The Department of State has issued an interim rule outlining the procedures for the issuance of a new nonimmigrant visa in an applicant’s home country when the person has overstayed their visa in the US. The new rule also outlines how waivers are to be issued allowing persons to receive a new nonimmigrant visa when “extraordinary circumstances” are found to exist. Section 222(g) of the Immigration and Nationality Act, added by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, states that any alien who overstays the authorized period of a non-immigrant visa automatically has their visa voided. This means that a new visa would have to be issued before the person could reenter the US. For example, if a person overstays the I-94 period of admission when in the US on a multiple entry B-2 tourist visa, the person could not simply leave and reenter with a new I-94. The person would have to apply for a new visa and the application would have to be submitted to a consulate having jurisdiction over the person’s home country.
The regulation lists specific exceptions to the rule requiring processing in one’s home country. They are as follows:
1. Physicians serving underserved areas and for whom a waiver of the J-1 two year foreign residence requirement and/or a petition to accord H-1B status was filed before the end of the alien’s authorized period of stay and was later approved but whose status expired while the application was pending.
2. Any other individual or group whose circumstances are determined to be extraordinary by the Department of State’s Deputy Assistant Secretary for Visa Services upon the favorable recommendation of an immigration or consular officer. “Extraordinary circumstances” may be found where compelling humanitarian or national interests exist or where necessary for the effective administration of the immigration laws. Extraordinary circumstances will not be found upon the basis of convenience or financial burden to the alien, the alien’s relative, or the alien’s employer.
3. An alien who has, or immediately prior to the alien’s last entry to the US had, a residence in a country other than the country of the alien’s nationality shall apply at a consular office with jurisdiction in or for the country of residence.
4. An alien who is a national and resident of a country with no US consulate may apply at a consulate designated by the State Department to accept cases from persons of that nationality.
5. An alien who possesses more than one nationality and who just prior to coming to the US on the previous entry resided in one of the countries of nationality must apply in the country of such residence.
The regulation also notes that a stateless person is considered to be a national of the country that issued the alien’s travel document.
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