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OI 214.1 General requirements for admission, extension, and maintenance of status.
214.1 General requirements for admission, extension, and maintenance of status. The Notes to 22 CFR 41, in Volume 9--Visas, Foreign Affairs Manual, contain valuable information pertaining to nonimmigrant classification and related matters. These notes should be consulted when considering issues of law or fact in connection with nonimmigrants.
The admission of an alien whose entry is authorized under section 212(d)(3) shall be for the period specified in the section 212(d)(3)(A) or (B) order. In the case of section 212(d)(3)(A) orders, the visa will contain a notation specifying, among other things, the duration of stay authorized. See OI 212.4(a). Reference shall be had to the order to determine the period of admission authorized in section 212(d)(3)(B) cases.
With regard to the automatic revaluation of certain expired nonimmigrant visas pursuant to 22 CFR 41.125(f), the Department of State has advised that the terms "expired nonimmigrant visa" means a visa which is no longer valid either because of the passage of time, or because the alien has used up the number of entries for which the visa is valid.
It is expected that action (completion, return or transfer) on an extension application will normally be accomplished within 5 working days after receipt in the unit to which the case has been referred for decision. However, an extension application presented in person at an office where such applications are being adjudicated within 5 working days after receipt should be decided while the applicant waits in the office if the density of in-person traffic is low; otherwise, the applicant should be informed
that the decision will be mailed to him unless he insists on waiting for it, in which event he should be accommodated, if feasible. An extension application presented in person at an office in which adjudication of such applications is generally made more than 5 days after receipt should be decided while the applicant waits in the office only if he is seeking an extension of 60 days or less; otherwise, the applicant should be informed that the decision will be mailed to him, and the application should be h
andled as though it had been received by mail.
A retroactive extension may be granted when failure to file a timely application was reasonably excusable, extension to members of a family group shall be for identical periods; if one member is eligible for a six-month extension and another for a twelve-month extension, the former shall govern. When a spouse or any minor, unmarried children are included in an application for extension, regardless of whether they actually traveled together, the following notation: "Includes accompanying children and/or sp
ouse whose names are circled."
When an extension application is granted, the applicant's Form I-94 shall be endorsed to show the extension of stay and returned to him in a window envelope by means of the address label. If the applicant is represented by an attorney, the Form I-542 shall be used in lieu of the address label to notify the applicant with a copy furnished the attorney. When extension of stay is denied, Form I-541, with Form I-438 attached and the office address stamped thereon, shall be mailed or presented to the applicant
. A copy of the Form I-541 shall also be furnished the attorney if the applicant is represented. Except as indicated above, Form I-542 should be used to the maximum extent when communicating with nonimmigrant aliens.
If an extension application is denied and the applicant has 10 days or more left on his previously authorized stay, he shall be requested to effect his departure on or before the expiration of that previously authorized say, unless there are exceptional circumstances warranting additional time.
If an extension application is denied and the applicant has less than 10 days left on his previously authorized stay, or such stay has already expired, he shall be requested to effect his departure on or before 10 days from the date he is notified of the denial, unless there are exceptional circumstances warranting additional time. When it is brought to the attention of Examinations that an alien who has an extension application pending is believed to be in violation of his nonimmigrant status and that the
Service is contemplating commencement of deportation proceedings, the extension application shall be immediately adjudicated.
When there is reason to believe the applicant will not depart unless steps are taken to enforce departure, proceed as follows: place him under Docket Control; notify the alien of the denial and grant him a departure period as provided in accordance with the preceding 2 paragraphs; instruct him to execute and submit Form I-438; inform him that if he does not depart by the date specified he is to appear at the Service office on the first business day after the specified departure date for institution of depor
tation proceedings, and that if he fails to depart and does not appear a warrant for his arrest may be issued.
In flagrant cases, such as when the alien has worked without permission although previously informed that this is a violation of status, or when the alien's stay has expired and he has been using dilatory tactics to prolong his stay, the alien should be escorted to the Investigations section for issuance of an order to show cause if he has applied in person. If he has applied by mail, proceed as follows: Place the alien under Docket Control; notify him or the denial and grant him a departure period as prov
ided in the 2 paragraph which precede the paragraph above this one; with the denial notice serve an order to show cause and schedule the hearing for the first business day after the specified departure date; inform the alien that if he does not depart by the date specified he is to appear for an expulsion hearing as stated in the order to show cause, and that if he fails to depart and does not appear a warrant for his arrest may be issued.
The procedures described in the preceding 2 paragraphs shall be observed to the extent feasible, depending on available staff and condition of the deportation hearing calendar at the individual office. Also, each office shall issue appropriate implementing instructions to assure timely follow up.
Blue Page OI214.1
Grant or denial of an extension of stay shall be reported to the designated document control center for NIIS at the time such action is taken in each case when a Form I-94 had been prepared in connection with the initial admission or a prior extension. The name and nationality shown on the report must be exactly as shown on the alien's Form I-94. The report shall be made on Form I-538A, Form I-539A, or Form I-530. Form I-530 shall be used if the extension application is made on a form other than Form I-5
38 or Form I-539 (e.g., Form IAP-66). Form I-530 shall be used for the spouse and children included by nonimmigrant in the application. When Form I-530 is used it shall be prepared in duplicate from the alien's Form I-94; the original shall be forwarded to the designated document control center for NIIS and the duplicate shall be filed with the extension request. When an application for extension of stay is denied and a grant or voluntary departure is authorized, the alien's Form I-94 shall be endorsed to
show the authorization and the date of departure.
Nonimmigrant aliens in the United States in classifications F-2, H-4, J-2, and L-2, who are maintaining such status, may attend school on a part or full-time basis without changing their status to F-1.
A nonimmigrant whose C-2 or C-3 visa has expired; or other nonimmigrant whose A,E,G,H,I,L or NATO visa has expired, whose authorized stay has not expired and who is continuing to maintain that nonimmigrant status, and who intends to proceed abroad and return to resume that status, may be advised that he may, prior to departure from the United States, request the Department of State to revalidate such expired visa. The letter requesting revalidation should be addressed to the Accreditation and Issuance Branc
h, Visa Office, Department of State, Washington, D.C. 20520. The letter should be accompanied by the alien's Form I-94 showing an unexpired period of authorized stay, and by the alien's passport valid for at least 6 months beyond that authorized stay. Also, if there is a fee for revalidation, a check or money order for the exact amount of the fee, payable to the Department of State, should be enclosed. (The alien should be referred to the Accreditation and Issuance Branch for any information regarding f