ULP Bar Can Run in the United States!
On June 24, 2022, U.S. Citizenship & Immigration Services (USCIS) issued a new policy alert for the 3-year and 10-year bars. According to this alert, individuals who lawfully entered the United States after triggering the 3 year or 10 year bar can now apply for Adjustment of Status without a waiver so long as 3 years or 10 years have passed since the last departure. This new policy is now inline with several federal district court decisions and administrative decisions.
WHAT THIS MEANS:
If you previously overstayed a visa or were otherwise present without status, left the United States, and then re-entered with a visa several years ago, you might now be eligible for your Lawful Permanent Residency or greencard, even if you do not have a qualifying relative. In other words, the 3 years or 10 years can now run in the United States as long as you were inspected and admitted at your last entry.
If USCIS denied your application on or after April 4, 2016, solely based upon inadmissibility under INA 212(a)(9)(B) and your return to the United States during the statutory three-year or 10-year period, you may file an untimely motion to reopen if certain criteria are met so long as you do it before December 27, 2022.
BACKGROUND:
Under our immigration statutes, an individual who accrues more than 180 days of unlawful presence, and departs the United States or is deported, triggers the 3 year bar. INA 212(a)(9)(B)(i)(I). If the individual accrues more than 1 year of unlawful presence and departs the United States, they trigger the 10 year bar. INA 212(a)(9)(B)(i)(II). Previously, USCIS interpreted this to mean that the 3 years and 10 years had to be spent outside the United States even if the person sought admission and returned lawfully to the United States after triggering one of these bars. The prior interpretation kept many people who were otherwise eligible to adjust their status within the United States from getting their Lawful Permanent Residency or greencard because they did not meet the requirements for the waiver.
The waiver of the unlawful presence bar requires the individual to show extreme hardship to a U.S. Citizen or Lawful Permanent Resident parent or spouse. Children do not meet the requirements for a qualifying relative. For more information on this waiver, read this!
SPEAK TO AN IMMIGRATION ATTORNEY:
This area of law is complicated. We highly recommend you speak to an immigration attorney today to determine if this new policy helps you or if you need to file a Motion to Reopen. If you were previously told you could not get your greencard without a waiver of this 10 year bar, speak to an immigration attorney today to determine if you are now eligible for your greencard. The attorneys at Shaftel Law will be glad to help you on your immigration journey!