9 FAM 302.11 

(U) Ineligibility based on Previous removal and unlawful presence in the united States - INA 212(a)(9)  

(CT:VISA-679;   09-24-2018)
(Office of Origin:  CA/VO/L/R)

9 FAM 302.11-1  (U) Statutory and Regulatory Authority

9 FAM 302.11-1(A)  (U) Immigration and Nationality Act

(CT:VISA-272;   12-20-2016)

(U) INA 101(g) (8 U.S.C. 1101(g)); INA 212(a)(9)(A) (8 U.S.C. 1182(a)(9)(A)); INA 212(a)(9)(B) (8 U.S.C. 1182(a)(9)(B)); INA 212(a)(9)(C) (8 U.S.C. 1182(a)(9)(C)); INA 212(d)(3) (8 U.S.C. 1182(d)(3)); INA 235 (8 U.S.C. 1225).

9 FAM 302.11-1(B)  (U) Code of Federal Regulations

(CT:VISA-272;   12-20-2016)

(U) 8 CFR 212.7(e); 22 CFR 40.93.

9 FAM 302.11-2  (U) Individuals Previously Removed - INA 212(a)(9)(A)

9 FAM 302.11-2(A)  (U) Grounds

(CT:VISA-347;   04-18-2017)

a. (U) INA 212(a)(9)(A)(i) makes inadmissible, and therefore ineligible for a visa, any alien who has been ordered removed  under INA 235(b)(1) or INA 240 as an arriving alien, and who seeks admission within 5 years (or 20 years if second or subsequent removal or at any time if convicted of an aggravated felony) of the date of such removal, unless prior permission has been granted (see 9 FAM 302.11-2(B)(5))

b. (U) INA 212(a)(9)(A)(ii) makes inadmissible, and therefore ineligible for a visa, any alien who has been ordered removed from the U.S. or departed while an order of removal was outstanding and who seeks admission within 10 years (or within 20 years if it is after a second or subsequent removal or at any time if the individual is convicted of an aggravated felony) from the date of such departure or removal, unless prior permission has been granted (see 9 FAM 302.11-2(B)(5)).

9 FAM 302.11-2(B)  (U) Application

9 FAM 302.11-2(B)(1)  (U) Five Year Bar

(CT:VISA-272;   12-20-2016)

(U) An alien who has been found to be inadmissible as an arriving alien, whether as a result of a summary determination of inadmissibility by an immigration officer at the port of entry under INA 235(b)(1) – (“Expedited Removal”) or as a result of a finding of inadmissibility by an Immigration Judge during a hearing in Immigration Court under INA 240 (“Removal Proceedings”) that DHS initiated upon the alien’s arrival in the United States, is inadmissible under INA 212(a)(9)(A)(i) unless the alien has remained outside of the United States for five consecutive years since the date of deportation or removal.  Under INA 101(g), an alien who departs the United States while a final removal order is in effect is deemed to have been removed, even if the alien leaves on his or her own.

9 FAM 302.11-2(B)(2)  (U) Ten Year Bar

(CT:VISA-272;   12-20-2016)

(U) An alien who has otherwise been removed from the United States under any provision of law, or who departed while an order of removal was in effect, is inadmissible under INA 212(a)(9)(A)(ii) unless the alien has remained outside of the United States for 10 consecutive years since the date of removal or departure.

9 FAM 302.11-2(B)(3)  (U) Twenty Year Bar

(CT:VISA-272;   12-20-2016)

(U) An alien who has been removed from the United States two or more times is inadmissible under INA 212(a)(9)(A)(i) or INA 212(a)(9)(A)(ii), as appropriate, unless the alien has remained outside of the United States for 20 consecutive years since the date of such removal or departure while a removal order was outstanding.

9 FAM 302.11-2(B)(4)  (U) Permanent Bar

(CT:VISA-272;   12-20-2016)

(U) If an alien who has been removed has also been convicted of an aggravated felony, the alien is permanently inadmissible for a visa under INA 212(a)(9)(A)(i) or 212(a)(9)(A)(ii), as appropriate.  "Aggravated felony" is defined in INA 101(a)(43) (see 9 FAM 102.3-1 for additional information).  For purposes of this permanent bar, it does not matter whether the individual has been convicted of an aggravated felony in the United States or outside of the United States; it also does not matter whether the conviction itself resulted in the removal of the alien, or whether the alien was convicted prior to or after the removal of the alien.

9 FAM 302.11-2(B)(5)  (U) Permission to Reapply or Consent to Reapply (CTR)

(CT:VISA-679;   09-24-2018)

a. (U) An alien is not inadmissible under INA 212(a)(9)(A)(i) or (ii) if prior to the alien’s re-embarkation at a place outside the United States or attempt to be admitted from a foreign contiguous territory, the Secretary of Homeland Security has consented to the alien's reapplying for admission.  The individual must file Form I-212 (Application for Permission to Reapply for Admission into the United States After Deportation or Removal) to obtain "Consent to Reapply" (CTR) before he/she can lawfully return to the United States.  "Consent to Reapply" is also called "permission to reapply."  If the Secretary of Homeland Security consents, then the inadmissibility no longer applies.  Although the consent to reapply removes the ground of ineligibility, it does not remove the factual circumstances which led to the original finding of ineligibility nor does it affect any other ground of ineligibility.

b. (U) However, for nonimmigrant visa (NIV) applicants only, DHS will consider CTR to have been granted for ineligibility under INA 212(a)(9)(A)(i) or (ii) with the approval of a consent to reapply  through the Admissibility Review Information Service (ARIS) via an “ARIS Waiver Request Form”.  You may favorably recommend an NIV applicant ineligible under INA 212(a)(9)(A)(i) or (ii) at any time within the applicability period of the 5, 10, 20 year, or permanent bar.  Therefore, when posts are recommending a waiver through ARIS for NIV applicants, the applicant should not file an I-212.

c.  (U) When submitting the ARIS request for a 9A ineligibility, post must clearly state, “Post recommends consent to reapply” and provide the reason for recommending in the written comments of the ARIS request.

