t5 b65 gao visa docs 6 of 6 fdr- mar 02 dos cable- revised regulation on automatic re validations...

8/14/2019 T5 B65 GAO Visa Docs 6 of 6 Fdr- Mar 02 DOS Cable- Revised Regulation on Automatic Re Validations 856

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'M E M B A S S Y B E L G R A D EA M E M B A S S Y D U S H A N B EA M E M B A S S Y KABUL S*\-INFO H Q S U S INS W A S H D C ^UNCLAS S T A T E 0 5 0 1 5 8

V I S A SE .0 .1 2 95 8: N/ AT A G S : CVISS U B J E C T : R EV I SED R E G U L A T I O N O N A U T O M A T I C R EV A LI D A T I O NS1. S UM MA RY . T his cable announces important changes inthe handling of visa applications of aliens previouslyentitled to re-enter the US f rom contiguous territory oradjacent islands based upon automatic revalidation oftheir expired nonimm igrant visa. As currentlyimplemented, Section 41.112{d) of 22 C FR permits alienswho are traveling in territories contiguous to themainland U.S . or, in som e cases, in adjacent islands andwhose visas have exp ired to re-enter the United S tateswithout obtaining a new visa. The alien may do soprovided that s/he h as been outside the U . S . for notmore than thirty (30) days and the alien's 1-94 remainsvalid. As currently implemented, neither the alien'scountry of citizenship nor the question of whether s/heha d applied for a new visa while outside the U . S .affects th e ability of the alien to re-enter the UnitedStates. T he amended regulation, which w as published inthe Federal Register on M arch 7 , 2 0 0 2 and wil l beeffect ive as of Ap ril 1, wil l prohibit the re-entryusing an automa tically revalidated v isa of any alien whoha s applied for a new visa while outside the UnitedS tates. This change reflects the desire to preventaliens su bject to enhanced secu rity procedures from re -entering the US via automatic revalidation prior tosecurity chec ks having been completed, but will apply toall aliens otherwise eligible fo r re-entry via automaticrevalidation. Technically, th e waiting period fo r

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view telegram[3]security checks constitutes a 22 Kg) refusal. Thus th ecable emph asizes the importance o f strict adh erence toproper refusal p rocedures in these cases. Additionally,it exclud es all aliens wh o are nationals of designatedstate sponsors of terrorism from being able to re-enterusing an automatically revalidated visa. Th e D epartmentis consulting with the embassies of the countriesaffected by this change. END S U M M A R Y .2.41.112 Validity of visa. (d). Autom atic extension ofvalidity at ports of entry.(1) Provided that the requirements set out in paragraph(d)(2) of this s ection are fully met, the followingprovisions apply to nonimmigrant aliens seek ingreadmission at ports of entry:(1 ) Th e validity of an exp ired nonimmigrant visa issuedunder INA 101(a)(15) may be considered to beautomatically extended to the date of application fo rreadmission. and(ii) In cases where th e original nonimmigrantclassification of an alien has been ch anged by INS toanother nonimmigrant classification, the validity of anexpired or unex pired nonimmigrant visa may beconsideredto be automatically extended to the date of applicationfor readmission, and the visa may be converted asnecessary to that changed classification.( 2 ) The provisions in paragraph ( d ) { 1 ) of this sectionare applicable only in the case of a nonimmigrant alienwho:(i) Is in possession of a Form 1-94, Arrival-DepartureRecord, endorsed by INS to show an unexp ired period ofinitial admission or extension of stay, or, in the caseo f a qualified F or J student or exch ange visitor or theaccompanying spouse or child of such an alien, is inpossession of a current Form 1-20, Certificate ofEligibility fo r Nonimmigrant Student Status, or FormIAP-66, Certificate of Eligibility fo r Exch ange VisitorStatus, issued by the school th e student has beenautho rized to attend by INS, or by the sponsor of theexchange program in which the alien has been autho rized

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view telegram[3]to participate by INS, a nd endorsed by the issuings c h o o l off ic ial or pro gram spo nsor to indicate theperiod of initial admission or extension of stayauthorized by INS;(ii) Is applying for readm ission after an abs ence notexceeding 30 d a y s solely in contiguou s territory , or, inth e case of a student or exchange visitor oraccompanying spo use or child m eeting the stipulations ofparag raph (d)(2)(i) of this section, after an absenc enot exceeding 30 days in contiguous terri tory oradjacent islands other than Cuba;(iii) Has maintained and intends to resume nonimmigrantstatus;(iv) Is applying fo r readmission within th e authorizedperiod of initial admission or extension of stay;( v ) Is in possession of a valid passport;(vi) D oes not require authorization fo r admission underI N A 2 1 2 ( d ) ( 3 ) ; a n d(vii) Has not applied for a new visa whi le abroa d.(3) The provisions in paragraphs ( d ) ( 1 ) and (d)(2) ofthis section shall not apply to the nationals ofcountries identified as suppo rting terro rism in theDepartments annual report to Congress entitled Patternso f Global Terrorism .3. Posts must note part icularly 2(vii ) above relating toa n alien not having applied for a visa, and reviewcareful ly the procedures f o r cases of aliens who doa p p l y for a visa mentioned below. The Departmentdetermined (as the revised regulation states) that , dueto post -9 /11 co nce rns, aliens otherw ise eligible fo rrevalidation of their visa and re-entry into th e UnitedStates on that basis wil l no longer b e able to takeadvantage of the autom atic revalidation proc edure i fwhile in co ntiguous terri tory or on an ad jacent is landthey apply for a new visa. In order that IN S inspectorsb e able to identify such visa applicants fo r th e purposeo f refusing their admission, consular off icers must

