USCIS Issues Policy Alert on the 3/10 Year Bar
As a result of an agreement reached in Federal Court on June 24, 2022, the Government issued new guidance regarding the interpretation of 3- or 10-year bar.
What does the law say about the 3/10-year bar?
Immigration law provides that a person who has resided unlawfully in the Unites States may be subject to a 3- or 10-year bar depending on the amount of time they overstayed their stay.
The 3-year bar applies to those who have accrued unlawful presence in the United States for more than 180 days but less than 1 year.
The 10- year bar applies to those who have accrued unlawful presence in the United States for one (1) year or longer.
What does this mean for those who are subject to the 3/10-year bar?
If you are subject to the 3- or 10-year bar, you cannot apply for admission for the relevant period.
In other words, you will not be permitted to apply for a green card until the bar has expired. You will have to wait for the 3 or 10 years to pass before applying for your green card.
How does the law count the 3- or 10-year bar? This is the question that the new policy clarifies.
What did the government say before the new interpretation?
The Government’s past position was that a noncitizen would only satisfy the 3- or 10-year period if the noncitizen either (1) waited the entire period outside the Unites States or (2) the noncitizen continuously maintained a lawful status in the United States during the 3- or 10-year period.
Velasco De Gomez, et al. v. USCIS – Relevant Federal Lawsuit
Plaintiffs in this lawsuit challenged USCIS’s nationwide policy that denied green card applications based on past interpretations of the “unlawful presence bar.” Plaintiffs are noncitizens who now qualify to adjust their status and become lawful permanent residents of the U.S., if it were not for USCIS’s improper interpretation of the law. Plaintiffs are individuals who were subject to the unlawful presence bar but have since waited the 3 or 10 years required to apply for their green card in the United States. See Velasco De Gomez, et al. v. USCIS.
New Policy on 3/10 Year Bar
The Government’s new policy guidance interprets the 3- and 10-year bar to mean that citizens who enter the United States lawfully after departing or being deported may satisfy the 3- or 10-year bar while in the United States.
If you departed or were deported, triggering the 3- or 10-year bar, but then lawfully returned to the United States, you have been satisfying the 3- or 10-year bar against you. If you have satisfied the 3- or 10-year bar against you, you may be eligible to apply for a green card at this time.
New Policy Highlights
- A noncitizen is only inadmissible—or not able to apply for a green card—within the 3- or 10-year period following departure or deportation.
- The 3- or 10-year period begins once the noncitizen departs or is deported (whichever applies) and continues without interruption until 3 or 10 years after the departure or deportation.
- A noncitizen’s location during the statutory 3- or 10-year period, and the noncitizen’s manner of return to the United States during the statutory 3- or 10-year period, are not relevant for purposes of determining inadmissibility under the law.
