Tag Archives: unlawful presence

Immigration Reform Update: Earned Path to Citizenship and Repeals of Certain Inadmissibility Bars

On February 18, the U.S. Citizenship Act of 2021 was introduced in the House by California Congresswoman Linda Sánchez and in the Senate by New Jersey Senator Robert Menendez. The White House first announced the bill on January 20, which was the first day of the Biden Administration.

The bill is 353 pages long. It contains sweeping provisions that, if passed, will overhaul many parts of the U.S. immigration system.

It seeks to give certain undocumented immigrants Lawful Prospective Immigrant (LPI) status and an 8-year path to U.S. citizenship; allow eligible DREAMERS, TPS holders and farmworkers to immediately apply for permanent residence; repeal the 3/10 year unlawful presence bar under INA 212(a)(9)(B) and the permanent bar under INA 212(a)(9)(C); and create an exception to the misrepresentation of citizenship bar for any person who was under age 21 when the false claim was made.

In Episode 8 of The Legal Immigrant podcast, I focus on the following provisions in the reform bill:

1. Section 1101, Adjustment of Status of Eligible Entrants to that of Lawful Prospective Immigrant (LPI), and Section 1102, Adjustment of Status of Lawful Prospective Immigrants

  • Provides earned 8-year path to citizenship for certain undocumented immigrants who have been present in the U.S. on or before January 1, 2021, and certain persons who were removed from the U.S. on or after January 20, 2017, but were inside the U.S. for at least 3 years prior

2. Section 3104, Promoting Family Unity

  • Repeals the 3/10 year bar under INA 212(a)(9)(B) due to accrual of more than 180 days of unlawful presence in the U.S. prior to departure
  • Eliminates the permanent bar under INA 212(a)(9)(C) due to illegal re-entry following more than 1 year of unlawful presence or following a removal order 
  • Creates exception to the false claim to U.S. citizenship bar under INA 212(a)(6)(C)(ii) for persons who made the misrepresentation when they were under age 21

Key points to consider: 

1.  The Immigration Reform bill is bicameral (introduced in the House and Senate on February 18), but is not bipartisan (sponsored by Democrats only and no Republicans). 

The comprehensive nature of the bill and the big changes proposed will make it harder to get the necessary votes. Moderation could be needed especially when Democrats have a slight margin in the House and a 50-50 split in the Senate. Vice President Harris has the tie-breaking vote.  But a supermajority of 60 senators is normally needed to pass major legislation in the Senate.

To move forward, the full legislation might have to be split up into separate smaller bills, or get added to the budget reconciliation process. Some Republicans have voiced opposition to the Biden Administration’s approach to immigration reform. 

2.   Even if the law is passed and signed by the President, it may take up to a year for the new rules to be drafted.  And it will take some time for the new application processes and forms to be rolled out and implemented. The applicant will also have to gather documents, including evidence of identity, proof of physical presence in the U.S. for the period that is required by law, and supporting records for any waiver of inadmissibility that is needed. 

3.     If you already qualify for another way to immigrate to the United States, such as by employment-based immigration or by a legal, bona fide marriage to a U.S. citizen, it’s better to use the existing path instead of wait for the results of this reform bill. 

4.     You must not deliberately fall out of status or illegally re-enter the U.S in the hope that you will be eligible for LPI status or other immigration benefits that have yet to be passed into law. Unlawful presence and illegal re-entries to the U.S. continue to have serious immigration consequences unless the law is amended to get rid of them.

Resources cited: 

For more information on inadmissibility waivers, see:

Consent to Reapply for Admission – I-212 Waiver: Remedy to Overcoming INA 212(a)(9)(A) and (C) Bars

When do you need an I-212 Waiver (and how do you get it)?

What should you do to get your I-212 Waiver?

When do you need an I-601 Waiver due to immigration fraud or misrepresentation (and how do you get it)?

When do you need an I-601 waiver due to unlawful presence (and how do you get it)?

212(d)(3)(A) Nonimmigrant Waiver: Advantages and Disadvantages

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The Legal Immigrant podcast and this article provide general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. The sharing or receipt of this information does not create an attorney-client relationship.

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Immigration Reform Update and I-601 Waiver for 3/10-Year Unlawful Presence Bar

The Biden Administration’s U.S. Citizenship Act of 2021 calls for comprehensive immigration reform. One provision seeks to get rid of the 3/10-year unlawful presence bar. 

This would be a major departure from current law, which requires a special waiver for this inadmissibility ground. Immigrant visa applicants who have this bar must first receive an I-601 or I-601A waiver for the visa to be issued.  Nonimmigrant visa applicants with this bar need a 212(d)(3) waiver to be granted a visa. 

To hear more, click HERE for Episode 7 on The Legal Immigrant podcast or find it on Apple Podcasts.

