Policy

UNLAWFUL PRESENCE BARS CAN RUN IN THE US, BIA & USCIS AFFIRM

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UNLAWFUL PRESENCE AND THE THREE/TEN-YEAR-BAR Under the unlawful presence grounds of inadmissibility, the three- and ten-year bars at INA § 212(a)(9)(B) penalize people who are present in the US. without any lawful immigration status for more than 6 months and 12 months respectively. This could be overstaying a visa by failing to depart the US. after one’s visa expires or it may be crossing the border and then remaining in the US. without any status. These bars do not apply until the person leaves the US. and then seeks to come back or to apply for admission. Once the three or ten years have passed, the person is no longer inadmissible. In recent years, USCIS interpreted the three- and ten-year bars as only able to run if the person is outside of the United States. Thus, if the person triggered the three- or ten-year bar and then re-entered the United States before the requisite time bar had passed, they remained inadmissible, regardless of how much time passed while they were in the United States. These bars are particularly problematic for non-citizens who entered the US. without inspection (not admitted into the US. on a visa or with parole—such as non-citizens who cross the Mexican border) since they are, in most cases, not eligible to adjust status to obtain residency (a green card) in the country. Since non-citizens who entered without inspection are not eligible to adjust status here they are required to attend an interview at the US. Consulate in their home country to obtain residency. This is where the three-year and ten-year bars become such a major obstacle for non-citizens in this situation. For many years after the three and ten-year bars came into existence in 1998, non-citizens subject to the bars had no option but to the leave the US. and apply for a waiver outside of the country and spend years separated from their family until the I-601A provisional waiver (state-side waiver) allowed for the spouses and children of US. citizens (and later permanent residents) to apply for a waiver while still in the US. If the waiver is approved they are still required to leave the country and attend the interview at the US. Consulate in their home country but this allows them to significantly reduce the amount of time they are required to be outside of the country. The current processing time for an I-601A waiver is 34 months and then they must still go through the traditional visa process, so it takes a lot of time and effort to pursue these waivers. Those who do not have a citizen/resident parent or spouse have no way of getting around the three/ten-year bar. NEW USCIS POLICY AND CASE LAW New USCIS policy guidance and a recent BIA case, Matter of Duarte-Gonzalez, 28 I&N Dec. 688 (BIA 2023), however, now officially acknowledge that the simple passage of time is enough for the three- and ten-year bars to run, regardless of whether the full time period is spent inside or outside the United States. Previously, a handful of unpublished BIA cases said the three- and ten-year bars at INA 212(a)(9)(B) could run in the United States, but with Duarte-Gonzalez we now also have a precedential BIA decision taking the same position as USCIS, that the 212(a)(9)(B) time bars can run in the United States based on the plain language of the statute. This means whether an applicant is seeking adjustment of status with USCIS or applying to adjust in immigration court (before EOIR, the Executive Office for Immigration Review), this policy applies to them. Now, USCIS and EOIR will look at the amount of time that has passed since a person triggered the unlawful presence bar, without regard to where they were physically located during that time. Once the requisite number of years have passed, the ground of inadmissibility no longer applies, and no unlawful presence waiver is needed to adjust status. LIMITED BENEFIT TO THIS CHANGE Even though USCIS and the BIA now acknowledge that the 212(a)(9)(B) time bars can run while in the United States, keep in mind a person must leave the United States to trigger one of these bars. Thus, in order for the time bar to pass in the United States, they must have somehow returned after their departure. How they returned is critical. If you entered the US on a visitor visa in 2003 and overstayed but you triggered the ten-year bar by departing the US in 2005 with advance parole to go visit a sick relative, then when you return and are paroled into the US lawfully, you may wait out the remainder of the ten-year bar in the US. If you become eligible for residency in 2016, more than ten years after you tripped the bar, then you are no longer inadmissible under INA §212(a)(9)(B) pursuant to the new policy. Practically this isn’t going to benefit many people. People in the situation described above would often be able to adjust status without a waiver anyway if they were married to a US citizen and traveled on parole. Those who wouldn’t be eligible would be those who never traveled on parole and this new policy won’t benefit them. If you entered without inspection, accrued more than a year of unlawful presence and then left the US triggering the ten-year bar and then reentered the US again without inspection then this new policy will not benefit you. By reentering without inspection you would have triggered the permanent bar under INA §212(a)(9)(C). Two types of people benefit from this policy without also having a permanent bar problem: 1) Those who re-entered the United States lawfully after a departure triggering the three or ten-year bars; or 2) Those who only triggered the three-year bar with their departure (regardless of whether they re-entered the United States lawfully or not). MATTER OF DUARTE-GONZALEZ Matter of Duarte-Gonzalez, 28 I&N Dec. 688 (BIA 2023) Non-citizens who are inadmissible for a specified period of time pursuant to section … Read more

