What should I do about the new 3-year and 10-year illegal presence bars?

What should I do about the new 3-year and 10-year illegal presence bars?

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Recently, there have been a series of events that are aggressively changing US immigration laws. In addition to everything that can be said about the new government, it seems to be part of a social uprising.

Within these disturbances, the laws of unlawful presence have been equally affected. And now, the USCIS has changed how these laws should be interpreted when processing cases of this type.

And it is not an issue that should be minimized, as it is a change with immediate effect. Therefore, it can be seen as a significant exchange in the way this group of laws will work today. Let’s get to know them better.

The law of 3 and 10-year unlawful presence

First, unlawful presence is defined, as its name indicates, as the moment in which a person enters the US illegally. These laws will apply depending on the length of an illegal presence in the country.

The fact that a person is in the US illegally is sufficiently criminal to be deportable. Thus, this law is a response to the illegal stay of non-citizens, who, for various reasons, remain in the US unlawfully.

It is also common for this law to be triggered when the person in unlawful presence status leaves the country and seeks re-entry. In such cases, the inadmissibility label becomes a probability.

This situation can occur under various circumstances, but the two main ones are illegal entry and visa expiration. In both cases, no agency authorizes the person to stay in the country; consequently, they become unlawful.

The case of illegal entry is frequent, especially among Latino immigrants from Central America and Mexico. Only in these cases is it rare that the person in a state of unlawful presence leaves the country or attempts to do so.

Nonetheless, in cases of visa expiration, the situations that arise can be varied. In other cases, they are people who came to the US intending to live in the country and took advantage of the legality of the visa.

However, they are people who, for various reasons, were forced to stay in the US beyond what the visa allowed them. Although in the latter situations, it is rare to get to the point of receiving a sanction for unlawful presence.

Consequences of unlawful presence

The consequences of unlawful presence within the US depend directly on the person’s time in this country. The first sentence is served after 180 days.

It is also known as the 3 and 10-year unlawful presence bar because of the 2-time slots that can be received as punishment. So, these are the 2 possibilities when facing these laws.

If you accumulate more than 180 days but less than one year of unlawful presence within the US, you will not be permissible for visa selection or entry into the country for 3 years. So, in addition to not being able to enter the country, you will always be labeled “Inadmissible” for your visa applications, hindering the process.

And even worse, if you accumulate more than one year of unlawful presence within the US, the period of inadmissibility and restriction of entry into the country reaches 10 years. In these cases, it is even possible that you will be disqualified during all that time.

In any of these cases, the inadmissibility label may be removed under certain circumstances. You can file petitions such as an I-290B, a notice of appeal, or a motion. However, it should be mentioned that this process can be challenging.

An important point to emphasize when appealing is that you should write “Return to the United States during a 3-year or 10-year statutory period” for ease of identification to avoid having your application rejected for untimely filing.

The demand from NWIRP to USCIS

The event under which the facts revolve is the class action lawsuit by the Northwest Immigrant Rights Project (NWIRP) regarding interpreting the punishments taken in unlawful presence cases in the US.

This lawsuit was filed on behalf of the Western District of Washington. The case specified that certain inconsistencies harm many people in how these laws are interpreted.

The problem was that even people with visas had to wait the punishment period of 3 or 10 years outside the country while people who processed their visas correctly could enter, ignoring the specifications described above.

As a result of this lawsuit, it was possible to advance the rights of immigrants and people who, for various reasons, were affected by this law. The change gives new opportunities to those who had lost all of their opportunities to enter the US.

The new policy of the USCIS

With the new USCIS policies, persons to whom this law applies because of their unlawful presence in the country can continue with the proceedings without the need to be deported.

It is more than clear how tremendously positive this is for people who previously had to be deported. This issue often hindered their efforts to process their papers.

In addition, those who have already been deported have the opportunity to open their cases. This way, they can have a second chance to re-enter the US and obtain their visas and even Green Cards.

However, this does not apply to those who are permanently banned from entering the US. It is because these bans are not usually related to unlawful presence but to serious felony convictions.

How did it work before?

The larger issue with this law is that, in the past, it used to be a serious problem for immigrants. As we mentioned, this law typically applies to those looking to make a life in the US and who have yet to settle their papers in the country entirely.

Immediate deportation from the country and a punishment of many years, which is difficult to appeal, often leave immigrants homeless. It caused a lot of difficulties.

When a law does not work, it has the opposite effect of what is expected. In these cases, that’s what occured. It was expected that thanks to this law, people would be forced to re-enter illegally and look for ways to be invisible to immigration officials.

So, the misinterpretation and misapplication of this law ended up causing more chaos than it was intended to fix. And now, with the recent changes, the aim is to apply it more humanely.   

What’s new, and what can change?

From now on, the law will be interpreted this way, and that’s all. The reality is more complex and is that since it is a law subject to change, it can still change its interpretation and benefit, or not, the people it surrounds.

Since this is a remarkably recent change, there is always the likelihood that the interpretation will change again in light of other cases and perspectives. That’s why we must be attentive to the news about immigration laws.

We recommend an immigration lawyer if you feel lost on these issues and are interested in migrating to the US. We are highly skilled immigration lawyers who will provide you with the best possible service. 

You can schedule an appointment with us or ask for more information here, so we will be very happy to assist you and make your case a success.