9 FAM 302.11-2(C)  (U) Advisory Opinions

(CT:VISA-272;   12-20-2016)

(U) An AO is not required for a potential INA 212(a)(9)(A) ineligibility; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from CA/VO/L/A.

9 FAM 302.11-2(D)  (U) Reserved

(CT:VISA-347;   04-18-2017)

9 FAM 302.11-2(E)  Unavailable

9 FAM 302.11-2(E)(1)  Unavailable

(CT:VISA-272;   12-20-2016)

a. Unavailable

b. Unavailable

c.  Unavailable For more information on entering refusals see 9 FAM 303.3-4(A).

9 FAM 302.11-2(E)(2)  Unavailable

(CT:VISA-272;   12-20-2016)

a. Unavailable 

b. Unavailable 

c.  Unavailable

9 FAM 302.11-3  (U) Individuals Unlawfully Present - INA 212(a)(9)(B)

9 FAM 302.11-3(A)  (U) Grounds

(CT:VISA-272;   12-20-2016) 

(U) INA 212(a)(9)(B) makes inadmissible, and therefore ineligible for a visa aliens who have, since April 1, 1997, been “unlawfully present” in the United States for more than 180 days.

9 FAM 302.11-3(B)  (U) Application

9 FAM 302.11-3(B)(1)  (U) Interpretation of “Unlawful Presence”

(CT:VISA-658;   08-09-2018)

a. (U) Accrual of Unlawful Presence In General: INA 212(a)(9)(B)(ii) provides the following construction for the term "unlawful presence": “… the alien is present in the United States after the expiration of the period of stay authorized by the [Secretary of Homeland Security] or is present in the United States without being admitted or paroled."  Under this construction, an alien would generally begin to accrue unlawful presence upon the first occurrence of any of the events described below:

(1)  (U) when he or she entered the United States without inspection;

(2)  (U) for aliens admitted until a specified date, the day after the expiration date specified on the Form I-94, Arrival and Departure Record plus any extension or period of re-parole;

(3)  (U) for an alien admitted in F, M, or J status, the day after his or her period of authorized stay expires (see paragraph d below);

(4)  (U) the day after DHS denied a request for an immigration benefit for the applicant, if DHS made a formal finding that the alien violated his or her nonimmigrant status while adjudicating the request for an immigration benefit; or

(5) (U) the day after an immigration judge ordered the alien excluded, deported, or removed (whether or not the decision is appealed). 

      (U) Note: Even aliens fitting into one of these categories may be deemed to be in a period of authorized stay in certain circumstances, as noted below.

b. (U) Period of Authorized Stay In General: For purposes of INA 212(a)(9)(B), unlawful presence will not accrue during a "period of authorized stay," which includes:

(1)  (U) For aliens inspected and admitted or paroled, the period of time from their authorized entry through the date specified on the Form I-94 (including the expiration date) or any extension of stay or period of re-parole.  A period of stay is no longer authorized upon the first occurrence of any of the following events:

(a)  (U) The day after the expiration date specified on the Form I-94 (or any extension);

(b)  (U) The day after DHS denied a request for an immigration benefit, if DHS made a formal finding that the alien violated his or her nonimmigrant status while adjudicating the request for an immigration benefit;

(c)  (U) The day after an immigration judge ordered the alien excluded, deported, or removed (whether or not the decision is appealed); or

(d)  (U) For aliens admitted in F, J, and M status: See paragraph d below;

(2)  (U) For aliens inspected and admitted for "duration of status" (D/S):

(a) (U) in a classification other than F, J, or M (as is usually the case with aliens in A-1, A-2, TECRO E-1, G-1, G-2, G-3, G-4, I, and NATO-1 through NATO-6-visa status), any period of presence in the United States, through the earliest of (i) the day DHS denied a request for an immigration benefit, if DHS made a formal finding that the alien violated his or her nonimmigrant status while adjudicating the request for an immigration benefit; or (ii) the day an immigration judge or the BIA ordered the alien excluded, deported, or removed (whether or not the decision is appealed).  A period of stay is no longer authorized the day after the first occurrence of either of the preceding events.  With respect to aliens admitted in A-1, A-2, G-1, G-2, G-3, and G-4 status, the Department (not DHS) determines whether an alien continues to be entitled to A or G status; therefore, only after State has determined that an alien is no longer entitled to A or G status may DHS make a finding of status violation.  In such cases, unlawful presence begins the day after the Department makes such a finding. 

(b)  (U) For aliens in F, J, or M status see paragraph d below;

(3)  (U) For aliens granted "voluntary departure" (VD), pursuant to INA 240B, the period of time between the granting of VD and the date VD expires;

(4)  (U) For aliens in F, J, or M status who were out of status and timely file a reinstatement application (i.e. the alien was not out of status for more than five months), the period of time the alien was out of status and the period of time their reinstatement application is pending, provided the reinstatement application is approved;

(5)  (U) For aliens who have timely-filed for extension of stay or change of nonimmigrant classification and who have remained in the United States after expiration of the Form I-94 while awaiting DHS's decision, the entire period of the pendency of the application, provided that:

(a)  (U) The alien had been lawfully admitted or paroled into the United States;

(b)  (U) The alien did not work unlawfully while the application was pending and did not work unlawfully prior to filing the application; and

(c)  (U) The alien did not otherwise fail to maintain his or her status prior to the filing of the application), and further provided either:

(i)     (U) That the application was subsequently approved; or

(ii)    (U) If the application was denied or the alien departed while the application was still pending, that the application was timely filed and nonfrivolous.

