USCIS Changes Interpretation of Bars of Inadmissibility

USCIS Changes Interpretation of Bars of Inadmissibility

Before we dive into the fundamental parts of the recent USCIS changes to 3 and 10-year bars of inadmissibility, we will discuss important background information regarding the topic. Ybarra Maldonado Law Group is currently monitoring the situation and providing updates regularly. For more information about this important change, please contact our Phoenix law office at 602-910-4040 today.

If you believe this policy update applies to your situation, we invite you to schedule a consultation with our skilled Phoenix immigration attorneys. We can also help you file an adjustment of status.

Background Information

Unlawful presence is a fairly complicated part of United States immigration law. Basically, immigration law punishes non-citizens who stay in the United States unlawfully. However, the punishment isn’t a fine, or a prison sentence like it might be for another offense.

Instead, if these foreign nationals leave the country after being there without status they will be prevented from reentering for a certain period of time. This time period is usually either 3 years or 10 years. This reentry prevention period is called a “bar of inadmissibility.” The length of time for the bar depends on how long the individual stayed in the United States without status.

Terms that are commonly used to describe these bars include the following.

  • Ten-year bar
  • Three-year bar
  • Time bar
  • Unlawful presence bar
  • Permanent bar

Understanding Three or Ten-Year Bars

Along with many others, bars of three or ten years are grounds for inadmissibility under United States immigration law. These grounds often result in the denial of a green card or even a temporary visa. Examples of grounds of inadmissibility include the following.

  • Health-related grounds: certain diseases, a lack of vaccinations, physical or mental disorders, or substance abuse and addiction.
  • Criminal grounds: convictions of crimes involving “moral turpitude” or controlled substances, convictions of two or more offenses, drug trafficking, prostitution, human trafficking, and money laundering.
  • Economic grounds: those deemed to be a “public charge.”
  • Unlawful presence grounds: foreign nationals who unlawfully remain in the United States for a certain period of time and then leave the country.

Three-Year Bar

If someone remains in the United States without status for more than 180 continuous days but under one year and has no formal deportation proceedings against them, they receive a three-year bar the moment they leave the country. They do not need to be ordered removed or given a voluntary departure from an Immigration Judge, the simple act of the individual leaving on their own can trigger the bar.

Ten Year Bar

If someone remains in the United States without status for more than a year but leaves before formal deportation proceedings have begun, they receive a ten-year bar.  Just as with the three year bar this applies even if the person leaves voluntarily without any immigration contact.

Permanent Bar

If someone remains in the United States without status for more than a year in total or is deported from the country and then attempts re-entry, they receive a permanent bar on re-entry. However, it’s important to note that, after the ten-year period passes, you can request permission to apply for a green card, as long as you have waited those ten years outside of the United States.

What Exactly Is Unlawful Presence?

In general, unlawful presence refers to either overstaying your visa or entering the country unlawfully. However, there are a number of exceptions as to what will contribute to the accrual of unlawful presence. The following are situations in which you would not accrue unlawful presence. If you:

  • Were under 18 at the time
  • Received Temporary Protected Status, Withholding of Removal, Deferred Action, or Deferred Enforced Departure. Deferred action for labor violations is similar to DACA, but applies to different cases.
  • Had a pending adjustment of status, extension of status, or change of status
  • Were a battered child or spouse, or were a trafficking victim
  • Were a Family Unity program beneficiary

Others who overstay in the country will likely accrue unlawful presence time. A three-year or ten-year applies to anyone who leaves the country.  The permanent bar only applies to those who try to reenter the country after removal or having accrued over a year of unlawful presence. So how can one still adjust status if they have accrued over a year of unlawful presence? It is possible to avoid these time bars by filing for an adjustment of status, as long as you don’t leave the country. These adjustments are available to those who meet the following criteria.

  • Even if you overstayed your visa, you entered the United States legally.
  • You are applying for your green card as a family member or other immediate relative of a U.S. citizen.

Put simply, the three and ten year bar would not apply to someone who overstayed their visa as long as that person remains in the country. For example, someone who enters with a border crossing card as a 10 year-old child and then stays in the country until they are 30 years old can still adjust status if they marry a United States citizen. At the age of 18, they accumulate unlawful presence, but the fact that they never left the country meant the 10 year bar will not trigger. Likewise, they could not get the permanent bar because they never left nor were the ordered removed.

Background for USCIS Changes to Bars of Inadmissibility

Now that you have the background information, we’ll go over the recent changes that the USCIS has made due to a recent lawsuit. On March 25, 2022, a non-profit organization called the Northwest Immigrant Rights Project filed a class-action lawsuit. The lawsuit challenges the USCIS’s current interpretation of their three or ten-year unlawful presence bar.

This lawsuit claims that the existing USCIS policy is not correct in terms of those who enter the United States during their period of inadmissibility on a valid visa. Under the current interpretation, applicants had to either maintain a “lawful status” throughout that period of waiting outside the United States for the entire period of inadmissibility.

How Has the Lawsuit How Has the Lawsuit Impacted the USCIS’s Interpretation? the USCIS’s Interpretation?

Because of what the lawsuit asserts, the USCIS no longer plans to force certain applicants to leave the country during the period of inadmissibility. They will also not reject applications for adjustment of status if the applicant stayed in the country without an immigration waiver during that period.

While the new policy is still subject to change and finalization, we expect to hear relevant updates soon. If you feel that your situation meets the requirements of the class-action lawsuit, we recommend speaking with a Phoenix immigration attorney as soon as possible.

What Are the Requirements for Class Action Eligibility?

In order to qualify for the lawsuit, you must first meet certain requirements. These requirements are as follows.

  • You filed or will file an adjustment of status,
  • You reentered the United States during your three or ten-year bar, and
    • Either you were denied your adjustment of status because you reentered the country during your inadmissibility period, or
    • You were instructed to file a Form I-601
    • Or an attorney previously told you not to apply because of this ground of inadmissibility

Contact a Phoenix Immigration Attorney Today

If you are unsure of whether these new changes might apply to your situation, Ybarra Maldonado Law Group is here to help. We have a deep understanding of United States immigration law, including its legislative history. Our skilled lawyers can evaluate the facts of your case and provide you with important updates about the new legislation. To schedule a consultation with us, please call 602-910-4040 today.

Other recent changes in the federal government have to do with the budget reconciliation immigration changes. Read our related blog to learn more about the potential changes to immigration policies.

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