UNLAWFUL PRESENCE BARS CAN RUN IN THE US, BIA & USCIS AFFIRM

UNLAWFUL PRESENCE AND THE THREE/TEN-YEAR-BAR

Under the unlawful presence grounds of inadmissibility, the three- and ten-year bars at INA § 212(a)(9)(B) penalize people who are present in the US. without any lawful immigration status for more than 6 months and 12 months respectively. This could be overstaying a visa by failing to depart the US. after one’s visa expires or it may be crossing the border and then remaining in the US. without any status. These bars do not apply until the person leaves the US. and then seeks to come back or to apply for admission.

Once the three or ten years have passed, the person is no longer inadmissible. In recent years, USCIS interpreted the three- and ten-year bars as only able to run if the person is outside of the United States. Thus, if the person triggered the three- or ten-year bar and then re-entered the United States before the requisite time bar had passed, they remained inadmissible, regardless of how much time passed while they were in the United States.

These bars are particularly problematic for non-citizens who entered the US. without inspection (not admitted into the US. on a visa or with parole—such as non-citizens who cross the Mexican border) since they are, in most cases, not eligible to adjust status to obtain residency (a green card) in the country. Since non-citizens who entered without inspection are not eligible to adjust status here they are required to attend an interview at the US. Consulate in their home country to obtain residency. This is where the three-year and ten-year bars become such a major obstacle for non-citizens in this situation.

For many years after the three and ten-year bars came into existence in 1998, non-citizens subject to the bars had no option but to the leave the US. and apply for a waiver outside of the country and spend years separated from their family until the I-601A provisional waiver (state-side waiver) allowed for the spouses and children of US. citizens (and later permanent residents) to apply for a waiver while still in the US. If the waiver is approved they are still required to leave the country and attend the interview at the US. Consulate in their home country but this allows them to significantly reduce the amount of time they are required to be outside of the country. The current processing time for an I-601A waiver is 34 months and then they must still go through the traditional visa process, so it takes a lot of time and effort to pursue these waivers. Those who do not have a citizen/resident parent or spouse have no way of getting around the three/ten-year bar.

NEW USCIS POLICY AND CASE LAW

New USCIS policy guidance and a recent BIA case, Matter of Duarte-Gonzalez, 28 I&N Dec. 688 (BIA 2023), however, now officially acknowledge that the simple passage of time is enough for the three- and ten-year bars to run, regardless of whether the full time period is spent inside or outside the United States.

Previously, a handful of unpublished BIA cases said the three- and ten-year bars at INA 212(a)(9)(B) could run in the United States, but with Duarte-Gonzalez we now also have a precedential BIA decision taking the same position as USCIS, that the 212(a)(9)(B) time bars can run in the United States based on the plain language of the statute. This means whether an applicant is seeking adjustment of status with USCIS or applying to adjust in immigration court (before EOIR, the Executive Office for Immigration Review), this policy applies to them.

Now, USCIS and EOIR will look at the amount of time that has passed since a person triggered the unlawful presence bar, without regard to where they were physically located

during that time. Once the requisite number of years have passed, the ground of inadmissibility no longer applies, and no unlawful presence waiver is needed to adjust status.

LIMITED BENEFIT TO THIS CHANGE

Even though USCIS and the BIA now acknowledge that the 212(a)(9)(B) time bars can run while in the United States, keep in mind a person must leave the United States to trigger one of these bars. Thus, in order for the time bar to pass in the United States, they must have somehow returned after their departure. How they returned is critical.

If you entered the US on a visitor visa in 2003 and overstayed but you triggered the ten-year bar by departing the US in 2005 with advance parole to go visit a sick relative, then when you return and are paroled into the US lawfully, you may wait out the remainder of the ten-year bar in the US. If you become eligible for residency in 2016, more than ten years after you tripped the bar, then you are no longer inadmissible under INA §212(a)(9)(B) pursuant to the new policy.

Practically this isn’t going to benefit many people. People in the situation described above would often be able to adjust status without a waiver anyway if they were married to a US citizen and traveled on parole.

Those who wouldn’t be eligible would be those who never traveled on parole and this new policy won’t benefit them. If you entered without inspection, accrued more than a year of unlawful presence and then left the US triggering the ten-year bar and then reentered the US again without inspection then this new policy will not benefit you. By reentering without inspection you would have triggered the permanent bar under INA §212(a)(9)(C).

Two types of people benefit from this policy without also having a permanent bar problem:

1) Those who re-entered the United States lawfully after a departure triggering the three or ten-year bars; or

2) Those who only triggered the three-year bar with their departure (regardless of whether they re-entered the United States lawfully or not).

MATTER OF DUARTE-GONZALEZ

Matter of Duarte-Gonzalez, 28 I&N Dec. 688 (BIA 2023)

Non-citizens who are inadmissible for a specified period of time pursuant to section 212(a)(9)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(B)(i), due to their previous unlawful presence and departure are not required to reside outside the United States during this period in order to subsequently overcome this ground of inadmissibility.

USCIS POLICY ALERT

USCIS Policy Alert, INA 212(a)(9)(B) Policy Manual Guidance (PA-2022-15), dated June 24, 2022, available at https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220624-INA212a9B.pdf

US Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual on inadmissibility under section 212(a)(9)(B) of the Immigration and Nationality Act (INA), specifically, the effect of returning to the United States during the statutory 3-year or 10- year period after departure or removal (if applicable).

Under this policy guidance, a non-citizen who again seeks admission more than 3 or 10 years after the relevant departure or removal,2 is not inadmissible under INA 212(a)(9)(B) even if the non-citizen returned to the United States, with or without authorization, during the statutory 3-year or 10-year period.

USCIS is issuing this guidance to explain the effect of returning to the United States during the statutory 3-year or 10-year period after departure or removal (whichever applies) on inadmissibility determinations under INA 212(a)(9)(B). This guidance contained in Volume 8 of the Policy Manual is effective immediately and applies prospectively to USCIS inadmissibility determinations made on or after June 24, 2022. The guidance contained in the Policy Manual is controlling and supersedes any prior related guidance on the topic.

In addition, some non-citizens may be eligible to file a motion to reopen8 their previously denied application with USCIS using a Notice of Appeal or Motion (Form I-290B). For more information, see the Unlawful Presence and Inadmissibility webpage.

Policy Highlights

• Explains that USCIS does not consider a non-citizen who has accrued more than 180 days of

unlawful presence and has departed or been removed (whichever applies) inadmissible under

INA 212(a)(9)(B) unless the non-citizen again seeks admission to the United States within the

statutory 3-year or 10-year period after departure or removal (whichever applies) following

accrual of the requisite period of unlawful presence.

• States that the statutory 3-year or 10-year period begins to run once the non-citizen departs or is removed (whichever applies) and continues without interruption from that date until 3 or 10 years after such departure or removal.

• States that a non-citizen’s location during the statutory 3-year or 10-year period and the non-citizen’s manner of return to the United States during the statutory 3-year or 10-year period are irrelevant for purposes of determining inadmissibility under INA 212(a)(9)(B).

Summary of Changes

Affected Section: Volume 8 > Part O, Non-citizens Unlawfully Present

• Adds new Chapter 6 (Effect of Seeking Admission Following Accrual of Unlawful Presence).

• Adds new [Reserved] Chapters 1, 2, 3, 4, and 5.

Citation

Volume 8: Admissibility, Part O, Non-citizens Unlawfully Present, Chapter 6, Effect of Seeking Admission Following Accrual of Unlawful Presence [8 USCIS PM O.6].