On June 24, 2022, U.S. Citizenship and Immigration Services issued new guidance in its Policy Manual on inadmissibility under section 212(a)(9)(B) of the Immigration and Nationality Act (INA). The new guidance clarifies that the three- and ten-year unlawful presence bars continue to run after reentry to the United States, formalizing the statutory interpretation that the location of an individual subject to an unlawful presence bar is irrelevant – the bars can be discharged in whole or in part inside of the United States.
Specifically, the new guidance states: “A noncitizen who again seeks admission more than 3 or 10 years after the relevant departure or removal, is not inadmissible under INA §212(a)(9)(B) even if the noncitizen returned to the United States, with or without authorization, during the statutory 3-year or 10-year period.” In so stating, USCIS articulates, for the first time, that the three- and ten-year bars continue to run, even when an individual subject to either bar returns to or remains within the United States. The new guidance does not address or otherwise eliminate inadmissibility due to the permanent bar in INA §212(a)(9)(C).
What is Unlawful Presence?
“Unlawful presence” is a term of art in immigration law referring to any time accrued toward the three-year or ten-year bars. It is a separate legal concept from being “out of status,” which, though unlawful, has no direct bearing on whether a three-year or ten-year bar applies.
A foreign national can go out of status for any type of status violation. For example, someone on an H-1B visa is limited to working for the petitioning employer, so if he works on the side for another company without authorization, he goes out of status. However, this individual would not be accruing any unlawful presence.
USCIS guidance indicates that foreign nationals begin accruing unlawful presence only upon one of the following occurrences: entry to the U.S. without inspection (unlawful presence accrues as of the date of entry); expiration of an I-94 entry document (unlawful presence accrues as of the day after it expires); or notification by the Immigration Service or an Immigration Judge that the foreign national is out of status (unlawful presence accrues as of the day of the written notice). Any time spent in the U.S. after one of these triggering events is considered “unlawful presence.”
Who Becomes Subject to The Three- or Ten-Year Bar?
Under INA §212(a)(9)(B)(i)(I), an individual who has accrued more than 180 but less than 365 days of unlawful presence during a single stay in the United States, and who has voluntarily departed the United States, is inadmissible for a three-year period from the date of “departure or removal.” In addition, under INA §212(a)(9)(B)(i)(II), an individual who has accrued one year or more of unlawful presence during a single stay, and who thereafter departed the United States, is inadmissible for a ten-year period. An immigrant waiver of these bars (filed on Form I-601) is available to those applicants who can establish “extreme hardship” – hardship that involves more than the common consequences of denying admission – to a qualifying relative. A qualifying relative is defined as a U.S. citizen or lawful permanent resident, spouse, or parent under INA §212(a)(9)(B)(v). As many individuals subject to the bars do not have these specific relatives and therefore cannot file the waivers, any guidance that removes them from inadmissibility due to unlawful presence will be quite welcome.
What Is the Permanent Bar?
The so-called permanent bar is found in INA §212(a)(9)(C)(i), which makes inadmissible “Any alien who (I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or (II) has been ordered removed under section 235(b)(1), section 240, or any other provision of law, and who enters or attempts to reenter the United States without being admitted.”
For example, if someone were to enter the United States without inspection, then remain in the United States for one full year or more, and then depart and attempt to cross the border without inspection a second time, they would be inadmissible under the permanent bar. Similarly, if someone were to leave and reenter the U.S. several times without inspection and if the total period of time spent in the U.S. after entry without inspection were to add up to one year, they would trigger the permanent bar the first time they attempt to enter after accruing one full year of unlawful presence in the U.S. “in aggregate.” In addition, someone who was previously removed from the U.S. (whether through formalized removal proceedings or through an expedited removal) would trigger the permanent bar by trying to enter the U.S. without inspection thereafter.
Implication of the New Guidance in the Family-Based Immigration Context
Until the issuance of USCIS’ new guidance, it was unclear where individuals subject to the three- or ten-year bar must discharge these bars. Could they be spent inside the United States or must they be spent outside? Given the lack of any statutory guidance or published Board of Immigration Appeals (BIA) decision stating the agency’s interpretation on this issue, practitioners would argue with varying degrees of success that clients who departed and triggered the three- or ten-year unlawful presence bar did not have to spend that period outside the United States. In 2009, USCIS agreed in a memorandum that the bars would run while the subject was inside the United States in one very limited scenario: where he or she re-entered the country lawfully and remained in status for the duration.
Discharging the three- or ten-year bar while physically present within the United States is mostly preferred by individuals, as many of the individuals subject to an unlawful presence bar have ties to family members and communities within the United States.