      (U) NOTE: In certain circumstances, USCIS may excuse an untimely filing for extension of stay (8 CFR 214.1(c)(4)) or change of status (8 CFR 248.1(b)). Therefore, if the alien filed the application after his or her previously authorized status expired, but USCIS excused the late filing (i.e., treating it as "timely filed") in its discretion and approved the request for extension of stay or change of status, then the alien would not have accrued any unlawful presence effective from the date the previously authorized stay expired.  If, however, the alien submitted an application for extension of stay or change status after the expiration of his or her I-94 and left the United States while that  late filing  was pending adjudication, then that late filing is not considered excused and the alien started accruing unlawful presence on the day after the alien's status expired.

(6)  (U) For aliens who have properly filed an application for adjustment of status to that of a lawful permanent resident (LPR), the entire period of the pendency of the application, even if the application is subsequently denied or abandoned, provided the alien (unless seeking to adjust status under NACARA or HRIFA) did not file for adjustment "defensively" (i.e., after removal proceedings had already been initiated);

(7)  (U) For aliens seeking or granted Temporary Protected Status (TPS), the period a prima facie eligible application for TPS is pending, provided the application is ultimately approved, and the period of time during which the TPS grant is in effect; and

(8)  (U) For aliens granted deferred action, the period during which deferred action is authorized.

      (U) Note: The foregoing above list is not exhaustive.  If you have a question about the interpretation or application of law or regulation, you may request an AO from CA/VO/L/A.

c.  (U) You should note that even if a person fails to re-register for TPS, s/he continues to maintain TPS until USCIS affirmatively withdraws TPS.  Also, any unlawful presence accrued prior to the filing of an application for adjustment of status, or the granting of voluntary departure, or the date a prima facie TPS application is filed (if the application is approved) is not "cured" by the subsequent period of authorized stay that these events trigger, and additional unlawful presence will resume accruing after these authorized periods lapse.

d. (U) Applicants who Previously had F, J, or M Status

(1) (U) In General:  Applicants who previously were in the United States in F, J, or M status may have started to accrue unlawful presence upon the first occurrence of any of the events outlined below:

(a) (U) the day after the date specified on the Form I-94, Arrival and Departure Record plus any extension of stay, if the F, J, or M nonimmigrant was admitted for a specified date;

(b) (U) the day after the applicant ceased engaging in the activities for which he or she was in the United States in F, J, or M status, such as the day after the applicant stopped attending school, engaging in authorized practical training, or participating in the exchange program (plus any applicable grace period) as described further in paragraph (2) below.  Note this only applies for actions on or after August 9, 2018; An applicant who failed to maintain nonimmigrant F, J, or M status before August 9, 2018, and remained in the United States after that date began accruing unlawful presence on August 9, 2018.

(c) (U) the day after DHS denied a request for an immigration benefit regardless of whether the applicant continued attending school or participating in the exchange program, if DHS made a formal finding that the alien violated his or her nonimmigrant status while adjudicating the request for an immigration benefit before August 9, 2018; or

(d) (U) the day after an immigration judge ordered the alien excluded, deported, or removed (whether or not the decision is appealed). 

(2) (U) Applicants who stopped attending school, engaging in practical training, or participating in the exchange program, or who engaged in an unauthorized activity:  You may determine that an applicant accrued unlawful presence if the applicant stopped engaging in required activities (attending school, engaging in authorized practical training, or participating in the exchange program (plus any applicable grace period)) or engaged in an unauthorized activity on or after August 9, 2018 while in the United States in F, M, or J nonimmigrant visa status.  For applicants who ceased engaging in such required activities prior to August 9, 2018, and who are not engaging in such required activities on that date, or who engaged in an unauthorized activity prior to August 9, 2018, and who are still engaging in such unauthorized activity on that date, the applicant would begin to accrue unlawful presence as of August 9, 2018.  For applicants who cease engaging in such activities on or after August 9, 2018, the applicant would begin to accrue unlawful presence the day after he or she ceased engaging in the F, M, or J activities.  A determination that an applicant accrued unlawful presence may be made whether the applicant was admitted for duration of status or for a specified date, and if admitted until a specified date may be made prior to the expiration of the date specified on the Form I-94, provided the time period of unlawful presence includes only such period(s) occurring on or after August 9, 2018.  You should examine the applicant's program dates in SEVIS and the date the student or exchange visitor's status was "terminated" in SEVIS, if applicable, when determining whether he or she remained beyond the period of authorized stay, but you may conclude that the applicant remained longer than permitted even without verification in SEVIS.   You may consider other records, documents submitted by the applicant, and statements from the applicant in the interview in determining whether the applicant has accrued unlawful presence.   

(3) (U) Authorized periods of stay: 

(a) (U) F and M students: The period of authorized stay for F and M students is discussed at 9 FAM 402.5-5(L)

(b) (U) J exchange visitors: The period of authorized stay for J-1 exchange visitors generally refers to the time of the approved program listed on Form DS-2019, plus a grace period of up to 30 days prior to the program start date and 30 days at the conclusion of the program.  See 9 FAM 402.5-6(I)(4) and 402.5-6(I)(6) for discussion of timeframes for J visa holders prior to and following the completion period.

