22 C.F.R. § 40.92

Aliens unlawfully present

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(a) 3-year bar. An alien described in INA 212(a)(9)(B)(i)(I) shall be ineligible for a visa for 3 years following departure from the United States.

(b) 10-year bar. An alien described in INA 212(a)(9)(B)(i)(II) shall be ineligible for a visa for 10 years following departure from the United States.

(c) Waiver. If a visa applicant is inadmissible under paragraph (a) or (b) of this section but appears to the consular officer to meet the prerequisites for seeking the benefits of INA 212(a)(9)(B)(v), the alien shall be informed of the procedure for applying to DHS for relief under that provision of law.

[62 FR 67568, Dec. 29, 1997]

Notes of Decisions

Cited in 6 cases (4 in the last 5 years), 2008–2025 · leading case: Bethney Lovo v. Loren Miller, 107 F. 4th 199 (4th Cir. 2024).

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Bethney Lovo v. Loren Miller, 107 F. 4th 199 (4th Cir. 2024). “§ 1182 (a)(9)(B)(i); 22 C.F.R. § 40.92 (b). So, such a noncitizen, upon 4 USCA4 Appeal: 23-1571 Doc: 34 Filed: 07/03/2024 Pg: 5 of 46 leaving the country to apply for a visa as part of the process for seeking lawful-permanent- resident status, will find themselves barred from…”

Wood v. Mukasey, 516 F.3d 564 (7th Cir. 2008). “…officials to explain to aliens in Wood’s position the procedure for requesting a waiver from the Attorney General. 22 C.F.R. § 40.92 (3).”

Francisco Carrillo v. U.S. Citizenship & Imigration Servs. (N.D. Ill. 2024). · cites it 2× “22 C.F.R. § 40.92 (c). But DHS and USCIS have published rules that allow foreign nationals who live in the United States to request a provisional waiver of inadmissibility—called a Form I-601A provisional waiver—before leaving the country for the processing of their immigrant…”

Saavedra Estrade v. Mayorkas (E.D. Pa. 2023). “See 22 C.F.R. § 40.92 (c); see also Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives; Final Rule 78 Fed.”

Patel v. Mayorkas (N.D. Ill. 2025). “22 C.F.R. §§ 40.92 (c), 42.62(a)–(b). However, foreign nationals who live in the U.”

Wood, Lolita v. Mukasey, Michael B. (7th Cir. 2008). “22 C.F.R. § 40.92 (3). No. 06-2550 5 Before the December 2004 hearing, Wood moved for another continuance to afford her an opportunity to apply for adjustment of status based on her July 2004 marriage to an American citizen and her husband’s I-130 petition (as yet unapproved).”

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