March 14, 2002
To: ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
INFO HQS USUSCIS WASHDC
From: SECSTATE WASHDC (STATE 50158 - ROUTINE)
Subject: Revised Regulation on Automatic Revalidations
1. SUMMARY. This cable announces important changes in the handling of visa applications of aliens previously entitled to re-enter the US from contiguous territory or adjacent islands based upon automatic revalidation of their expired nonimmigrant visa. As currently implemented, Section 41.112(d) of 22 CFR permits aliens who are traveling in territories contiguous to the mainland U.S. or, in some cases, in adjacent islands and whose visas have expired to re-enter the United States without obtaining a new visa. The alien may do so provided that s/he has been outside the U.S. for not more than thirty (30) days and the alien''s I-94 remains valid. As currently implemented, neither the alien''s country of citizenship nor the question of whether s/he had applied for a new visa while outside the U.S. affects the ability of the alien to re-enter the United States. The amended regulation, which was published in the Federal Register on March 7, 2002 and will be effective as of April 1, will prohibit the re-entry using an automatically revalidated visa of any alien who has applied for a new visa while outside the United States. This change reflects the desire to prevent aliens subject to enhanced security procedures from re-entering the US via automatic revalidation prior to security checks having been completed, but will apply to all aliens otherwise eligible for re-entry via automatic revalidation. Technically, the waiting period for security checks constitutes a 221(g) refusal. Thus the cable emphasizes the importance of strict adherence to proper refusal procedures in these cases. Additionally, it excludes all aliens who are nationals of designated state sponsors of terrorism from being able to re-enter using an automatically revalidated visa. The Department is consulting with the embassies of the countries affected by this change. END SUMMARY.
2. 41.112 Validity of visa. (d). Automatic extension of validity at ports of entry.
(1) Provided that the requirements set out in paragraph (d)(2) of this section are fully met, the following provisions apply to nonimmigrant aliens seeking readmission at ports of entry:
(i) The validity of an expired nonimmigrant visa issued under INA 101(a)(15) may be considered to be automatically extended to the date of application for readmission, and
(ii) In cases where the original nonimmigrant classification of an alien has been changed by USCIS to another nonimmigrant classification, the validity of an expired or unexpired nonimmigrant visa may be considered to be automatically extended to the date of application for readmission, and the visa may be converted as necessary to that changed classification.
(2) The provisions in paragraph (d)(1) of this section are applicable only in the case of a nonimmigrant alien who:
(i) Is in possession of a Form I-94, Arrival-Departure Record, endorsed by USCIS to show an unexpired period of initial admission or extension of stay, or, in the case of a qualified F or J student or exchange visitor or the accompanying spouse or child of such an alien, is in possession of a current Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, or Form IAP-66, Certificate of Eligibility for Exchange Visitor Status, issued by the school the student has been authorized to attend by USCIS, or by the sponsor of the exchange program in which the alien has been authorized to participate by USCIS, and endorsed by the issuing school official or program sponsor to indicate the period of initial admission or extension of stay
authorized by USCIS;
(ii) Is applying for readmission after an absence not exceeding 30 days solely in contiguous territory, or, in the case of a student or exchange visitor or accompanying spouse or child meeting the stipulations of paragraph (d)(2)(i) of this section, after an absence not exceeding 30 days in contiguous territory or adjacent islands other than Cuba;
(iii) Has maintained and intends to resume nonimmigrant status;
(iv) Is applying for readmission within the authorized period of initial admission or extension of stay;
(v) Is in possession of a valid passport;
(vi) Does not require authorization for admission under INA 212(d)(3); and
(vii) Has not applied for a new visa while abroad.
(3) The provisions in paragraphs (d)(1) and (d)(2) of this section shall not apply to the nationals of countries identified as supporting terrorism in the Departments annual report to Congress entitled Patterns of Global Terrorism.
3. Posts must note particularly 2(vii) above relating to an alien not having applied for a visa, and review carefully the procedures for cases of aliens who do apply for a visa mentioned below. The Department determined (as the revised regulation states) that, due to post-9/11 concerns, aliens otherwise eligible for revalidation of their visa and re-entry into the United States on that basis will no longer be able to take advantage of the automatic revalidation procedure if while in contiguous territory or on an adjacent island they apply for a new visa. In order that USCIS inspectors be able to identify such visa applicants for the purpose of refusing their admission, consular officers must closely follow the requirements in 9 FAM 41.121 procedural notes requiring that passports be stamped "application received" when a visa is applied for but not immediately issued for any reason, including any applicable mandatory waiting period for security or other clearances.