(4)  (U) Derivatives: The period of authorized stay for aliens admitted in F-2, J-2, and M-2 status is contingent on the period of authorized stay for the F-1, J-1, and M-1 principal.  You should verify the principal applicant's program dates in SEVIS when considering the period of authorized stay for any derivatives, as well as the admission period granted by CBP to the alien previously admitted in F-2, J-2, and M-2 status.  The derivative may also begin accruing unlawful presence during the principal's period of authorized stay if his or her own conduct or circumstances results in a failure to maintain status, such as engaging in unauthorized work or enrolling in a program of study that is not permitted under such status. (Note: F-2 and M-2 nonimmigrants may not accept employment in the United States in F-2 or M-2 nonimmigrant status.  J-2 nonimmigrants may accept employment if he/she applies for and is granted employment authorization by USCIS.  Note also that F-2, J-2, and M-2 nonimmigrant children are permitted to engage in study, including fulltime study, at any elementary or secondary school (i.e., kindergarten through twelfth grade).  F-2, J-2, and M-2 nonimmigrants may engage in study that is avocational or recreational in nature, including study on a fulltime basis.  F-2, J-2, and M-2 visa holders may also enroll in study that is less than a “full course of study” as “full course of study” is defined in 8 CFR 214.2(f)(6) and 9 FAM 402.5-5(I)(1).). You should apply the guidance in paragraph (1) above when assessing accrual of unlawful presence for F-2, J-2, and M-2 nonimmigrants. 

(5) (U) Examples:

(a) (U) If a J-1 exchange visitor student stops participating in the exchange program on August 16, 2018, prior to the program completion date on August 30, 2018, the alien's unlawful presence would begin to accrue on August 17, 2018.  (Note: The 30 day post completion grace period for J visa holders only applies to those who successfully completed the program.  See 9 FAM 402.5-6(I)(6)) 

(b) (U) If on September 30, 2018, as the result of an application by an alien in F-1 status for another immigration benefit, USCIS found that the alien violated his or her F-1 status on August 16, 2018, then the alien's unlawful presence would begin to accrue on August 17, 2018. However, if on September 30, 2018, as the result of an application by an alien in F-1 status for another immigration benefit, USCIS found that the alien violated his or her F-1 on December 14, 2017, then the alien would start to accrue unlawful presence on August 9, 2018. 

(c) (U) If an F-1 student was admitted for duration of status and after completing her approved course of study (including any permissible period of optional practical training and any applicable grace period) remained in the United States  for two years from 2014 until 2016 when she departed the United States without a formal finding that she violated her status, the student did not accrue unlawful presence as she was admitted for duration of status and was not in the United States on or after August 9, 2018. 

e. (U) Calculating Unlawful Presence:

(1)  Aliens Admitted Until a Date Specified:

(a)  (U) When calculating unlawful presence, the date that the Form I-94 (or any extension) expires is considered authorized and is not counted, and unlawful presence begins accruing the next day. 

(b)  (U) In addition, the date of departure from the United States is not counted as unlawful presence. 

(c)  (U) F, J, and M Status:  See paragraph d above.

(2)  Aliens Admitted for Duration of Status:

(a)  (U) F and J Status:  See paragraph d above.

(b)  (U) All Other NIV Status: The alien begins accruing unlawful presence the day after DHS, an immigration judge, or the BIA makes a formal status violation finding.  See paragraph b, subparagraph (2)(a) above.

(3) (U) Illegal Entrants: Aliens who have entered the United States without inspection and admission or parole begin accruing unlawful presence on the day of the illegal entry.

9 FAM 302.11-3(B)(2)  (U) Time Frames

(CT:VISA-347;   04-18-2017)

a. (U) In General:  

(1)  (U) INA 212(a)(9)(B) went into effect on April 1, 1997, and the statute is not retroactive.  Periods prior to April 1, 1997, therefore, cannot be considered when calculating the period of unlawful presence accrued for purposes of 212(a)(9)(B).

(2)  (U) Neither of the INA 212(a)(9)(B)(i)(I) (180+ days but less than a year) or INA 212(a)(9)(B)(i)(II) (one year+) time frames is cumulative across trips.  The unlawful presence must occur in the same trip to the United States, and periods of unlawful presence accrued on separate trips cannot be added together.  However, separate periods of unlawful presence occurring during the same overall period of stay (e.g., unlawful presence before and after a period of voluntary departure) should be added together to calculate total unlawful presence during a particular stay.

(3)  (U) Both provisions are triggered by departure from the United States, and the bar against reentry applies from the date of departure. 

b. (U) INA 212(a)(9)(B)(i) Departure Prior to Commenced Proceedings Required:  The three-year bar of INA 212(a)(9)(B)(i)(I) applies only to aliens who left the United States voluntarily before the DHS commenced proceedings against them.  If the alien was (1) unlawfully present for a period of more than 180 days but less than a year and (2) was placed in proceedings before the alien's departure (3) those proceedings concluded without a removal, the alien would not be inadmissible under the three-year bar of INA 212(a)(9)(B)(i)(I). 

c.  (U) INA 212(a)(9)(B)(i)(II) Departure at Any Time:   The 10-year bar under INA 212(a)(9)(B)(i)(II) does not contain the same language as the three-year bar under INA 212(a)(9)(B)(i)(I) relating to the alien having departed voluntarily prior to commencement of removal proceedings.  Thus, an alien who departs the United States after having been unlawfully present for a period of one year or more subsequent to April 1, 1997, is barred from returning to the United States for 10 years, whether the departure was before, during, or after removal proceedings and regardless of whether the alien departed on his or her own initiative or under removal order.  The one exception to this rule (see also INA 212(a)(9)(B)(v)) is that an alien cannot become inadmissible under INA 212(a)(9)(B)(i)(II) solely by virtue of a departure and return to the United States undertaken pursuant to a valid grant of advance parole based on the alien’s pending application for adjustment of status.  Note that this does not preclude a trip under a grant of advance parole from being considered a “departure” for any other purposes under the INA, nor does it call into question the applicability of any other inadmissibility ground.  On the contrary, it is well settled that an alien who leaves the United States and returns under a grant of advance parole is subject to those grounds of inadmissibility that may apply, rather than grounds of deportability, once parole is terminated.  (See Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012.)

