New INS memo allows visitors to leave US while extension request ispending - Immigration Corner

Dear Atty. Gurfinkel:

I entered the US for a vacation and to visit relatives on my ten year/multiple visitor's visa. At the airport, the INS Officer gave me six months on my I-94 (white arrival/departure record). Before the expiration of that six months, I filed for an extension. When I got the receipt for my extension from INS, it stated that INS is taking almost eight months to process extension requests.

I want to leave the US now and cannot wait any more for the INS decision. But, I heard that if I leave the US before INS makes a decision on my extension request, then my existing 10 year/multiple visitor's visa will be canceled. Is there anything that I can do to be able to leave the US without waiting for the INS' decision on my extension, and also "protect" my existing visitor's visa from being canceled or voided?

Very Truly yours,

DL

Dear DL:

On March 3, 2000, INS Headquarters in Washington, D.C., released a Memorandum allowing visitors with pending extension requests to leave the US without jeopardizing their existing visas, provided certain requirements are met. Thus, many visitors who are finding themselves "stuck" in the US waiting for a decision on their extension, may leave the US, before INS' decision.

By way of background in 1996, the US Congress passed a law, Section 222(g), which stated, in essence, that if an alien entered the US on a non-immigrant visa (i.e. visitor's visa) and remained in the US beyond the period of his authorized stay (the time listed on the I-94 by the INS Officer at the airport), his existing visa would be void, and he would no longer be able to use that visa to enter the US, even if it was a ten year/multiple. Instead, he would be required to return to his home country, to apply for a new visa, so he could enter the US again.

In a Memorandum dated January 14, 1999, the INS stated that as long as a person filed for an extension of stay before his original period of authorized stay expired, the person would be considered to be "in status," even if the extension was approved after the date on his I-94. However, that same January 14, 1999 Memorandum stated that if the person thereafter left the US before a decision on his extension request, then his existing non-immigrant visa could be voided or canceled by INS.

Those who filed for extension before their I-94 expired found themselves in a situation where they wee required to wait in the US until INS made a decision on their extension request, especially where it was taking INS almost eight months to process the extension request.

The INS Memorandum of March 3, 2000, helps relieve this problem by amending the January 14, 1999 Memorandum. Under this recent Memorandum, people may leave the US before a decision is made on their extension request, without jeopardizing their existing visitor's visa.

The new INS Memorandum provides in relevant part as follows:

1. The INS has determine that a person would be considered "in status" or in a "period of stay authorized" by INS during the "entire period during which a timely filed, nonfrivolous application [for extension of status] has been pending with the Service, provided that the alien has not engaged in any unauthorized employment" in the US during his "visit."

2. The extension of status must have been "timely filed," meaning that it was filed before the expiration date on a persons' I-94.

3. A person may prove (or establish) that his application for extension of status was timely filed by submitting on their next trip back to the US a copy of his filing receipt for the extension, a canceled check payable to the INS for the extension of status, or other credible evidence that the request for extension was filed before the expiration date of the I-94.

4. The application for extension of status must be 'nonfrivolous', meaning that the application "must have an arguable basis in law or fact and must not have been for an improper purpose." This means you need a good and valid reason for the extension request.

5. The alien must not have worked without INS authorization before the application for extension of status was filed or while it was pending. INS can take a "sworn statement" from the alien on the alien's next trip back to the US concerning unauthorized employment. Further, aliens who make misrepresentations (or lie) about unauthorized employment could be subject to a finding of fraud by INS based on the 'willful misrepresentation of a material fact.' Therefore, do not work during your visits!

6. If the above requirements have been met (i.e. filing for an extension before your I-94 expires, and not working while on a visitor's visa), then if a person leaves the US after their I-94 expires and before a decision the application has been issued, "they are NOT subject to Section 222(g)..."

Accordingly, if you were one of those visitor's who filed an extension request before your I-94 expires, but have been forced to wait for a decision, this new INS Memo may finally allow you to leave. If you have any questions about whether you have satisfied the requirements of this INS Memo, I would strongly suggest that you seek the advice of a reputable attorney, who can analyze your situation, to make sure that it is "safe" for you to now leave the US.

Michael J. Gurfinkel has been an attorney for 20 years. He has always excelled in school: Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California. He is also a member of the American Immigration Lawyers Association and the Immigration Section of the Los Angeles County Bar Association.

His offices are located at 219 North Brand Boulevard, Glendale, California, 91203 Telephone: (818) 543-5800. His Makati office is located at Heart Tower, Unit 701, 108 Valero Street, Salcedo Village, Makati, Philippines; Telephone: 894-0258 or 894-0239.

(This is for informational purposes only, and reflects the firm's opinions and views on general issues. No prediction, warranty or guarantee can be made about the results of any case. Should you need or want legal advice, you should consult with and retain counsel of your own choice.)