4. As clarification of this requirement, Note 4 to 41.112(d) has been revised to read as follows:
N4 Automatic Revalidation of A Nonimmigrant Visa
N4.1 Definition of "Expired Nonimmigrant Visa" With regard to the automatic extension of validity of expired nonimmigrant visas at ports of entry pursuant to 22 CFR 41.112(d), an "expired nonimmigrant visa" means a visa which is no longer valid due to the passage of time or because the maximum number of entries for which the visa is valid has been reached.
N4.2 Certain Aliens Excluded from Use of Automatic Revalidation.
The Department has excluded aliens who apply for new visas during short visits to contiguous territory or adjacent islands and aliens who are nationals of countries identified as state sponsors of terrorism from the benefits of automatic revalidation of an expired nonimmigrant visa.
N4.3 Use of "Application Received" Stamp in Passports of Aliens Excluded from Automatic Revalidation Benefit. Because of the exclusion of aliens who apply for new visas from revalidation benefits, it is especially important that consular officers scrupulously follow the procedures concerning the use of the application received stamp [see 41.121 PN1.2-13 and PN1.2-14], including in cases deferred for an advisory opinion or any other reason [see 41.121 PN3]. The stamp is often the only way an Immigration Inspector at the port of entry will know that an alien has applied for a visa and is thus ineligible for the benefits of 22 CFR 41.112(d).
5. The revised and renumbered Procedural Notes read as follows:
PN1.2-13 Indicate Refusal in Passport
a. Posts must place a stamp in the applicant''s passport to indicate when a visa application is received and refused. The stamp is for record keeping purposes, i.e., it will assist the post in locating chronologically filed applications if the applicant reapplies for a visa. If the applicant applies at a different post, it will immediately alert the officer that the applicant has made a previous application for a visa.
b. The stamp must contain the following text:
U.S. (Embassy/Consulate General/Consulate) (Name of Post)
Application Received on _____________(Date of Application).
c. A passport bearing the above stamp and a subsequently issued visa indicates that the refusal was overcome or a waiver of the ineligibility was granted. Details of a waiver of ineligibility must be annotated on the visa in accordance with 41.113 PN10.
PN1.2-14 Procedures for Placing Refusal Stamp in Passport
The following procedure must be used when stamping the passport to reflect that the applicant has been refused a visa:
(1) The stamp must be placed on the back page of the passport (the page furthest from the front containing the applicant''s biographic data and/or photograph).
(2) The date must be entered with indelible ink by hand or with a date stamp.
(3) If an applicant returns frequently for a new interview with the same passport but is still considered ineligible, the passport need not be stamped each time, though the date of the refusal must be entered each time. The passport must be stamped with a new Application Received stamp after a three-month interval.
6. In connection with 4.112(d), consular officers are to deem an application to have been refused if a visa is not immediately issued.
7. The exclusion from automatic revalidation will apply to aliens who attempt to re-enter the United States on or after April 1, regardless of whether their application for a visa was filed prior to that date.
8. The Department is discussing with USCIS whether additional procedures ought to be utilized to insure that USCIS inspectors at the border may easily determine when an alien is not eligible for automatic visa revalidation. These might include physical cancellation of the existing visa, stamping the alien''s I-94 or even passing relevant lookouts to USCIS electronically. Additional instructions will follow if any of these procedures are adopted for use.
9. CA has prepared the following brief Q&A for use in response to press and public inquiries that might arise following the publication of the Federal Register amendment and the implementation of the new policy:
Q1. What does this revised regulation change?
A1. The revised regulation prohibits aliens who have applied for and been refused visa issuance while outside the U.S. from returning to the United States, even if they are in possession of a valid I-94 form. It also prohibits aliens who are citizens of countries on the State Departments list of State Sponsors of Terrorism from re-entering the U.S. using solely an I-94 form if their visa has expired.
Q2. Why is this change being implemented?
A2. The U.S. Government has undertaken a variety of efforts since September 11 to enhance border security and ensure that only individuals eligible to enter the United States are allowed entry. This is the latest of these efforts.
Q3. How, specifically, do you think that this change will enhance border security?
A3. The previous regulation allowed individuals whose visas had expired but whose I-94 forms remained valid to re-enter the U.S. without obtaining a new visa. The previous regulation made limited distinctions among citizens of various nationalities, and aliens who applied for and were denied a new visa were nonetheless permitted to re-enter the United States.
The changes we are now implementing enhance border security by (a) requiring that aliens from state sponsors of terrorism obtain a new visa (and thus go through a new set of interviews, computer checks, etc.) before re-entering the United States, and (b) ensuring that people who were found by one of our overseas embassies or consulates to be ineligible for a visa cannot get around such a finding by re-entering the U.S. using solely their I-94 form.
10. Minimize considered.