9 FAM 302.11-3(B)(3)  (U) Asylee Exception

(CT:VISA-347;   04-18-2017)

a. (U) In General:  INA 212(a)(9)(B)(iii)(II) provides that no period of time in which an alien has a bona fide application for asylum pending should be taken into account when calculating the period of unlawful presence, unless during such period the alien was employed in the United States without authorization.   DHS has determined that an application for asylum that has an arguable basis in law or fact, and is not frivolous, whether or not approvable, is a bona fide application for purposes of the exception set forth in INA 212(a)(9)(B)(iii).  The decision regarding whether or not an asylum claim is frivolous is reserved to an Immigration Judge or the Board of Immigration not an asylum claim is frivolous is reserved to an Immigration Judge or the Board of Immigration Appeals.  (See 8 CFR 208.20.)

b. (U) Confirming Bona Fide Application for Asylum: 

(1)  (U) If a visa applicant who would otherwise be inadmissible for a visa under INA 212(a)(9)(B) claims the benefit of the bona fide asylum exception, you should first determine whether the alien engaged in unauthorized employment while the asylum claim was pending, and if any part of such employment occurred on or after April 1, 1997.  (See  paragraph c below.)  If so, the alien would not be eligible for the bona fide asylum exception, and he or she should, therefore, be refused under INA 212(a)(9)(B).  If the applicant did not engage in authorized employment, it will then be necessary to determine whether or not DHS determines the asylum claim was not “bona fide.” 

(2)  Unavailable

(a)  (U) The alien's complete name, date of birth, and "A" number (DHS file number);

(b)  (U) When and where the alien lived in the United States;

(c)  (U) When and where the alien filed the asylum application;

(d)  (U) Whether the alien worked in the United States;

(e)  (U) If the alien worked in the United States, whether DHS had authorized such employment and, if so, what type of authorization documents the alien had been given;

(3)  (U) You may presume the application to have been bona fide if the post receives no report from the "HQDHS for Asylum Office" within 60 days from the date of the referral.

c.  (U) Work Without Authorization After April 1, 1997, Bars Use of Asylee Exception: 

(1)  (U) Under INA 212(a)(9)(B)(iii)(II), an alien is entitled to the exception for bona fide asylum applicants only if the alien has not worked without authorization while such application is/was pending.  Because INA 212(a)(9)(B) only went into effect on April 1, 1997, however unauthorized employment prior to that date should not count against the alien.  Therefore, only unauthorized employment occurring on or after April 1, 1997, will disqualify the alien from being eligible for the bona fide asylum exception in INA 212(a)(9)(B)(iii)(II).

(2)  (U) Prior to seeking the DHS confirmation that the asylum application was bona fide, you should interview the applicant with particular attention to questions relating to possible unauthorized employment by the alien.  If the alien has engaged in unauthorized employment during the pendency of the asylum application, and if any portion of the unauthorized employment occurred on or after April 1, 1997, then the alien would be ineligible for the exception and no purpose would be served in submitting the case to DHS for a determination of whether the asylum claim was bona fide.

(3)  (U) You should note that aliens who apply for asylum may be able to obtain work authorization from DHS if their application is pending for more than 180 days even if they are not in a status that would normally allow employment.  In such cases, the alien will receive an “employment authorization document” (EAD) from DHS.  Posts should, therefore, examine the facts carefully when determining whether or not a particular employment was not authorized. 

9 FAM 302.11-3(B)(4)  (U) Other Exceptions

(CT:VISA-347;   04-18-2017)

a. (U) Minors:  Any period of time that an alien spends unlawfully in the United States while under the age of 18 does not count toward calculating the accrual of unlawful presence for purposes of INA 212(a)(9)(B). 

b. (U) Family Unity:  Any period of time in which an alien is the beneficiary of the family unity protection of Section 301 of the Immigration Act of 1990 (IMMACT 90) would not count toward calculating the accrual of unlawful presence for purposes of INA 212(a)(9)(B).  Alien beneficiaries of such protection must maintain their status by regularly applying to re-register. 

c.  (U) Battered Spouses and Children:  Battered spouses and children benefitting under INA 204(a)(1)(A)(iii)(I)and INA 212(a)(6)(A)(ii) for immigrant visas may not accrue unlawful presence if there is a substantial connection between the battering or cruelty and the violation of the terms of the alien’s nonimmigrant visa.  In this context, the abuse must have started before and led to the alien's accrual of unlawful presence.  This requires, at a minimum, establishing the dates of arrival and termination of the authorized stay, as well as the timing of the abuse and its relationship to the continued stay beyond that date. 

d. (U) Victims of Severe Form of Trafficking in Persons:  INA 212(a)(9)(B)(i) will not apply to an alien who demonstrates that a severe form of trafficking (as that term is defined in 22 U.S.C. 7102) was at least one central reason for the alien’s unlawful presence in the United States. 

