New changes in the law regarding inadmissibility after an illegal presence
New changes in the law regarding inadmissibility after an illegal presence
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Last June, USCIS made some changes in the law regarding the INA 212(a)(9)(B) Policy Manual Guidance in which now, the agency will not be considering a noncitizen inadmissible after an illegal presence unless they seek admission within the statutory period after departure or removal.
In more detail, USCIS now does not consider a noncitizen who was accrued more than 180 days of unlawful presence and has departed or been removed (whichever applies) inadmissible under INA 212(a)(9)(B) unless the noncitizen again seeks admission to the United States within the statutory 3-year or 10-year period after departure or removal (whichever applies) following accrual of the requisite period of unlawful presence.
Also, the new policy guidelines establish that the statutory 3-year or 10-year period begins to run once the noncitizen departs or is removed. It continues without interruption from that date until 3 or 10 years after such departure or removal.
In addition, it states that a noncitizen’s location during the statutory 3-year or 10-year period and the noncitizen’s manner of return to the United States during the statutory 3-year or 10-year period is irrelevant for purposes of determining inadmissibility under INA 212(a)(9)(B).
Background information
In 1996, the United States Congress provided specific grounds of inadmissibility related to a noncitizen’s accrual of unlawful presence in the United States, including inadmissibility under INA 212(a)(9)(B).
“A noncitizen is inadmissible under INA 212(a)(9)(B) if the noncitizen accrues more than 180 days of unlawful presence, departs or is removed (whichever applies), and again seeks admission within 3 years or 10 years, respectively, after the departure or removal”, the policy explains.
Recently, two federal district courts have issued decisions on the issue, concluding that the statutory 3-year and 10-year periods run from the date of the departure or removal without interruption.
This policy guidance, issued by USCIS, was done to explain the effect of returning to the United States during the statutory 3-year or 10-year period after departure or removal (whichever applies) on inadmissibility determinations under INA 212(a)(9)(B).
It also explains that some noncitizens may be eligible to file a motion to reopen their previously denied application with USCIS using a Notice of Appeal or Motion (Form I-290B).
If you have any questions regarding your immigration status in the United States, please get in touch with an immigration lawyer in San Diego, California, today. At Kannan Law, we are at your service.