Foreign nationals potentially facing the three- or ten-year unlawful presence bars should be aware of a recent policy change that USCIS is now implementing. Under the new guidance, which became effective June 24, 2022, the government will no longer consider prospective immigrants ineligible under the unlawful presence bar (INA 212(a)(9)(B)) if the required three or ten years have elapsed—even if the applicant returned to the US, without or without authorization, during that three- or ten-year period. Traditionally, in many jurisdictions, many government offices have interpreted the law to require the applicant to spend the three or ten years required under the unlawful presence provisions outside the US. Now, under the new policy, applicants who returned to the US before the requisite three or ten years will not necessarily be prohibited from applying for their green cards, as long as the three or ten years have passed. In other words, the required three or ten years continues to accrue even if the foreign national has somehow re-entered the country. The clock does not stop merely because the person is back in the US. Therefore, once the statutory time period has passed—three or ten years depending on the circumstances—the applicant will no longer be denied under this provision of the law.
In terms of the three- and ten-year bars, it depends on how long the individual has accrued “unlawful presence.” If a person has accumulated six months or more of unlawful presence and then departed or been removed from the US, the three-year bar will be triggered. If a person has accumulated one year or more, and then departs or is removed, the ten-year bar will go into effect.
Notwithstanding this favorable interpretation, applicants should nevertheless exercise caution if the three- or ten-year bar is potentially an issue. The unlawful presence bar is not the only ground of inadmissibility that can result in a denial of one’s case. There are other bases such as the permanent bar under 212(a)(9)(C); fraud or misrepresentation; or inadmissibility after being removed or deported. Although these other grounds are similar in that they bar a foreign national from being admitted, they are separate and distinct and independent grounds that can render an applicant ineligible.
Because this area of law is extremely complex, applicants potentially affected by this policy change should consult with legal counsel.