9 FAM 302.11-3(B)(5)  (U) “Tolling” for Good Cause

(CT:VISA-347;   04-18-2017)

a. (U) “Tolling” is a legal doctrine which allows for the pausing or delaying of the running of the period of time set forth by a statute of limitations.  Subparagraph (iv) of INA 212(a)(9)(B) provides for "tolling" for up to 120 days of a possible period of unlawful presence during the pendency of an application to change or extend NIV status.  This subparagraph applies only to possible inadmissibility under subsection INA 212(a)(9)(B)(i)(I).  The tolling is only permitted if the alien is lawfully admitted to or paroled into the United States, has filed a nonfrivolous application for a change or extension of status prior to the date of expiration of the authorized period of stay, and has not been employed without authorization in the United States before or during the pendency of such application, but not to exceed 120 days.

b. (U) DHS has inferred that the "120 days" limitation was probably predicated on an assumption that they would be able to adjudicate applications for change or extensions of status within that time frame.  Due to DHS backlogs, however, some cases have been pending as long as six months or more, during which the applicants could incur the three or 10-year penalties through no fault of their own if only the first 120 days were tolled and the application was ultimately denied.  Therefore, for all cases involving potential inadmissibility under INA 212(a)(9)(B) whether under the three-year bar of 212(a)(9)(B)(i)(I) or the 10-year bar of INA 212(a)(9)(B)(i)(II), DHS has decided to consider all time during which an application for extension of stay (EOS) or change of nonimmigrant status (COS) is pending to be a period of stay authorized by the Secretary of Homeland Security provided:

(1)  (U) The application was filed in a timely manner; i.e., before the expiration date of the Form I-94, Arrival and Departure Record;

(2)  (U) The application was "nonfrivolous"; and

(3)  (U) The alien has not engaged in unauthorized employment (whether before or after April 1, 1997).

(4)  (U) Although INA 212(a)(9)(B) did not go into effect until April 1, 1997, and the law is not retroactive, unauthorized employment prior to April 1, 1997, will render an alien ineligible for the nonfrivolous COS and/or EOS exception because aliens who have engaged in unauthorized employment are generally not eligible for change or extension of nonimmigrant stay, and therefore, an application under such circumstances should generally be considered frivolous.

c.  (U) To be considered "nonfrivolous" the consular officer must find that the application had an arguable basis in law and fact and must not have been filed for an improper purpose (e.g., as a groundless excuse for the applicant to remain in activities incompatible with his or her status).  It is not necessary to determine that the DHS would have approved the application for it to be considered nonfrivolous.

9 FAM 302.11-3(C)  (U) Advisory Opinions (AO)

(CT:VISA-347;   04-18-2017)

(U) An AO is not required for a potential INA 212(a)(9)(B) ineligibility; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from CA/VO/L/A.

9 FAM 302.11-3(D)  (U) Waiver

9 FAM 302.11-3(D)(1)  (U) Waivers for Immigrants

(CT:VISA-379;   06-09-2017)

a. (U) In General: An applicant for an IV who is inadmissible under INA 212(a)(9)(B) may seek a waiver from DHS under INA 212(a)(9)(B)(v) if: (1) the alien is the spouse, son, or daughter of a U.S. citizen or lawful permanent resident; and (2) The Secretary of Homeland Security is satisfied that denying the alien admission to the United States would result in extreme hardship to the U.S. citizen or lawful permanent resident spouse or parent of such alien.

b. (U) I-601-A Provisional Waiver of Unlawful Presence:

(1) (U) In General: All IV applicants unlawfully present in the United States who would be found ineligible for an IV by a consular officer at the time of their IV interview solely under INA 212(a)(9)(B) may apply for a provisional unlawful presence waiver (provisional waiver) of this ineligibility prior to leaving the United States for their immigrant visa interview.  Applicants seeking a provisional waiver must file a Form I-601-A provisional unlawful presence waiver application with USCIS.  On August 29, 2016, USCIS expanded the provisional unlawful presence waiver process to all IV categories with a qualifying relationship to a U.S. citizen or lawful permanent resident.  If a consular officer identifies any other ground(s) of ineligibility during the immigrant visa interview, an approved Form I-601-A would no longer be deemed valid.

(2)  (U) Eligibility:

(a)  (U) An alien may be eligible to apply for a Form I-601-A provisional unlawful presence waiver with USCIS, if the individual meets the following criteria:

(i)     (U) Is physically present in the United States at the time of filing and appears for biometrics collection at a USCIS Application Support Center;

(ii)    (U) Is at least 17 years of age at the time of filing;

(iii)    (U) Is the beneficiary of an approved Form I-130, Petition for Alien Relative, Form I-140, Immigrant Petition for Alien Worker or a Diversity Visa Program selectee. [Please note that fiancé(e) beneficiaries are ineligible to file Form I-601-A];

(iv)   (U) Has a case pending with the Department of State based on:

·         (U) An approved immigrant visa petition, for which the Department of State IV processing fee has been paid;

·         (U) Selection by the Department of State to participate in the Diversity Visa (DV) Program under INA 203(c) for the fiscal year for which the alien is registered; or

·         (U) Eligibility as a derivative beneficiary under INA 203(d) of an approved immigrant visa petition or of an alien selected to participate in the DV Program or other appropriate evidence.

(v)    (U) Is, or will be at the time of the IV interview, ineligible for an immigrant visa based solely on unlawful presence in the United States under INA 212(a)(9)(B)(i)(I) or INA 212(a)(9)(B)(i)(II);

(vi)   (U) Will depart from the United States to obtain the immigrant visa;

(vii)   (U) Has a U.S. citizen or LPR spouse or parent who would experience extreme hardship if DHS refused to admit the IV applicant to the United States and otherwise merit favorable exercise of discretion for a provisional waiver in accordance with INA 212(a)(9)(B)(v); and

(viii)  (U) Meets all other requirements for the provisional unlawful presence waiver as stated in 8 CFR 212.7(e), and the Form I-601-A and its instructions.

(b)  (U) An alien is ineligible for a provisional unlawful presence waiver if the applicant is otherwise ineligible in accordance with 8 CFR 212.7(e), or the Form I-601-A and its instructions.

