With the raging of the pandemic, cancelled flights, and travel restrictions, thousands of visitors have been stranded in the United States. While some legal relief has been provided for delayed departures for those who entered without visas under the Visa Waiver Program, very little has been discussed about those who entered the US with visas and have been unable to leave within the allotted time frame.
As a reminder, holders of B-1 and B-2 visas are usually granted 6 months of authorized stay when they arrive in the US. If a person overstays this authorized time frame, the visa becomes void under Section 222(g) of the Immigration and Nationality Act. What this means is that even if the visa itself has validity time remaining, it nevertheless becomes null and cannot be used. For example, if in June 2019 a B visa was issued for 10 years through June 2029, and the visa holder entered the US on January 31, 2020, and remained beyond the authorized stay of July 31, 2020 indicated in the I-94 form, the visa is invalidated and generally, cannot be used again. This means that the individual must return to the home country – the country of one’s nationality – and apply for a new visa.
This section of the law, 222(g), is little known. It flies under the radar because there are no official statistics on how often this occurs and individuals are not denied visas under this section of the law (unless they apply for a new visa in the wrong country), i.e., one is not handed a denial sheet by the consular officer referencing Section 222(g). However, 222(g) is indirectly raised by the Customs and Border Protection inspector when an individual shows up with a facially valid but legally invalid visa. The person is denied entry under Section 212(a)(7) of the Immigration and Nationality Act for not having proper entry documentation and the visa is revoked.
Readers of this blog may know that once a visa is invalidated, it may be very difficult to convince the consular officer to issue another visa after spending a protracted period of time in the US – regardless of the circumstances. The visa is usually denied under Section 214(b), along with the bitter consular refrain to re-apply in 2-3 years “after you re-establish ties to your” home country. Thankfully, there are exceptions to this 222(g) nullification rule.
The most prominent and frequently used exception is the timely and nonfrivolous application for an extension of status in the United States. So in the above example, as long as the visa holder a) filed an I-539 extension application to USCIS before July 31, 2020, citing to legitimate grounds for the extension (e.g., the pandemic made it impossible to return home) and b) did not violate the terms of the status (e.g., illegally working), the stay of the individual becomes authorized during the pendency of the application. Even if the individual must leave the United States before a decision on the application is made and there was no violation of status, the visa will remain valid. If the individual’s extension of status application is denied and the I-94 expired, then the visa may become invalidated under Section 222(g).
There are other exceptions. Even if the visa was invalidated under Section 222(g), Customs and Border Protection at the airport or other port-of-entry has the discretion to process an “unforeseen emergency waiver” under Section 212(d)(4) of the Immigration and Nationality Act. Humanitarian or significant public interest parole may also be granted by CBP. A new visa can be applied for in a third country (not the country of nationality) if there are “extraordinary circumstances”.
Obviously, the stakes are high. Whether it will become necessary to apply for another visa and possibly encounter a refusal or to be able to continue to use the current visa can be critically important. Visiting children and grandchildren, being able to study, negotiating contracts or opening a business – each could be negatively impacted for a long, long time by a lack of planning now. Contact us to discuss your situation.