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Three and Ten Year Unlawful Presence Bars Can Be Served within the United States

July 12, 2022
Aaron Lawee

On June 24, 2022, USCIS issued an important clarification about the rules governing unlawful presence bars, commonly referred to as either the “three” or “ten” year bars. This will have very important benefits for people who are eligible to apply for a green card within the United States (“adjustment of status”) but have departed the United States after a period of unlawful presence and then reentered.

Brief Summary:

The three- and ten-year unlawful presence bars can now run within the United States. This means that if you are eligible for apply for adjustment of status but have an unlawful presence bar, you will not need to submit a waiver if the necessary time of inadmissibility has passed. USCIS had previously required that a waiver be submitted unless the necessary time was spent outside the United States before returning. However, that is no longer the case. A waiver should not be required as long as the necessary three or ten years have passed, regardless of whether they were spent inside the United States.

What are unlawful presence bars?

Our immigration laws impose certain punishments on people who reside unlawfully in the United States for certain periods of time and then depart. In particular, if someone accumulates more than 180 days of unlawful presence and then departs the United States, they are “inadmissible” and cannot return to the United States for three years from the date of departure. Similarly, if someone accumulates more than one year of unlawful presence and then departs, they are inadmissible for ten years. In both of these cases, it is possible to request forgiveness for the unlawful presence through an application called a “waiver.” In order to obtain a waiver, it is necessary to show that spouse or parent (but not a child) who is a U.S. citizen or permanent resident will suffer extreme hardship if your application is denied.

How does unlawful presence impact my application for adjustment of status?

Depending on certain factors, you may be eligible to apply for a green card from inside the United States, without returning to your home country. However, if you have an unlawful presence bar described above, you may be unable to obtain a green card without first requesting a waiver for your unlawful presence. Below is a common example to illustrate this issue:

An applicant enters the United States on a tourist visa and is allowed to remain here for 180 days. However, he stays for two years instead, and then returns home. Shortly after, he reenters the United States on his visa. Ten years later, he marries a US citizen and applies for his green card within the United States.

In this case, the applicant would be inadmissible for ten years (the ten-year bar), because he remained in the United States unlawfully for more than one year before departing. Then he returned without waiting ten years outside the United States.

Under the previous interpretation, USCIS likely would have required that he submit an I-601 waiver to forgive his ten-year unlawful presence bar, even though ten years had already passed since he last left the United States. The reason was because he did not spend those ten years outside the United States. Under the new interpretation, USCIS would not request an unlawful presence waiver, because there is no longer a requirement that the ten years be spent outside the United States.

Why does this matter?

This change is important because submitting a waiver application can be costly, difficult, and time consuming. You will likely be able to obtain a green card faster and more easily if you are not required to file a waiver. Furthermore, some people are not eligible for a waiver at all (for example, if they do not have a spouse or parent who is a U.S. citizen or permanent resident), and these people can now apply for their green cards, since they do not need to submit a waiver application at all.

Who does this Not Affect?

This rule will mostly only impact people who are applying for a green card from within the United States (adjustment of status). If you are not eligible for adjustment of status and need to process your case in a consulate outside the United States, this change will likely not impact you. In particular, if you are submitting an I-601A, provisional waiver application, this change in policy will likely not benefit you, unfortunately. Furthermore, if you have multiple entries and departures and are inadmissible for a “permanent” ten-year bar, then this policy change will not help you either. Additionally, it also will not help you if the necessary time period (three or ten years) has not passed since you last departed the United States. Finally, please be aware that every case is unique, and you may still need a waiver for other reasons, such as crimes or fraud.

Conclusion:

This change has the potential to allow certain people to apply for green cards who might otherwise be ineligible, and to make it easier to obtain a green card for others. However, as stated, please keep in mind that this policy change only applies to unlawful presence bars. Every case is you unique, and for this reason, it is extremely important that you discuss your case with an experienced immigration attorney. If you believe you may be impacted by this change in policy, please contact one of the attorneys at Minsky McCormick & Hallagan at (312) 427-6163 and we can help you determine if you are eligible to apply for your green card as a result of this policy.

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