(3)  (U) USCIS Processing and NVC Scheduling:

(a)  (U) Those interested in applying for the provisional unlawful presence waiver must submit the Form I-601-A directly to USCIS, which will use the Consular Consolidated Database (CCD) to confirm that a petition was filed or that an applicant is a selectee under the DV Program.     

(b)  (U) Upon receipt of an I-601-A application, USCIS will notify the NVC, or the Kentucky Consular Center (KCC) if related to a DV case, that an applicant has applied for an I-601-A provisional unlawful presence waiver.  NVC will notify the applicant that it will not schedule the case for an IV appointment until USCIS notifies NVC of its adjudication decision.  Once USCIS notifies the applicant and NVC of its decision on the I-601-A application, NVC will schedule the case of any documentarily-qualified applicant for an IV appointment, notify the applicant of the appointment date, and forward the case to post for processing.  In the IV case file sent to post, NVC will include a post supplement report with information confirming whether USCIS processed an I-601-A for the applicant and whether USCIS approved or denied the provisional unlawful presence waiver.  IV case files will not include a stand-alone I-601-A approval or denial document.  NVC will also record the USCIS decision as a case note for the consular officer to see in the CCD’s IVIS Beneficiary Report and posts may use the USCIS receipt number to verify the I-601-A decision in CLAIMS via the DHS Person Centric Query System (PCQS) under Other Agencies/Bureaus in CCD. USCIS will notify KCC of any I-601-A decision associated with a DV application.  KCC will, in turn, contact the appropriate consular section. 

(c)  (U) Follow-to-Join Applicants:  To qualify for an I-601-A waiver, an applicant must demonstrate an extreme hardship to a U.S. citizen or LPR spouse or parent would result if the U.S. government refused to admit the alien to the United States. For this reason, a derivative spouse may only to be able to demonstrate a qualifying extreme hardship after the principal applicant obtains LPR status.  FTJ applicants are instructed to appear with a USCIS approval notice.  You will then verify I-601-A approval through PCQS.

(4)  Unavailable 

(5)  (U) Revocation of Approved I-601-A:

(a)  (U) The approved provisional unlawful presence waiver is revoked automatically if:

(i)     (U) A consular officer determines that the applicant is ineligible to receive an IV under any section of law other than INA 212(a)(9)(B)(i)(I) or INA 212(a)(9)(B)(i)(II); or

(ii)    (U) The immigrant visa petition approval associated with the provisional unlawful presence waiver is at any time revoked, withdrawn, or rendered invalid but not otherwise reinstated for humanitarian reasons or converted to a widow or widower petition; or

(iii)    (U) The immigrant visa registration is terminated and has not been reinstated in accordance with INA 203(g); or

(iv)   (U) The applicant, at any time after filing but before approval of the provisional unlawful presence waiver takes effect enters or attempts to reenter the United States without being inspected and admitted or paroled.

(b)  (U) If a consular officer determines that the provisional unlawful presence waiver is revoked, the consular officer should enter “I-601-A revoked” into the case notes, explain why the provisional unlawful presence waiver is revoked, and then refuse the applicant on all appropriate grounds that exist (including unlawful presence using the code “9B1” or “9B2” in IVO).  If the underlying petition remains valid after the I-601-A is revoked, the applicant may file an I-601, Application for Waiver of Grounds of Inadmissibility, using existing procedures for all ineligibilities with USCIS. 

(c)  (U) Posts with a question regarding a specific I-601-A decision should contact NVC (or KCC if it is a DV case), which will liaise with USCIS.  Please remember, however, that only USCIS has authority to adjudicate the I-601-A provisional unlawful presence waiver application and determine whether the grounds for extreme hardship submitted as justification for I-601-A approval merit favorable exercise of discretion by USCIS.

(6)  (U) Processing Applicants with Approved I-601-A:

(a)  (U) The provisional unlawful presence waiver process allows a consular officer to issue an IV to an applicant with an approved I-601-A who is otherwise qualified for the IV and has no other ineligibilities beyond INA 212(a)(9)(B)(i).  Prior to issuing the immigrant visa, consular officers must confirm and note the I-601-A approval.  For legal, accountability, and tracking purposes, a consular officer must make a formal finding of ineligibility and refuse an approved I-601-A applicant in IVO using the 9B1W refusal code for applicants ineligible under INA 212(a)(9)(B)(i)(I) and the 9B2W refusal code for applicants ineligible under INA 212(a)(9)(B)(i)(II) except in conditional visa classes (CR) for which a standard 9B1 or 9B2 refusal code would be used.  These codes may be used ONLY for cases with an approved I-601-A for which no other ineligibility exists.  After refusing the approved I-601-A applicant using the appropriate 9B1W or 9B2W refusal code, except for CR applicants, the consular officer may immediately proceed to print authorize the case by waiving the refusal in IVO. 

(b)  (U) Consular officers should not send a CLOK Deletion request to have the 9B1W or 9B2W hits removed.  Both hits will expire in CLASS after one month and will not replicate to CBP’s TECS system.  U.S. Customs and Border Protection therefore will not see the hits at the port of entry when the applicant seeks admission to the United States as an immigrant.  Because USCIS will notify NVC or KCC electronically of its I-601-A decisions, posts do not have to include information regarding the I-601-A approval in the applicant’s IV packet.  Posts must, however, annotate the visa to read “Waiver Section 212(a)(9)(B)(v),” which will inform the CBP inspector at the port of entry of the waiver approval.  CBP will also be able to access the waiver information in the CCD and CLAIMS if necessary.

(7)  (U) Processing Applicants with Denied I-601-A: Those applicants denied an I-601-A may not appeal the USCIS decision, but may file a new I-601-A.  If the applicant chooses not to submit a new I-601-A to USCIS, the applicant must leave the United States to appear for his or her IV interview and submit a Form I-601, Application for Waiver of Grounds of Inadmissibility, to USCIS after a consular officer has found the applicant ineligible for a visa under INA 212(a) or any other section of law. 

