(Continued from last week's article)

Take another example of Mary Schwank, an Austrian citizen, who also entered the US on July 15, 2007 under the Visa Waiver program. Her I-94W indicated that she could stay until October 14, 2007.

Heidi Schwank too did not leave timely and is still in the US presently. If she leaves the US on January 31, 2008, the automatic visa voidance under Section 222(g) will not apply to her because she was admitted without a visa as an Austrian national.

Nevertheless, she will still be subjected to the 3 year bar if she attempts to reenter the US under the Visa Waiver program available to Austrian nationals as she overstayed her welcome by more than 180 days.

Even if Heidi Schwank left the US prior to the 180th day of unlawful presence (say December 31, 2007), she will have a tough time getting admitted into the US as the CBP inspector will be skeptical whether she is truly going to abide by the terms of her new admission under the Visa Waiver program.

The CBP has issued an important Advisory on how a nonimmigrant can still submit his or her I-94 or I-94W card if it was not handed over at the time of departure. The individual who departs without handing over the I-94 must mail it to the following address:

ASC - CBP SBU

1084 South Laurel Road London,

KY 40744

CBP also instructs that the individual must send proof of the timely departure, in addition to the I-94, such as original boarding passes, copies of entry or departure stamps of other countries in the passport after the individual departed the US, pay slips or vouchers from employers demonstrating that this individual commenced employment upon departure from the US in a foreign country, bank records showing transactions after departure from the US, school records showing attendance after departure, and credit card receipts showing post-departure purchases outside the US.

Moreover, CBP also asks that a letter of explanation in English accompany the submission of all of the evidence. Interestingly, the advisory indicates that delays beyond the traveler's control such as cancelled or delayed flights, or medical emergencies, will not be considered unauthorized overstays.

However, the traveler would need to bring proof of the cause of the overstay the next time he or she visits the US. It should be noted that Section 222(g) provides for the automatic voidance of the visa notwithstanding any excuse for overstay.

Thus, even if the visa is voided, the CBP presumably still has the ability to admit the traveler without a visa (if not a Visa Waiver country national) by waiving him or her under INA Section 212(d)(4). If the nonimmigrant visitor on a B visa is able to anticipate a delay in advance of the last date on the I-94, it is best that he or she submit an application for an extension of status by filing Form I-539 with the United States Citizenship and Immigration Services (USCIS) on or before the date stated on the I-94. Visa Waiver applicants with I-94Ws are not eligible for such extensions of their status.

On March 3, 2000, the predecessor agency, Immigration and Naturalization Service, issued a memorandum stating that if a traveler filed a timely and nonfrivolous I-539 application to extend status, and departed before a decision was made on this request, Section 222(g) would not apply. This policy is good even today.