In this episode, I focus on the immigrant waiver for the unlawful presence bar. I discuss the key differences between the I-601 and I-601A waiver, the qualifying relative and extreme hardship requirements, and the factors that USCIS considers in deciding whether to approve or deny the application. 

For more information on the unlawful presence waiver, see:

Whether any immigration reform or changes in the law will eliminate the unlawful presence bar is uncertain. In the meantime, the 3/10-year bar due to accrual of unlawful presence lasting more than 180 days – prior to departing the U.S. – continues to exist. 

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. The sharing or receipt of this information does not create an attorney-client relationship.

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Approval of I-601A Provisional Unlawful Presence Waiver + Immigrant Visa Grant = A True Success Story

U.S. Citizenship & Immigration Services (USCIS) approved the Form I-601A, Application for Provisional Unlawful Presence Waiver, of the spouse of a U.S. citizen after denying his two earlier requests. On the first try, he had prior counsel’s help. His second attempt was made pro se. With our representation in the third and final I-601A application, he persuaded USCIS to grant the waiver on the merits, based on the extreme hardships his U.S. citizen spouse would suffer if he were denied lawful admission to the United States. He further received an immigrant visa within three weeks of attending his interview at the U.S. Consulate abroad.

Problem: Unlawful Presence Bar

Section 212(a)(9)(B)(i) of the Immigration & Nationality Act (INA) states that a person who accrues unlawful presence in the U.S. for more than 180 days, but less than one year, and then departs the U.S. prior to commencement of removal proceedings, is barred from re-entering the country for three years.  The bar to re-entry is 10 years if the unlawful presence lasted one year or more. The 3/10 year unlawful presence bar is triggered when the person departs the U.S. – even if it is to legalize his status by applying for an immigrant visa at the U.S. Consulate overseas.

Our client could not adjust to permanent resident status within the United States, despite being the beneficiary of an approved I-130 immigrant petition filed by his U.S. citizen spouse. The reason is he entered the United States without proper inspection and did not meet the lawful admission requirement to file for a green card inside the country. A departure from the U.S. was necessary for him to get his immigrant visa and then return as a permanent resident.

Because he had been in the U.S. for almost 20 years without authorization (by the time the third waiver request was filed), he was subject to the 10-year unlawful presence bar to re-entry. USCIS’ grant of the I-601A provisional waiver gave him some assurance – but no guarantee – that he would be issued the immigrant visa at the U.S. Consulate. The I-601A waiver covers only the unlawful presence bar, so it is subject to revocation by the U.S. Consulate if other inadmissibility grounds apply.

In its decisions denying the previous two I-601A waiver requests, USCIS stated that prior to his last illegal re-entry, the applicant may have entered the U.S. without inspection and admission or parole on more than one occasion and he may have been unlawfully present in the U.S. for more than one year during prior stays.

I advised the applicant and his spouse that if he had indeed illegally re-entered the country after accruing more than one year of unlawful presence, he would have a permanent bar under INA 212(a)(9)(C). While a person may file a separate Form I-212 application to be excused from this permanent bar, he may not do so until he has been outside the United States for at least 10 years.

After being advised of the risk of being found inadmissible under INA 212(a)(9)(C), in addition to INA 212(a)(9)(B)(i), the applicant agreed to still move forward with the I-601A waiver application and depart the U.S. for consular processing.

Solution: Provisional Waiver

To support the I-601A waiver application, I submitted a legal memorandum clarifying the applicant had just one illegal entry to the United States and was subject only to the 10-year unlawful presence bar. I pointed out that the earlier entry date on his Temporary Protected Status (TPS) application was filled out in error by a notario – without his knowledge and consent – to meet the TPS eligibility requirement. In the TPS request, he did not provide any evidence or information reflecting that earlier entry date because it did not actually occur.

I also counseled the applicant and his spouse on the documentary evidence and information to submit to meet the extreme hardship requirement. This came with challenges because the spouse did not have any serious medical condition, life-threatening illness, or other individual factor to show she would face extreme hardship due to her staying in the U.S. without her spouse or relocating abroad to be with him.

The legal memorandum outlined a multitude of factors and the totality of the circumstances to satisfy the extreme hardship standard. For instance, we described the spouse’s vulnerability to psychological problems, her reliance on him to care for their three young children, and the poor living conditions and high crime rate in his home country.

Outcome: Waiver Approval + Immigrant Visa Grant

Within four months of receiving the Form I-601A waiver application, USCIS approved it. I next provided further counseling to the applicant and his spouse on the Immigrant Visa application process and what to expect at the visa interview.

As planned, the applicant departed the United States to appear for his immigrant visa interview at the U.S. Consulate in his home country. No additional inadmissibility grounds, such as the INA 212(a)(9)(C) bar, were found by the Consulate. The I-601A waiver excused him from the 10-year unlawful presence bar and allowed him to receive the immigrant visa.

