New Policy Guidance On 3/10 Year Unlawful Presence Bars – May Serve The 3/10 Year Bar Inside The U.S.

May 9, 2023

On June 24, 2022, USCIS issued new policy guidance regarding the effect of returning to the United States during the statutory 3-year or 10-year period after departure or removal.

In general, a noncitizen is inadmissible under INA 212(a)(9)(B) if the noncitizen accrues more than 180 days of unlawful presence, departs or is removed (whichever applies), and again seeks admission within 3-
years (if unlawful presence is more than 180 days but less than one year) or 10 years (if unlawful presence is more than one year), respectively, after the departure or removal.

The new guidance now clarifies that the location of the person does not matter—the bars can be served in whole or in part inside the United States. In other words, a noncitizen who again seeks admission more than 3 or 10 years after the relevant departure or removal, is not inadmissible under INA 212(a)(9)(B) even if the noncitizen returned to the United States, with or without authorization, during the statutory 3-year or 10-year period.

Practical application of the new guidance, however, may be limited. The update generally helps those who traveled on their nonimmigrant visa (usually after a short trip), not knowing they were subject to the 3 / 10-year bar. These individuals may now serve the 3 or 10 year period the bard in some nonimmigrant status in the U.S.

Many would still need a nonimmigrant visa waiver to benefit from the new guidance fully. The noncitizen would need to depart, apply for a nonimmigrant visa and a waiver after the consular interview, then return to the U.S. in lawful nonimmigrant status before 3/10 yrs is reached, and complete the 3/10 yrs inside the US.

DACA holders who have traveled on Advance Parole (AP) may have already started the 3 / 10 year clock and in the process of serving the 3 / 10 year bar in the U.S.

https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220624-INA212a9B.pdf