Understanding the Updates on Unlawful Presence Bars

Changes from USCIS and the Board of Immigration Appeals (BIA) have significantly updated how unlawful presence bars are treated. These changes may simplify the immigration process for many individuals affected by the three- and ten-year unlawful presence bars. Let’s explore what has changed and who stands to benefit.

What Are the Three- and Ten-Year Unlawful Presence Bars?

Under U.S. immigration law, individuals who stay beyond their authorized period in the United States may accrue unlawful presence. If they leave the country, they could trigger either a three-year or ten-year bar from re-entering. Here’s a summary of how these bars work:

• Three-Year Bar: If someone has been unlawfully present for more than 180 days but less than one year and then departs the United States, they are barred from re-entering the U.S. for three years.
• Ten-Year Bar: If someone has been unlawfully present for one year or more and then departs the United States, they are barred from re-entering the U.S. for ten years.

Previously, individuals had to remain outside the U.S. for the entire bar period. They could return only with a waiver. However, there has been a significant change.

The Updated Policy: Serving the Bar Inside the U.S.

USCIS now considers the time passed since a person triggered the unlawful presence bar. It disregards their physical location during that time. Once the required number of years passes, the ground of inadmissibility no longer applies. No unlawful presence waiver is needed.

Seeking a waiver remains an option for eligible individuals. This applies to those with a pathway to permanent residence before the time bar ends. The updated USCIS guidance and recent BIA decision do not change the process for obtaining unlawful presence waivers. They clarify that a waiver is unnecessary once the three- or ten-year bars have passed.

In June 2022, USCIS issued an updated policy, and in February 2023, the BIA confirmed this change through the Matter of Duarte-Gonzalez decision. Individuals who have triggered the three—or ten-year bars can complete the required time period while inside the United States. They no longer have to remain outside the country for the bar period to lapse. This change provides significant relief.

Who Benefits from This Policy Update?

This policy change benefits two main groups:

1. Individuals Who Re-Entered Lawfully: If someone left the U.S. and triggered the three- or ten-year bar but returned lawfully (e.g., with a valid visa), they can now complete the bar period within the U.S. and no longer need to stay outside to have the bar lapse.
2. Individuals Who Triggered Only the Three-Year Bar: If someone triggered the three-year bar and returned—lawfully or unlawfully—they are no longer inadmissible once the three years have passed, provided they did not also trigger the permanent bar.

The Permanent Bar Still Applies

It’s important to note that the permanent bar remains in effect for individuals who accrued more than one year of unlawful presence, departed, and then re-entered or attempted to re-enter unlawfully. Such individuals must remain outside the U.S. for ten years before seeking permission to return.

Examples of Real-Life Scenarios

• Scenario 1: Lawful Re-Entry
  Jane entered the U.S. in 2000 with a Border Crossing Card, overstayed until 2007, and then left briefly. She re-entered lawfully a week later with the same card. Now, over ten years later, Jane is no longer subject to the ten-year unlawful presence bar of inadmissibility, as the ten-year bar has lapsed.
• Scenario 2: Three-Year Bar
  Lilly entered the U.S. without inspection in 2003, stayed for nine months, and left briefly before returning after two weeks. Since more than three years have passed since she triggered the three-year bar, Lilly is no longer subject to the three-year unlawful presence bar of inadmissibility.
• Scenario 3: The Permanent Bar
  Amos entered the U.S. without inspection, left, and then re-entered without inspection after accruing more than one year of unlawful presence. Despite ten years having passed, he remains subject to the permanent bar and must stay outside the U.S. for ten years before seeking permission to return.

Key Takeaways

USCIS and the BIA now recognize that the three- and ten-year unlawful presence bars can run inside or outside the U.S. This acknowledgment aligns with the statutory language. This change may benefit individuals who triggered the ten-year bar and later re-entered lawfully. It also benefits those who triggered only the three-year bar. However, careful screening of each case is essential, as other inadmissibility issues may still apply.

These changes provide significant relief for many individuals subject to the three- and ten-year unlawful presence bars. Individuals can now serve these bars without leaving the U.S. This change allows them to meet requirements while staying in the country. Each case must still be assessed individually. Other grounds of inadmissibility, such as the permanent bar or fraud-related issues, may still apply.

If you or someone you know is dealing with unlawful presence bars and wondering how these updates might apply, consider contacting immigration attorney Osas Iyamu for help navigating these changes and determining if you qualify for relief under the updated policies.

For information on unlawful presence, waivers, and other immigration guidance, follow our blog or contact our office. Immigration law can be complex, but understanding these updates could make all the difference for your case.