Change to Regulations Regarding SIJS Applicants Getting Married

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Previously if a SIJS applicant who had an approved I-360 had to remain unmarried until their priority date became current and they completed the adjustment of status process to obtain legal permanent resident status or their I-360 would be automatically revoked per 8 CFR §205.1(a)(3)(iv). A change to the regulations—at 8 CFR § 204.11(b)(2)—now requires that a SIJS applicant remain unmarried only until their I-360 petition is approved. Changes to the USCIS Policy Manual A USCIS policy alert dated June 10, 2022, further explains this change of policy. See Policy Alert, Special Immigrant Juvenile Classification and Adjustment of Status, June 10, 2022, PA-2022-14. The USCIS Policy Manual was amended at Volume 6, Part J, Chapter 2, Eligibility Requirements revising the definitions of “juvenile court” and “custody,” clarifying the evidentiary requirements under Subsection 2 (Parental Reunification) and Subsection 3 (Best Interests), and revises guidance on the validity of juvenile court orders in Subsection 4 (Validity of Order). USCIS Policy Manual at Chapter 2, Section A, General Eligibility Requirement for SIJS Classification now lists: 1. Physically present in the United States at the time of filing and adjudication of the Petition;2. Unmarried at the time of filing and adjudication of Form I-360;3. Under the age of 21 at the time of filing Form I-360;4. Subject to juvenile court determination issued in the US meeting the requirements;5. Obtain US Department of Homeland Security consent; and6. Obtain US Department of Health and Human Services (HHS) consent (if applicable). The USCIS Policy Manual, Volume 6, Chapter 2, Section B, Age-Out Protections for Filing with USCIS, the USCIS Policy Manual States: If a petitioner was under 21 years of age on the date of the proper filing of the Form I-360, and all other eligibility requirements under the statute are met, USCIS cannot deny SIJ classification solely because the petitioner is older than 21 years of age at the time of adjudication. Section 235(d)(6) of the TVPRA 2008, Pub. L. 110-457 (PDF), 122 Stat. 5044, 5080 (December 23, 2008), provides age-out protection to SIJ petitioners. Long Wait After I-360 Approval Until Adjustment of Status This had been becoming more of an issue lately because of the long wait from I-360 approval until SIJS applicants would be able to adjust status to get legal permanent resident status. Due to the large number of SIJS applications, for the last 5-6 years, there has been a backlog for children from Guatemala, Honduras, El Salvador, and Mexico. As of April 2021, there are 44,000 SIJS beneficiaries remaining in the backlog. SIJS beneficiaries from El Salvador, Guatemala, and Honduras have waited an average of 4 years before their priority date is current to apply for adjustment of status. SIJS visas are part of the employment-based fourth preference category. The fourth category receives only 7.1% of the 140,000 visas generally available per year. SIJS beneficiaries are also subject to annual country caps applicable to employment-based immigration: 7% per-country limit. There is an overwhelming number of SIJS beneficiaries who are also in removal proceedings: 92% of Honduran SIJS adjustment applicants, 90% of Guatemalan applicants, and 84% of Salvadoran applicants.