The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA 96”) contains a provision stating that a nonimmigrant visa is void as soon as the nonimmigrant visaholder overstays his or her period of stay in the US and that such aliens may not be readmitted to the US unless a new visa is issued by a consulate in the alien’s home country (absent “extraordinary circumstances”). The new provision became effective upon the President’s signing of the bill. The State Department has stated that if a person is out of status for even one day, the law will cover that person. The State Department has outlined a few exceptions to the rule:
- the State Department finds that extraordinary circumstances exist or
- the alien had already been issued a new visa prior to the date of enactment of the new law.
The State Department notes that it can be very difficult for an alien to document that he or she did not overstay their visa. Unless it is obvious that a person overstayed (such as by examining the passport or the alien answers question 30 on the OF-156 in a way which reveals the overstay), consular officers are directed not to engage in a lengthy interrogation of the alien. Only if the consular officer becomes aware of a fact indicating an overstay will the alien be required to provide sufficient evidence to establish otherwise.
One likely scenario where the overstay will be flagged is when an alien has been approved for a non-immigrant visa in the US, but not approved for a change of status. That is because the INS will routinely grant a change of status application unless the alien is out of status.
Where aliens are denied processing due the fact that they overstayed their visa, the consular officers are instructed to inform the applicant in writing of the reason for ineligibility for processing. Furthermore, the alien’s name will be entered into the CLASS lookout system so that other consulates will be aware of the determination.
With respect to the “extraordinary circumstances” exception, the State Department recently issued a memorandum outlining when the provision will be employed. They are as follows:
- doctors serving medically underserved areas of the US (such doctors frequently fall out of status while awaiting an approval of a waiver of the two year home residency requirement applicable to physicians in J-1 visa status.
- aliens with a residence in a third country other than their home country
- alien filing for change of status – an applicant who timely filed for a change of status with INS but “technically” falls out of status because the INS is unable to approve the petition and change of status prior to the termination of the alien’s existing period of authorized stay.
- A and G visa applicants
- “homeless” aliens who do not have US consulates in their home country.
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