9 FAM 302.11-3(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-347;   04-18-2017)

(U) Nonimmigrants who are inadmissible under INA 212(a)(9)(B) may apply for an INA 212(d)(3)(A) waiver through the Admissibility Review Information Service (ARIS) via an “ARIS Waiver Request Form”.  (See 9 FAM 305.4.)

9 FAM 302.11-3(E)  Unavailable

9 FAM 302.11-3(E)(1)  Unavailable

(CT:VISA-272;   12-20-2016)

a. Unavailable

b. Unavailable

9 FAM 302.11-3(E)(2)  Unavailable

(CT:VISA-272;   12-20-2016)

Unavailable      

Unavailable

9 FAM 302.11-4  (U) Individuals Unlawfully Present After Previous Immigration Violation - INA 212(a)(9)(c)

9 FAM 302.11-4(A)  (U) Grounds

(CT:VISA-347;   04-18-2017)

(U) Under INA 212(a)(9)(C), any alien who:

(1)  Has been unlawfully present in the U.S. for an aggregate period of more than one year, or

(2)  Has been ordered removed under section 235(b)(1), or other provision of law and who enters or attempts to reenter the United States without being admitted or attempts to enter without inspection is inadmissible. 

9 FAM 302.11-4(B)  (U) Application

9 FAM 302.11-4(B)(1)  (U) In General

(CT:VISA-584;   05-17-2018)

a. (U) This provision applies to aliens who, having previously been unlawfully present for more than a year (in the aggregate) or having been previously removed, subsequently enter or try to enter the United States without being admitted.  See 9 FAM 302.11-3(B)(1) for the interpretation of unlawful presence, although the exceptions for 9B at 9 FAM 302.11-3(B)(3) to (5) do not apply to 9C.  You should note that the aggregate year of illegal presence must have occurred after April 1, 1997 to support a 212(a)(9)(C)(i)(I) or 9C1 finding.  A prior removal, however, may have occurred at any time to support a 212(a)(9)(C)(i)(II) or 9C2 finding.  The triggering event for both—the entry or attempted entry into the United States without admission, must have occurred after April 1, 1997. 

b. (U) An “admission” in this context is preceded by an inspection by CBP.  Therefore, an individual who has either an aggregate year of illegal presence or a prior removal may trigger a 212(a)(9)(C)(i) ineligibility by making a false claim to U.S. citizenship at a Port of Entry (POE).  U.S. citizens are not subject to inspection and admission at POEs, therefore, the attempted entry via a false claim to citizenship has the same effect as an attempted entry without inspection outside of a POE.

9 FAM 302.11-4(B)(2)  (U) Effect of INA 212(a)(9)(C) Ineligibility

(CT:VISA-347;   04-18-2017)

(U) An alien subject to INA 212(a)(9)(C) is permanently inadmissible and ineligible for a visa.  Such an alien may, however, seek permission to reapply or consent to reapply.  See 9 FAM 302.11-4(D).

9 FAM 302.11-4(C)  (U) Advisory Opinions

(CT:VISA-272;   12-20-2016) 

(U) An AO is not required for a potential INA 212(a)(9)(C) ineligibility; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from CA/VO/L/A.

9 FAM 302.11-4(D)  (U) Waiver

9 FAM 302.11-4(D)(1)  (U) Waivers for Immigrants

(CT:VISA-347;   04-18-2017)

(U) An alien subject to INA 212(a)(9)(C) is permanently inadmissible and ineligible for a visa.  Such an alien may, however, after ten years seek the Secretary of Homeland Security's consent to reapply (CTR, also sometimes referred to as “permission to reapply”) which the alien can obtain through DHS by submitting an Application for Permission to Reapply for Admission into the United States After Deportation or Removal (Form I-212).  If the Secretary of Homeland Security consents, then the inadmissibility no longer applies.  Although the consent to reapply removes the ground of ineligibility, it does not remove the factual circumstances which led to the original finding of ineligibility nor does it affect any other ground of ineligibility.

9 FAM 302.11-4(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-347;   04-18-2017)

a. (U) For nonimmigrant visa (NIV) applicants with a 212(a)(9)(C)(i)(I) or 9C1 ineligibility, the consular officer make seek relief on behalf of the applicant by  submitting an “ARIS Waiver Request Form” through the Admissibility Review Information Service (ARIS).  A consular officer may favorably recommend an NIV applicant ineligible under 9C1 at any time.  This relief is temporary. 

b. (U) When submitting the ARIS request for a 9A ineligibility, post must clearly state, “Post recommends consent to reapply” and provide the reason for recommending in the written comments of the ARIS request.

c.  (U) If 9C1 is the applicant’s only ineligibility and more than ten years have passed since the ineligibility was incurred, the applicant may choose to apply for relief by filing form I-212 with DHS in order to obtain permanent relief, which, if granted, allows for issuance of a full validity visa.

d. (U) For nonimmigrant visa (NIV) applicants with a 212(a)(9)(C)(i)(II) or 9C2 ineligibility, a visa applicant is eligible to seek relief only after the ten year bar has passed.  The applicant is only eligible for relief via filing form I-212 with DHS.  The applicant is not eligible for relief via ARIS.  If the I-212 is granted, it provides permanent relief which allows for issuance of a full validity visa.

9 FAM 302.11-4(E)  Unavailable

9 FAM 302.11-4(E)(1)  Unavailable

(CT:VISA-272;   12-20-2016)

Unavailable

9 FAM 302.11-4(E)(2)  Unavailable

(CT:VISA-272;   12-20-2016)

Unavailable