In September 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which imposed penalties on those who stay in the United States beyond the period authorized by the Attorney General. Two new sections of the Immigration and Nationality Act were created to define these penalties:

  • INA 222(g) "Visa Overstays"
  • INA 212(a)(9)(B) "Aliens Unlawfully Present"

Interpreting when and how these two provisions apply to a specific individual is complicated, but critically important. Regulations have not yet been written to fully define the applicability of the statutory provisions; however, the penalties that could apply are significant. DHS has not yet issued any guidance that supersedes prior INS guidance. Individuals needing legal advice should be referred to an immigration attorney.

Advising individuals on the applicability of INA 222(g) and 212(a)(9)(B) is particularly challenging because regulations have not yet published to comprehensively define when those two statutory provisions should apply. In the meantime, INS and DOS issued internal memoranda and cables to their field offices, to provide central office guidance on how field offices should interpret and apply the law. The explanations and interpretations of INA 222(g) and 212(a)(9)(B) found here are based principally on these internal agency communications. One should note, however, that although an agency's interpretation of a law that it is charged with enforcing or administering does carry great weight, these memoranda and cables are not considered law.

Nonimmigrant status violations and I.N.A. 222(g) and I.N.A. 212(a)(9)(B)
Not all violations of nonimmigrant status will subject an individual to the penalties of INA 222(g) and 212(a)(9)(B) (even though any violation of a term or condition of nonimmigrant status will make an alien "out of status" and subject to deportation under INA 237(a)).

INA 222(g) and 212(a)(9)(B) are triggered only in the specific circumstances.