition or waiver filing required in these cases, in order to permit a physician to apply under extraordinary circumstances, would have had to have been prior to the termination of the thirty day period. For those Canadian and Mexican posts which received Reftel (B), note that the category of extraordinary circumstances for the subject physicians has been expanded to include filing of the waiver request.
3. Aliens with a residence in a third country. Aliens subject to the § 222(g) requirement whose current foreign residence, as defined in 9 FAM 42.61, NI, is in a country other than the country of their nationality shall be considered to be applying under extraordinary circumstances if they apply for a nonimmigrant visa at a post in such country of current residence rather than in the country of their nationality. The fact that section 632 of the [1996 Act] which added INA § 222(g) is titled elimination of consulate shopping for visa overstayers, indicates that Congress intended applicants covered by this new section to apply not in the place of their choosing, but in the country in which they would normally be expected to apply--ordinarily the country of nationality which usually provides the best forum for accurate adjudication, thus, to the extent the § 222(g) requirement was intended by Congress to permit the most thorough and useful adjudication of the applications of visa overstayers, then this purpose is best served by permitting an alien to apply in the country of nationality. However, a consular officer in the country of nationality of such an alien may not use this exception alone to refuse to accept a nonimmigrant visa application filed by the alien.
Consular officers should not be confused by the fact that the example in the FAM selected to illustrate definition of residence for this purpose is contained in the IV portion of the FAM. The reference was chosen merely as the most appropriate means to demonstrate the standard which the Department wishes applied to NIV applications in determining whether extraordinary circumstances exist.
4. Alien filing for change of status. Consular officers shall consider an applicant to be applying under extraordinary circumstances in any instance in which the applicant can demonstrate that, while the applicant was still in a period of authorized nonimmigrant status, a petition and request for change of status was filed by an employer on the applicant's behalf and subsequent[ly] approved by BCIS, but the alien technically fell out of status because the USCIS was unable to approve the petition and change of status prior to the termination of the alien's existing period of authorized stay.
Typically, in accordance with 8 CFR § 248.1(B), the USCIS takes no action to remove an alien in this situation from the U.S. Therefore, the Department believes that to impose the § 222(g) requirement against the alien would contradict USCIS policy. However, in an individual case, if the consular officer believes that the circumstances are such that a finding of extraordinary circumstances would contradict the intent of the statute the officer should request an advisory opinion from CA/VO/L/A.
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