The U.S. immigration laws punish foreigners who have unlawfully stayed in the country by banning them from applying for a visa or admission for a period of time. If an individual is present in the U.S. for more than 180 days illegally, the person is not allowed to be admitted for 3 years after her departure or deportation. For those who have accumulated more than one year of unlawful presence, then for 10 years they will not be readmitted after departure or deportation. In the past, unless waivers are granted, foreigners subject to these "unlawful presence bars" must wait 3 or 10 years outside the U.S., before they can reapply for admission. A recent change in immigration policy brings good news to them.
In June 2022, USCIS issued a policy guidance allowing previously unlawfully present foreigners to serve the 3 or 10 years of non-admission within the U.S. The change is good news because these individuals no longer have to be separated from their family and friends while waiting. Before this guidance, there was confusion as to how one may meet the 3 or 10 years requirements. The new guidance confirms that the required 3-year or 10-year period starts to run after the foreigner's departure from the U.S. Further, the period continues to run without interruption for 3 or 10 years, regardless of whether the individual has returned to the U.S. or now.
The change is a major shift in USCIS policy, as illustrated by a recent case decision. In that case, the foreigner was admitted to the United States as a visitor in August 1997, overstayed until March 1999. She then reentered the U.S. again as a visitor in January 2000, and departed again in August 2001. In June 2008, she entered the U.S. again and has remained since then. She applied for a waiver of her unlawful presence ground of inadmissibility so that she can be admitted as a legal resident, which was denied by a USCIS Director. On appeal, the AAO reviewed the case in light of the new policy and concluded that a waiver is not needed. AAO explained that she was subject to the unlawful presence bar based on her previous unlawful presence for more than one year. However, 10 years have already passed since August 2001, her second departure, and she is no longer inadmissible. As a result, she does not need a waiver.
Although the new policy allows foreigners to serve the statutory periods in the U.S., an applicant for admission could be subject to other grounds of inadmissibility or other legal bars. For example, if an individual returned to the U.S. after departure without inspection, then she will not be eligible for adjustment of status. Hence, foreigners should try to return legally. Some applicants such as DACA beneficiaries may be able to return legally to the U.S. by applying for a non-immigrant visa such as F-1 or H-1B with a non-immigrant visa waiver. Other individuals may have to take other course of actions. One size does not fit all. It is critical for foreigners to first discuss their options with an experienced attorney before taking actions.
No comments:
Post a Comment