On June 24, 2022, USCIS issued a new policy guidance in the USCIS Policy Manual on inadmissibility under section 212(a)(9)(B) of the Immigration and Nationality Act (INA), specifically, the effect of returning to the United States during the statutory 3-year or 10-year period after departure or removal (if applicable). Under this policy guidance, 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. As per the new guidance, the 3- or 10-years bars can be served in whole or in part inside the United States, as noncitizens location during the statutory 3 year or 10-year period are irrelevant for purposes of determining inadmissibility under INA Section 212(a)(9)(B). In addition, some noncitizens may be eligible to file a motion to reopen their previously denied application with USCIS using a Notice of Appeal or Motion.

Usually, the unlawful presence begins on the date that status expires (the I-94 expiration date) or when USCIS or an immigration judge makes a formal decision that status has ended. Those whose status is D/S, such as many in F or J status, may not accrue unlawful presence unless there is a formal finding by USCIS or an immigration judge.

As per AILA's new Practice Pointer (AILA Doc. No. 22072952), “This new guidance may be useful for undocumented students, particularly as many may currently be unable to obtain DACA benefits (or those with DACA). 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.

The INA §212(d)(3) waiver could also benefit employment-based immigrants seeking to enter in an employment-based nonimmigrant status, such as E-2 treaty investor status. This would be true irrespective of the length of time the foreign national previously overstayed; however, as previously noted, the length of the overstay will be considered as a discretionary element to granting the waiver. Thus, the length of the overstay will likely weigh more heavily in nonimmigrant categories that prohibit immigrant intent, such as E and O visas.

There is also a category of applicants that may not need waivers, although that group is significantly smaller. This group of applicants may include those who filed for adjustment of status, traveled and returned on Advance Parole but triggered the bar due to an unknown or undisclosed period of unlawful presence exceeding 180 days. It may also include those who are in the US and where USCIS specifically noted that status had ended in a denial of an application to change or extend status (such as for a previous status violation). Assuming they can overcome any other bars to admissibility, these individuals should be able to use this new policy guidance to adjust status and avoid consular processing or a Form I-601 waiver. Even if that is not possible and the person has not filed, or cannot file, the adjustment of status application, if the person traveled on their nonimmigrant visa, not knowing they were subject to the 3/10-year bars, these persons may serve the 3 or 10 period of the bar in H-1B or other nonimmigrant visa status and then consular process at the end of the period. Other than H-1B nonimmigrants from India who must wait in the excessively backlogged Indian employment-based preference categories, this would be much more likely if it were a matter of the 3-year bar, but it is nevertheless worth investigating if you do encounter this fact pattern.”

We regularly update our blog section to acquaint the community with to latest changes in Immigration policies. Please note the information in this blog is for informational purposes only and is not intended to be nor should it be construed as legal advice. We can promptly and efficiently represent clients located anywhere in the US or abroad on US Immigration Policies. If you seek further clarification, don't hesitate to contact SanSha Law Office at [email protected] or call us at 469-777-6161.