The State Department has established a new blanket exemption for some aliens subject to INA Section 222(g), which mandates that an alien who has overstayed their visa must return to their country of nationality for processing.

The new rule will apply to aliens who have filed a non-frivolous application to adjust status or to extend their stay that is pending at the time their I-94 expires, and do not leave the US until after the I-94 expires. In order to qualify, the alien cannot have engaged in unauthorized work while in the US.

The consular post is not to engage in examination of the merits of the alien's application to determine whether it is frivolous, but only look to see if the application is facially no more than an excuse to stay for an unauthorized reason. The timeliness of the filing is to be determined by comparing the dates of the application receipt and the expiration date of the I-94. The new rule is to be applied in all but the most blatant cases of abuse.

The State Department hopes that this new regulation will ease some of the problems created by the backlog in the processing of requests for changes of or extensions in status.

Aliens who do not qualify for this form of extraordinary circumstance waiver may still seek an individual waiver.