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STATE DEPARTMENT ISSUES FURTHER COMMENTARY ON "CONSULATE SHOPPING" BAN 
One of the provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") to have the most immediate impact is a provision that prohibits aliens who have ever overstayed a visa in the US from being readmitted to the US as nonimmigrants except on the basis of a visa approved in the alien's home country. The only exception is where the State Department determines that "extraordinary circumstances" exist. The common practice of processing visas in Canada and Mexico has already been cut back substantially.
The State Department commented further on the new provision in a November 8, 1996 memo to all consular posts. In the memo, it notes that the new law does not apply to aliens who enter without a visa (e.g. those coming on the Visa Waiver Pilot Program, travelers, aliens who enter without inspection, etc.). It does not apply to aliens who fell out-of-status for some other reason other than overstay (such as working without authorization).
For the bar on consular processing to apply, the alien must have remained beyond the period of authorized stay on their visa. With respect to asylum applicants, aliens who apply for asylum but remain beyond the period of stay authorized on the nonimmigrant visa are still subject to the new law. The State Department recommends that aliens apply for an extension of stay on the nonimmigrant visa in the US instead.
Those subject to orders of voluntary departure are not considered to be in a period of authorized stay and would, consequently, have to process in their home countries. Those granted Temporary Protected Status ("TPS") can apply for a visa at a third country consulate as long as TPS status was granted prior to the expiration of the alien's authorized stay. Otherwise, he alien would be required to process in their home country.
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