Q: Has USCIS recently relaxed the 3-year/10-year bar for unlawful presence?
A: Yes, it has. USCIS recently clarified, in writing, that any 3-year or 10-year reentry ban triggered by unlawful presence continues to run even if the individual reenters the United States during the bar period—though they reenter without inspection or otherwise. This is consistent with prior BIA decisions and federal court rulings. We can refer to this grace period as the “statutory countdown.”
Q: Who benefits from this new clarification?
A: For instance, someone who accrued between 6 months and 1 year of unlawful presence, then departed, would have faced a 3-year reentry bar. Or someone who accrued over 1 year of unlawful presence would have faced a 10-year bar. Under the new clarification, these bars continue to “count down” whether the person remains outside the U.S. or reenters without inspection. If the bar period has fully elapsed, the inadmissibility might no longer apply, and they might not need a waiver. However, note that reentering without inspection may raise other issues, such as misrepresentation or additional immigration violations, for which a separate waiver might still be required.
As an example: Suppose someone overstayed by 7 months, left the U.S., triggered the 3-year bar, and then reentered on some type of visa or parole after 1 year. If the clock continues to run, by the end of the original 3-year ban period, the bar would presumably have expired. This means they would no longer be subject to that particular bar. The same logic applies to the 10-year bar if the person returns after fewer than 10 years. Once 10 years from the date of departure have passed, they should no longer be subject to that specific bar for unlawful presence—although they could still face other inadmissibility grounds.
If someone was denied a visa or forced to file a waiver in the past because the 3/10-year clock was paused, they might now have grounds to seek a Motion to Reopen if the new interpretation benefits them.
Contact
(714) 295-0700
greencardandvisa@gmail.com
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