According to the Immigration and Nationality Act, immigrants who were illegally in the United States and subsequently left cannot reenter for a certain amount of time, depending on the length of their original stay. A recent court case involving an Immigration Law Office of Los Angeles client has resulted in an important policy change in this matter.
In 1996, Congress authorized specific grounds of inadmissibility for noncitizens who accrue unlawful presence in the United States. Under this rule, a noncitizen who accumulates more than 180 days of unlawful presence, departs or is removed (whichever applies), and seeks admission again within three years or ten years after leaving or being removed is inadmissible. Those wishing to return were expected to wait outside the U.S. until the ban expired.
This INA provision did not speak to the effect of returning to the United States during the statutory three-year or 10-year period without first obtaining a waiver of inadmissibility. There were neither regulations, precedent federal court decisions, nor published administrative decisions on the issue.
The USCIS, however, is now stating that an immigrant can be in the country without resetting the clock. Its policy manual now states that once the period of unlawful presence has accrued, the three-year or 10-year period begins. There is no interruption to this statutory period regardless of whether the noncitizen returns to the United States during the three-year or 10-year period. It is therefore irrelevant whether the noncitizen spent the applicable statutory three-year or 10-year period in or out of the country.
The change was made on June 24, 2022 to comply with two recent court decisions and an unpublished Board of Appeals decision from the Department of Justice.
One of these cases involved a client, who was represented by Immigration Law Office of Los Angeles, P.C. attorney Michael Piston. The client was a Japanese woman who overstayed her status by over a year, then left the U.S. and reentered some 18 years before the decision in this matter on a visa waiver. She had been living with her U.S. citizen spouse for over 10 years at the time.
Following her reentry into the U.S., the client was subject to the 10-year bar but, according to Section 212(a)(9)(B) of the Immigration and Nationality Act, that bar expired 10 years after her return.
The USCIS claimed, without any authority, that someone subject to the 10-year bar had to remain outside the U.S. for 10 years, but Attorney Piston argued that she should not have been denied permanent residency in 2019 because she was married to a U.S. citizen and over ten years had passed. In her ruling, U.S. District Judge Consuelo Marshall agreed that the bar expired after 10 years, even if the person had been in the U.S. the whole time.
Under the new policy, the following rules and conditions apply:
- When a noncitizen accrues over 180 days of unlawful presence and departs or is removed (whichever applies), USCIS does not consider them inadmissible unless they apply again for admission within three or ten years after their departure or removal (whichever applies) following the accrual of the necessary period of unlawful presence.
- Once a noncitizen departs or is removed from the country (whichever applies), the statutory 3-year or 10-year period begins and continues without interruption until 3 or 10 years after the departure or removal.
- For purposes of determining inadmissibility, a noncitizen’s location and manner of return to the United States during the statutory 3-year or 10-year period are irrelevant.
Some noncitizens may now be eligible to file a Notice of Appeal or Motion with USCIS to reopen their previously denied applications.
Attorney Piston told The Epoch Times, “This policy change would be great for our client. That means she could have been granted adjustment of status by the USCIS and she wouldn’t have had to go through all these problems.”
Over the course of his career, Michael Piston has been involved in several immigration litigation matters and won over 30,000 immigration cases. He appears to be the first attorney to ever obtain an order from a federal court directing the USCIS to grant a foreign worker employment authorization while a denial of their case was being decided. This was in a case called Stellar IT Sols., Inc. v. United States Citizenship & Immigration Services, Civil Action No. 18-2015.
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