On June 24, 2022, USCIS announced changes to the agency’s interpretation of the 3-year and 10-year unlawful presence bars under INA § 2129(a)(9)(B). This change in interpretation is influenced in great part by the pending class action Velasco v. USCIS which challenges the agency’s prior interpretation. USCIS has also issued helpful policy guidance in the USCIS policy manual regarding the agency’s change in interpretation of the unlawful presence bars.

In general, under INA § 2129(a)(9)(B), a noncitizen who accrues unlawful presence in the United States for more than 180 days is subject to a 3-year inadmissibility bar, or is respectively subject to a 10-year inadmissibility bar if more than one year of unlawful presence is accrued. However, this INA provision has previously lacked guidance on the effect on a noncitizen who seeks re-entry into the United States, after departure or removal, within the 3-year or 10-year bar without obtaining an inadmissibility waiver.

The USCIS recent announcement provides guidance for exactly this matter and is effective immediately as of June 24, 2022 with prospective application to USCIS inadmissibility determinations moving forward.

This new guidance by USCIS clarifies their interpretation deeming noncitizens who accrue more than 180 days or more than 1 year of unlawful presence, respectively, during a single stay in the United States, depart, and again seek admission within 3 years or 10 years, respectively, of such departure, inadmissible.

Highlights of the change of interpretation and policy guidance include the following:

• A noncitizen whom has accrued unlawful presence for more than 180 days and departed or was removed is not considered inadmissible by USCIS under INA § 2129(a)(9)(B) UNLESS the noncitizen again seeks admission into the United States within the applicable 3-year or 10-year bar period after departure or removal.
• The 3-year or 10-year bar period is triggered upon the noncitizens departure or removal from the United States and runs continuously without interruption until 3 to 10 years after the said date of departure or removal.
• A noncitizen’s location during the 3-year or 10-year period and the manner in which the noncitizen intends to return to the United States during their 3-year or 10-year bar period will not be relevant for purposes of determining inadmissibility under INA § 2129(a)(9)(B).

We highly recommend you seek advice from an experienced immigration attorney, if you have questions as to how this new guidance may affect your case if you are seeking re-entry into the United States at any point during an applicable 3-year or 10-year bar period.

By: Jeanetly Garcia 

Jeanetly Garcia advises employers and individuals through all phases of the non-immigrant visa process. As an attorney in the H-1B Department at Reddy Neumann Brown PC she is experienced in filing nonimmigrant petitions and applications for immigrant benefits, as well as, responding to USCIS issued requests for evidence concerning an array of legal issues.