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view telegram{3]closely fol low th e requirements in 9 F A M 41.121procedural notes requiring that passports be stamped"application received" when a visa is applied for butnot immediately issued for any reason , including an yapplicable mandatory waiting period fo r security orother clearances.4. As clarification of this requirement, Note 4 to41.112(d) has been revised to read as follows:N4 Autom atic Reval idation of A Nonimmigrant VisaN4.1 Definition of "Expired Nonimm igrant Visa"With regard to the automatic extension of validity ofexpired nonimmigrant visas at po rts of entry pursuant to22 CFR 41.112(d), an "expired nonimmigrant visa" means avisa which is no longer valid du e to the p assage of timeo r because the maximum number of entries fo r which th evisa is valid has been reached.N4.2 Certain A l iens Excluded from Use of Au tomaticRevalidation.The Department has excluded aliens who apply fo r newvisas during short visits to contiguous territory oradjacent islands and al iens who are nationals ofcountries identi fied as state spons ors of terrorism f romthe benefits of automatic revalidation of an expirednonimmigrant visa.N4.3 Use of "Application Received " Stamp in Passports ofAliens Excluded f rom Automat ic Reval idat ion Benefit.Because of the ex clusion of aliens who apply for newvisas from reval idation benefits, it is especiallyimportant that consular off icers scrupulously follow th eprocedures conc erning the use of the applicationreceived stamp [ s e e 41.121 PN1.2-13 and PN1.2-14],including in cases deferred for an a dvisory opinion oran y other reason ( s e e 41.121 PN3]. The stamp is oftenthe only way an Immigration Inspector at the p ort ofentry will know that an alien has applied for a visa andis thus ineligible for the benefits of 22 CFR 41.112(d).5. The rev ised and renumbered Procedural Notes read asfollows:

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view_telegram[3]PN1.2-13 Indicate Refusal in Passporta. Posts must place a stamp in the applicant's passportto indicate when a visa application is received andrefused. The stamp is for record keeping purposes,i.e., it will assist the post in locatingchronologically filed applications if the applicantreapplies for a visa. If the applicant applies at adifferent post, it wil l immediately alert the officerthat th e applicant has made a previou s application fo r avisa.b. The stamp must be = inch in height and contain th efollowing text:U.S. (Embassy/Consulate General /Consulate)(Name of Post)Application R eceived on (Date ofApplication).c. A passpo rt bearing th e above s tamp and a subsequentlyissued visa indicates that the refusal was overcome or awaiver of the ineligibility was granted. Details of awaiver of ineligibility must be annotated on the visa inaccordance with 41.113 PN10.PN1.2-14 Procedu res for Placing R efusal Stamp inPassportThe fol lowing procedure must be used when stamping thepassport to reflect that th e applicant has been refuseda visa:(1) The stamp must be placed on the back page of thepassport (the page furthest f rom the f ront containingthe applicant's biographic data and/or photograph).(2 ) The date must be entered wi th indelible ink by hando r with a date stamp.(3) If an applicant returns frequently for a newinterview with th e same passport but is still consideredineligible, th e passport need not be stamped each t ime,though th e date of the refusal must b e entered eachtime. The passp ort must be stamped with a new

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view telegram(3]Application Received stamp after a three-monthinterval.6. In connection with 4.112(d), consular officers are todeem an application to h ave been refused if a visa isno t immediately issued.7. The exclusion from autom atic revalidation wil l applyto aliens w ho attempt to re-enter the United States ono r after April 1, regardless of whe ther theirapplication fo r a visa was filed prior to that date.8. The Department is discussing with INS whetheradditional procedures ought to be utilized to insurethat INS inspectors at the border m ay easily determinewhen an alien is not eligible fo r automatic visarevalidation. These might include phy sical cancellationo f the existing visa, stamping the alien's 1 - 9 4 or evenpassing relevant lookouts to INS electronically.Additional instructions wil l follow if any of theseprocedures ar e adopted fo r use.9. CA has prepared th e following brief Q& A for use inresponse to press an d public inquiries that might arisefollowing th e publication of the Federal Registeramendment and the implementation of the new policy:

01 . W h a t d o e s this re vised regulation chang e?A1. The revise d regulation prohibits aliens w ho haveapplied for and been refused visa issuance while outsidethe U .S. from returning to the United States, even ifthey are in possession of a valid 1-94 form. It alsoprohibits aliens who are citizens of countries on theState Departments list of State Sponsors of Terrorismfrom re-entering the U.S. using solely an 1 - 9 4 form iftheir visa has expired.02 . Why is this change being implemented?A2. The U.S. Governm ent has undertaken a variety ofefforts since September 11 to enhance b order securityan d ensu re that only individuals eligible to enter theUnited State s are allowe d entry. This is the latest ofthese efforts.

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view telegram[3]Q 3. How , sp ecif ical ly, do you think that this changewill enhance b order security?A3. The previou s regulation allow ed individuals w hosevisas ha d expired but whose 1-94 forms remained valid tore-enter the U.S. without obtaining a new visa. Theprevious regulation made limited distinctions amongcitizens of various nationalities, and aliens whoapplied for and were denied a new visa we re nonethelesspermitted to re-enter the United States.The changes we are now implementing enhance bord ersecurity by (a ) requiring that aliens fro m statesponsors of terrorism obtain a new visa (and thus gothrough a new set of interviews, com puter checks, etc.)before re-entering the U nited States, and (b) ensuringthat people w ho were found by one of our overseasembassies or consulates to be ineligible for a visacannot get around such a finding by re-entering the U.S.using solely their 1 - 9 4 f o rm .1 0. Minimize considered.P O W E L L

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t5 b65 gao visa docs 6 of 6 fdr- mar 02 dos cable- revised regulation on automatic re validations...

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