USCIS issues new policy guidance on effect of returning to the United States during the statutory 3-year or 10- year period after a departure or removal

On June 24, 2022 the U.S. Citizenship and Immigration Services (USCIS) issued new policy guidance  to explain the effect of a non-citizen returning to the United States during the statutory 3-year or 10-year period after departure or removal (whichever applies) on inadmissibility determinations under secion 212(a)(9)(B) of the Immigration and Nationality Act.

Under this new interpretation, a foreign national who again seeks admission in the United States after the expiration of either a 3 or 10-year ban to enter the United States is not considered inadmissible even if he or she returned to the United States, with or without authorization, during the statutory ban period. Essentially, the location of the non-citizen while the statutory 3 year or 10 year period runs no longer matters. 

This new policy is a significant change to USCIS’s previous interpretation. In 1996, Congress passed a law that specified the grounds of inadmissibility regarding the accrual of unlawful presence in the United States by a noncitizen individual. According to the law, a foreign national is inadmissible if she or he accrues more than 180 days of unlawful presence in the United States, departs or is removed, and again seeks admission within 3- years (if they departed the U.S.) or 10-years (if they were removed from the U.S.). Previously USCIS interpreted this to mean that a non-citizen is inadmissible to the United States if they did not spend the entire statutory 3 year or 10 year period outside of the United States.

Now however, USCIS will not deem a noncitizen individual who has accrued 180 days or more of unlawful presence inadmissible after the expiration of the statutory ban period regardless of his or her location. In effect, this means that certain non-citizens can now file for adjustment of status in the United States without filing a I-601 waiver, which can save them considerable time and money. If you think this new interpretation  may apply to your situation, please check with our attorneys. Some non-citizens may also be able to file a motion to reopen their case if they were denied based on USCIS’s now changed policy.