His spouse sent me a note confirming he was admitted to the United States with his immigrant visa and was granted lawful permanent residence. She wrote, “We thank you for your diligent work and your representation. I am very satisfied with your legal services and will refer you with no hesitation.

The two prior I-601A denials and possible INA 212(a)(9)(C)(i) bar did not deter the applicant from pursuing the waiver a third time before finally receiving it and the immigrant visa 11 years after the I-130 had been filed. Thankfully, he was able to return home to his family and continue his life in the U.S. as a permanent resident, after living in the country for almost 20 years without status.

Representing the applicant in his third and final I-601A waiver request and guiding him through the Immigrant Visa process led to true success.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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USCIS Policy Change Makes Nonimmigrant Students and Exchange Visitors More Likely to Accrue Unlawful Presence Toward 3/10-Year Bar and Permanent Bar

Starting on August 9, 2018, U.S. Citizenship & Immigration Services (USCIS) and the U.S. Department of State (U.S. Consulates and Embassies) began applying a stricter policy to calculate unlawful presence for F students, M vocational students and J exchange visitors in the United States.  The policy makes nonimmigrant students and exchange visitors (as well as their dependents) who fall out of status more likely to face the 3/10 year-bar to re-entry under INA 212(a)(9)(B), following departure from the U.S. It also makes them more vulnerable to the permanent bar under INA 212(a)(9)(C), caused by illegal re-entry or attempted illegal re-entry following accrual of unlawful presence of more than one year.

The August 2018 USCIS Policy and DOS Policy state that F, M and J nonimmigrant visa holders begin to accrue  “unlawful presence”  the day after they violate the terms of their status.

With this policy change, it is no longer required that students and exchange visitors — who are admitted to the U.S. for duration of status (D/S) — be given notice of the status violation by USCIS or an Immigration Judge in order for unlawful presence to begin.  The removal of this procedural safeguard creates harsher penalties to nonimmigrants who fall out of F, M or J status, even when the violation is accidental, inadvertent, or due to extraordinary circumstances beyond their control.

[UPDATE: On February 6, 2020, the U.S. District Court for the Middle District of North Carolina issued a nationwide injunction (PDF) enjoining USCIS from enforcing the Aug. 9, 2018, policy memorandum titled, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” Until the case is resolved, USCIS will continue to apply the prior policy guidance found in the May 6, 2009 memorandum, Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(b)(i) and 212(a)(9)(c)(i)(I) of the Act (PDF).]

What is the 3/10-Year Bar Under INA 212(a)(9)(B)(i)? 

3-Year Bar

Section 212(a)(9)(B)(i)(I) of the Immigration & Nationality Act (INA) states the 3 year bar to re-entry applies if you were unlawfully present in the U.S. for more than 180 days, but less than one year, and then depart the U.S. prior to commencement of removal proceedings.  The U.S. government adds up all the days you were unlawfully present in the U.S. in a single ongoing period or stay (i.e. continuous period of unlawful presence).

The 3-year bar does not apply if you depart the U.S. after the Notice to Appear in removal proceedings is filed with the immigration court, following service of the NTA on you. But leaving the U.S. while you are in removal proceedings or being issued a removal order carries other immigration consequences.

10-Year Bar

Section 212(a)(9)(B)(i)(II) of the INA states the 10 year bar to re-entry applies if you were unlawfully present in the U.S. for one year or more, and then depart the U.S. The U.S. government adds up all the days you were unlawfully present in the U.S., even if they were from different periods or stays (i.e. the aggregate period of unlawful presence).

There are certain exceptions to the unlawful presence rules. For example, any period of unlawful presence prior to April 1, 1997 – the date the law went into effect – does not count toward the 3 year/10 year bars. Furthermore,  a minor who is unlawfully present does not accrue any time toward the 3 or 10 year bar until he turns 18.

What is the Permanent Bar Under INA 212(a)(9)(C)(i)? 

Section 212(a)(9)(C)(i)(I) of the INA inflicts a permanent bar if you illegally enter or attempt to illegally enter the U.S. following accrual of more than 1 year of unlawful presence on or after April 1, 1997.

The accrual of unlawful presence is cumulative. For example, if you were unlawfully present for 6 months in 3 different periods (i.e. 18 months total), and you then re-enter the U.S. illegally, you face the permanent bar.

Unlike with the 3/10-year bar under INA 212(a)(9)(B), there are no exceptions for minors when it comes to the permanent bar. So if you were under 18 when you came to the U.S., you accrued unlawful presence of more than 1 year, you left, and then returned to the U.S. without inspection, you face the permanent bar.

What is Unlawful Presence? 

