Huge Changes to USCIS Policy on 3–/10-Year Unlawful Presence Bars

In a major development, USCIS announced changes to the agency’s interpretation of the 3-year and 10-year unlawful presence bars under INA § 2129(a)(9)(B). This change is basically the result of the pending class action Velasco v. USCIS which questions the agency’s prior interpretation. USCIS has also issued changes in their USCIS policy manual regarding the agency’s change in interpretation of the unlawful presence bars.

In general, under INA § 2129(a)(9)(B), an undocumented individual who remains in the United States for more than 180 days, essentially six (6) months, is subject to a 3-year inadmissibility bar, or is respectively subject to a 10-year inadmissibility bar if more than one year of unlawful status occurs. This new guidance by USCIS significantly changes the interpretation of the rule.

Highlights of the change of interpretation and policy guidance include the following:
A noncitizen who has accrued unlawful presence for more than 180 days and departed or was removed is not considered inadmissible by USCIS under INA § 2129(a)(9)(B) UNLESS the noncitizen again seeks admission into the United States within the applicable 3-year or 10-year bar period after departure or removal.
The 3-year or 10-year bar period is triggered upon the non-citizens departure or removal from the United States and runs continuously without interruption until 3 to 10 years after the said date of departure or removal.
A noncitizen’s location during the 3-year or 10-year period and the manner in which the noncitizen intends to return to the United States during their 3-year or 10-year bar period will not be relevant for purposes of determining inadmissibility under INA § 2129(a)(9)(B).

There are several important practical applications to these changes. For example, this new guidance may be useful for undocumented students, particularly as many may currently be unable to obtain DACA benefits (or those with DACA who face an uncertain future). An approved §212(d)(3) waiver removes that bar for temporary visa purposes, allowing the DREAMer to apply for a nonimmigrant visa, such as an H-1B, at a consulate or port of entry, and then (if the visa is granted) enter the United States in valid nonimmigrant status with work authorization.

Basically, if you are subject to this bar you, in certain circumstances, no longer need to spend the three (3) or ten (10) years outside of the country. This is a huge change that will significantly affect a lot of people. If you have questions about the, please contact Neils Law at (415)744-4721.