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Consular Processing Update: Department of State Amends the Contiguous Territory Rule
by Tien-Li Loke Walsh and Bernard P. Wolfsdorf

On March 7th, 2002 the Department of State amended the provision for automatic revalidation of expired visas for nonimmigrant aliens returning from short visits to other North American countries or adjacent islands ("contiguous territories") under 22 C.F.R. Section 42.112(d). Commonly referred to as the "contiguous territory" rule, the automatic revalidation provision of 22 CRF Section 42.112(d) allowed aliens who were out of the US for less than thirty days in a contiguous territory, to re-enter the US with an unexpired I-94 Arrivals/Departure card. Such aliens may have been applying for readmission in the same classification or in a new classification authorized by the INS prior to their departure.

In an effort to enhance security screening of visa applicants, the Department of State has amended the "contiguous territory" provision in two ways. First, the automatic revalidation provision is no longer applicable to aliens who apply for new visas during visits to contiguous territories. Second, it is no longer available to aliens who are nationals of countries identified as state sponsors of terrorism, currently designated as Iraq, Iran, Syria, Libya, Sudan, North Korea and Cuba. This is an interim rule that is effective on April 1, 2002, with a 60 day comment period, ending May 6, 2002.

Accordingly, the Accordingly, the Department of State amends 22 CFR Chapter I Sec. 41.112(d) to read as follows:

Sec. 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 INS 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 INS 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 INS, or by the sponsor of the exchange program in which the alien has been authorized to participate by INS, and endorsed by the issuing school official or program sponsor to indicate the period of initial admission or extension of stay authorized by INS;
(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. (emphasis added)
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 Department's annual report to Congress entitled Patterns of Global Terrorism.

In the past, it has been possible to rely on the automatic revalidation provision as a critical "safety net" for clients applying for nonimmigrant visas as Third Country National applicants at border posts in Canada and Mexico. This amendment necessitates additional scrutiny on the part of counsel in advising clients on consular processing options. The effect of this amended provision is potentially devastating. If an applicant is refused a nonimmigrant visa at a border post in Mexico or Canada, the applicant must depart through Canada or Mexico and will not be permitted to re-enter the US using the INS approved change or extension-of-status.

Another change that has affected TCN consular processing in Mexico and Canada is the introduction of a two-week "buffer" period when booking appointments at border posts. Appointments must now be secured at least two weeks in advance to provide posts with an opportunity to determine if the alien is a national from a designated country that is on the as yet unpublished DOS classified list of countries that are subject to additional security clearances. The list of countries reportedly affected by these restrictions, includes but is not limited to Afghanistan, Algeria, Bahrain, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, the United Arab Emirates and Yemen. The "buffer" period allows posts an opportunity to notify the applicant if the appointment can be honored. If the appointment cannot be honored, the applicant must apply in their home country.

Finally, visa applicants face several other changes in consular processing procedures when applying for US nonimmigrant visas at US embassies and consulates. Effective January 2002, the Department of State requires all male nonimmigrant visa applicants between the ages of 16 and 45 to complete the DS-157 Supplemental Nonimmigrant Visa Application Form during the visa application process, with limited exceptions for diplomats and persons from visa waiver countries. The form supplements the standard Form DS-156 and seeks to gather additional information about the applicant's specialized skills or training in connection with firearms, explosives and nuclear, biological, or chemical agents; the applicant's educational history; and the applicant's movements over the past ten years. Among other things, the DS 157 also asks applicants to indicate whether they performed military service and whether they have ever been in an armed conflict.

This form is in use at all US embassies and consulates and is readily available on the Department of State website as well as on most individual posts' websites. In some instances, some posts including Israel and London, posts are also requesting that all male and female nonimmigrant visa applicants holding Chinese, Cuban, Iranian, Iraqi, Libyan, Russian, Somali, Sudanese or Vietnamese passports to complete the form.

About The Author

Bernard P. Wolfsdorf practices exclusively in the area of immigration and nationality law in Los Angeles. He is a California state bar-certified specialist in immigration and nationality law and is listed in Martindale Hubbell's Pre-eminent Specialist Directory, and in the International Who's Who of Corporate Immigration Lawyers. Mr. Wolfsdorf has served on numerous AILA liaison committees, including the AILA/CSC Liaison Committee and the State Department Liaison Committee, and is currently serving on the American Bar Association's Coordinating Committee on Immigration Law. His office assists applicants with consular visa interviews and he is a frequent lecturer on consular processing.

Tien-Li Loke Walsh is an associate attorney with Wolfsdorf Associates in Los Angeles, and practices exclusively in the area of immigration and nationality law. Ms. Loke Walsh currently serves on the AILA/CSC Liaison Committee. She graduated from the University of Sydney with a B.A. in Political Science and History, and received her J.D. from Boston University School of Law. She travels frequently to consular posts to represent visa applicants.