USCIS will allow those affected by the 3 and 10 years bar of inadmissability
USCIS will allow those affected by the 3 and 10 years bar of inadmissability
Any person who resides in the United States (USA) illegally, without being authorized by the United States Citizenship and Immigration Service (USCIS), is committing a crime known as illegal presence. And although arriving in the country is a great achievement, incurring an illegal presence can temporarily or permanently revoke your ability to stay.
However, certain exceptions can appeal for the restitution of their legality to subsequently opt for the desired Green Card (if they meet all of the requirements). And, by the way, a recent lawsuit managed to change a bit the way the punishments for illegal presence are applied.
Thanks to it, some people waiting to adjust their immigration status will not have to leave the country immediately. Instead, they will be able to remain within the territory while their punishment is carried out. We explain in more detail below.
Illegal presence in the US and its consequences
The USA is one of the most mentioned destinations among those seeking more opportunities and a better quality of life. And indeed, it is a suitable option for it; but it is not enough to want or have the funds to travel. Before and during the process, it is necessary to know the country’s immigration policies well and fully comply with each one.
Nonetheless, the person must comply with specific rules even after obtaining a Green Card—for example, the time limits regarding departure from the country and the duration of the trips. Failure to do so can lead to unpleasant situations that can affect the possibility of opting for a permanent or simply legal residence. We can generally refer to them as unlawful presence and inadmissibility in the US.
We define unlawful presence as that period in which a person resides in the US without going through the typical admission procedures or receiving an entry permit upon arrival. Or, to be more concise, a person has an illegal presence in the country when the Secretary has not authorized their stay.
Each year, about 30,000 decisions are made based on the illegal presence of immigrants within the country. It may be a bit ironic considering that there is a very clear regulation regarding it, but, as it often occurs, not everyone is informed about it, which leads to some going through situations that lead to this unwanted condition.
3 and 10 years inadmissibility bar for illegal presence
To better understand this, it is best to put ourselves in context. For this, we use what is established in the US Immigration and Nationality Law; Within this, we find two failures subject to a particular type of prohibition to enter the country.
3-year ban
It is established when a person is in the US for more than 180 days in a row but less than 365 days. A 3-year ban for a forthcoming entry into the country applies here.
10-year ban
It is given when a person is in the US illegally for more than a year and then leaves the country.
A class action lawsuit against the USCIS
On March 25, 2022, the Northwest Immigrant Rights Project (NWIRP) filed a class action lawsuit challenging USCIS’s current interpretation of the 3-year and 10-year bars for unlawful presence in the US.
The lawsuit, filed in the Western District of Washington, reveals an inconsistency regarding how certain visa holders had to go through said punishments. Under the previous interpretation of the institution, they had to wait outside the US during the entire period of inadmissibility or maintain legality during the entire corresponding period.
But this does not seem to apply to people who entered the country with duly processed visas during their period of inadmissibility for illegal presence.
What the lawsuit achieved
Clarifying all of this was essential to better understand the context and achievements of the lawsuit. However, those affected will not be forced to leave the US during their period of inadmissibility as in the past. This is positive, considering how difficult it can be for many people to resume the procedures to return while in another country.
As if that were not enough, USCIS will also not deny applications for adjustment of status in cases where the person was in the United States during the period of inadmissibility without a waiver. In addition, applicants who were previously denied but meet the requirements outlined in the class action can reopen their cases so that the new interpretation of the rule applies to them.
The class action lawsuit advocates for individuals who filed for adjustment of status and re-entered the US during the three-year or ten-year inadmissibility period. This includes two levels: being denied adjustment of status because they entered the country during that period or filing Form I-601 titled “Application for Waiver of Grounds of Inadmissibility.” It does not apply to cases where the entry ban has been permanent.
Interpretation can still change
It is worth noting that it is not easy to know in which specific cases the punishment of 3 and 10 years applies. In general, it is known that people who crossed the border without having received authorization begin to accumulate illegal presence from that very moment. The situation is different for those who entered with authorization or obtained a visa but who committed the crime since the expiration of the I-94 Permit, “Entry/Departure Record.”
A pardon can be requested from the institution to continue with the legalization once the punishment has ended. However, it is not easy to obtain, and not everyone receives it. Therefore, the achievement of the demand is significant and will facilitate status adjustments for people who meet that profile.
Despite this, new modifications of the interpretation of the law by USCIS are expected, so those in this situation should remain vigilant. Meanwhile, Kannan Law reminds you that our team of immigration attorneys is available for any legal advice or to take on complex immigration cases. If you have questions about this or other related topics, do not hesitate to contact us.