New USCIS Policy June 24, 2022 on 3–/10-Year Unlawful Presence Bars

In this blogpost we’ll discuss New USCIS guidance dated June 24, 2022.

 The guidance states that “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.”

 Note that the new guidance does not address or otherwise eliminate inadmissibility issues due to the permanent bar at INA §212(a)(9)(C) or the inspection and admission requirement for adjustment of status, notwithstanding the reference in the policy to a return to the United States “without authorization.”

 

The new guidance confirms that location of the person does not matter which means the bars can be served in whole or in part inside the United States. Specifically, the noncitizen’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).”

 The current process for pursuing the §212(d)(3) waiver (“d3 waiver”) typically requires spending at least several months abroad waiting for a decision, as the waiver application can generally only be submitted at or after the consular interview after which it is forwarded by the consulate to the CBP Admissibility Review Office for further processing. 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.

 Similarly, a noncitizen who was admitted to the United States but overstayed may be eligible for permanent residence through marriage to a U.S. citizen without having to go to his/her home country.

In addition, an undocumented foreign national who qualifies for adjustment of status pursuant to §245i may be able to seek a green card in the United States through an employer-sponsored petition or a family-based petition.