How Could Someone Who Is Subject to Three- or Ten-Year Bar Reenter the United States?
An individual who has accrued sufficient unlawful presence to trigger a three- or ten- year bar only triggers that bar by departing the United States. That individual is inadmissible to the United States in any capacity—whether as an immigrant or as a nonimmigrant, absent a waiver. So how could someone reenter the U.S. to serve the bar while physically present in the United States if they are inadmissible?
Individuals with a pre-existing nonimmigrant visa who overstayed a prior admission may not use that visa to legally enter the U.S. after triggering a 3 or 10 year bar, as the prior overstay voids the visa as an act of law under INA §222(g). If a person were to enter the U.S. using a prior visa in this scenario, they would be committing fraud. This is an example of “robbing Peter to pay Paul,” as the discharging of inadmissibility due to unlawful presence is exchanged for new inadmissibility due to misrepresentation (and the latter cannot be discharged through time and patience, only through the aforementioned waiver application).
In some scenarios, the individual actually obtains the new visa at a U.S. consulate after departing from the first trip. Here again, there is a clear misrepresentation, as the visa would not be granted were the consulate aware of the prior overstay, which should be disclosed on the DS-160 Form. The act of leaving the travel history off of Form DS-160 or legacy Form DS-156 is again a misrepresentation that would allow an individual to obtain the new visa and enter the U.S. to serve the three- or ten-year bar, but simultaneously triggering a new ground of inadmissibility that cannot be discharged, but requires a waiver.
How then to re-enter lawfully, without misrepresentation, and serve the bars? The individual would need a nonimmigrant waiver. Nonimmigrant waivers are much more broad than immigrant waivers and do not require a qualifying relative. Someone who is subject to the bar could apply for a nonimmigrant waiver in conjunction with a visa application at a U.S. consulate abroad. If granted, that individual would be eligible to enter the U.S. on a temporary visa and continue to accrue the requisite three- or ten-year period required to discharge the bar.
In practice, it is much more likely that an individual subject to the three- or ten-year bar would be granted a nonimmigrant waiver if seeking admission to the United States in an employment-based nonimmigrant status such as H-1B or L-1, than if they were seeking admission as a visitor. This is because one of the factors considered in adjudicating eligibility for a nonimmigrant waiver (which is granted in the government’s discretion) is the purpose of the individual’s entry to the United States. If the person is seeking admission to the U.S. to visit relatives (particularly a U.S. citizen spouse), the government may assume that the individual, who recently overstayed a prior admission period, will simply do so again and then apply for permanent residency once the bar is discharged. The policy update does not help those individuals trying to enter lawfully a second time around unless they also refrain from committing additional acts for inadmissibility purposes, i.e., committing fraud or misrepresentation on Form DS-160, Nonimmigrant Visa Application, to understate the length of their previous overstay during a prior admission period.
Whether obtained with an attached nonimmigrant waiver or through misrepresentation, entry with a visa will serve to discharge the bars through time. What is startling to many practitioners, though, is that the new guidance also indicates that if the individual enters the United States without inspection, the time they spend in the U.S. also counts toward discharging the bar. Keep in mind, however, that this can only occur for individuals who are not also subject to the permanent bar, and that the permanent bar is triggered when an individual attempts to enter the U.S. (or actually does so) without inspection after having accrued one year of unlawful presence in aggregate.
It should also be noted that if an individual were to enter the United States without inspection, he would again be unlawfully present in the U.S.—meaning that even while discharging a prior three- or ten-year bar, he is accruing time toward a potential new three- or ten-year bar and/or a permanent bar. However, these bars are only triggered by a subsequent departure from the United States. Therefore, if someone remains physically present in the U.S. long enough to discharge the prior three- or ten-year bar and thereafter has a basis to adjust status in the U.S. (typically through marriage to a U.S. citizen), they would retain eligibility for permanent residency.
In summary, the new policy guidance may be useful for noncitizens who were admitted to the United States but overstayed and triggered a bar upon departure from the U.S. They may be now eligible to apply for permanent residence, if otherwise qualified to do so, without the need for an immigrant waiver, even after reentering the United States and discharging some or all of the three- or ten-year bar while physically present in the United States. The new guidance will result in a more consistent application of how the three- or ten-year period of inadmissibility under INA §212(a)(9)(B) will be determined amongst local USCIS field offices that adjudicate applications for permanent residency.
Unlawful presence is one of the most complicated topics in immigration law, and each situation should be analyzed carefully.
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