The term “unlawful presence” is defined in section 212(a)(9)(B)(ii) of the INA. It refers to a person who “is present in the United States after expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.”

To accommodate unexpected changes in academic programs and plans, the U.S. government normally admits F, M, and J nonimmigrants for duration of status (D/S) instead of up to a specific date.  This means nonimmigrant students and exchange visitors may remain in the U.S. as long as they maintain their status, i.e. have a full course of study or remain in the exchange program, avoid unauthorized employment or other unauthorized activities, and timely complete their academic or exchange program or obtain an extension.

What are the Effects of the Unlawful Presence Policy Change? 

Until the policy change went into effect, USCIS and the DOS interpreted the law to require notice of a status violation to persons admitted for D/S in order for unlawful presence to begin.  A formal finding of a status violation is made by USCIS, an Immigration Judge, or the Board of Immigration Appeals in the context of an application for an immigration benefit (e.g. change of status or extension of status request) or in removal proceedings, whichever is earlier.

A prior USCIS May 6, 2009 memorandum stressed “the accrual of unlawful presence neither begins on the date that a status violation occurs, nor on the day on which removal proceedings are initiated.” The memo noted,”…it is important to comprehend the difference between being in an unlawful immigration status and the accrual of unlawful presence (‘period of stay not authorized’). Although these concepts are related (one must be present in an  unlawful status in order to accrue unlawful presence), they are not the same.” 

With the policy change, USCIS no longer distinguishes between falling out of status (including minor and technical violations) and accruing unlawful presence. Rather than considering unlawful presence to begin accruing the day it denies an application or petition for immigration benefits, USCIS will now find that unlawful presence began retroactive to the date it determines a status violation occurred.  The DOS updated its Foreign Affairs Manual to incorporate this policy change and guide consular officers in determining whether the unlawful presence bar applies. 

Under the new policy, “unlawful presence” will begin the day after a status violation occurs, even if the person has no idea that s/he has fallen out of status. Examples include accidentally engaging in unauthorized employment; relying on erroneous advice by a Designated School Official (DSO) regarding reduced course load; and missing work for 90 days or more due to a serious injury while on Optional Practical Training (OPT).

USCIS will apply the policy retroactively; nonimmigrant students and exchange visitors who are found to have violated their status before the new policy took effect will also begin to accrue unlawful presence as of August 9, 2018.

F, M or J nonimmigrants who failed to maintain status before August 9, 2018, start accruing unlawful presence based on that failure on August 9, unless they already started accruing unlawful presence on the earliest of the following:

  • The day after USCIS denied the request for an immigration benefit, if USCIS made a formal finding that they violated their nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after the Form I-94, Arrival/Departure Record, expired, if the F, M or J nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge ordered them excluded, deported or removed (whether or not the decision is on appeal).

F, M or J nonimmigrants who failed to maintain status on or after August 9, 2018, start accruing unlawful presence on the earliest of the following: 

  • The day after the F, M or J nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he engages in an unauthorized activity;
  • The day after completing the course of study or program (including any authorized practical training plus any authorized grace period)
  • The day after the Form I-94 expires, if the F, M or J nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge orders them excluded, deported or removed (whether or not the decision is on appeal)

When determining whether an F, M or J nonimmigrant accrued unlawful presence and was no longer in authorized stay, USCIS will consider information related to the person’s immigration history, such as:

  • information in the systems available to USCIS
  • information in the person’s record, including the person’s admissions concerning his immigration history or other information discovered during adjudication of an application or petition
  • information obtained through a Request for Evidence or Notice of Intent to Deny, if any

Conclusion

USCIS’ unlawful presence policy change, in combination with its updated guidance on Notices to Appear and Requests for  Evidence, will have dire consequences for nonimmigrant students and exchange visitors, as well as their dependents.

While there is a 212(d)(3) nonimmigrant waiver and a Form I-601/INA 212(a)(9)(B)(v) immigrant waiver for the 3/10 year unlawful presence bar, they come with certain eligibility standards and they are not granted in every case. There are also limitations to obtaining a Consent to Reapply (I-212 waiver) to be excused from the permanent bar under INA 212(a)(9)(C).

New policies are not as binding as changes in the law passed by Congress, or regulations issued through notice-and-comment rulemaking. Still, unless the policy change is rescinded or is struck down by federal courts, it reflects how USCIS and the DOS will calculate unlawful presence for F-1, M-1 and J-1 nonimmigrants and their dependents (F-2, M-2 and J-2) as of August 9.

For more information, read our related articles:

Updated Policy Makes It Easier for USCIS to Deny Petitions and Applications Without First Issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID)

Updated Notice to Appear (NTA) Guidance Requires USCIS to Initiate Removal Proceedings In More Cases

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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