INS Revises Definition of "Unlawful Presence" for Purposes of the 3- and 10-Year Bars

IMMIGRATION LAW & POLICY

Obtaining Lawful Permanent Residence Status

INS REVISES DEFINITION OF "UNLAWFUL PRESENCE" FOR PURPOSES OF THE 3- AND 10-YEAR BARS
Immigrants' Rights Update, Web Edition, July 15, 2002

The Immigration and Naturalization Service has modified the definition of "unlawful presence" that the agency uses for purposes of the 3- and 10-year bars to admission due to unlawful presence. The agency now considers that the time that a noncitizen spends in the United States in deferred action status does not count as time unlawfully present in the country.

Individuals whose adjustment of status applications are pending denial or were denied because they were considered to have accrued unlawful presence while in deferred action status may have their cases re-evaluated due to this policy change. In addition, the time that noncitizens spend in the country after applying for temporary protected status (TPS) or deferred enforced departure (DED) status before these applications are adjudicated will not count towards unlawful presence as long as the applications are ultimately approved. The new policy is contained in a memorandum issued by INS Executive Associate Commissioner Johnny Williams.

Under section 212(a)(9)(B) of the Immigration and Nationality Act, noncitizens who were unlawfully present in the U.S. for a period longer than 180 days, who departed the U.S. before any removal proceedings were commenced against them, and who then seek admission to the country are inadmissible for a period of three years. Noncitizens who are unlawfully present for one year or more who leave the country and then seek admission are inadmissible for a ten-year period. The INS has not issued regulations concerning this statutory provision but instead has interpreted it in a series of memoranda (see, e.g., "Unlawful Presence for Purposes of 3- and 10-Year Bars Tolled for Entire Time Nonimmigrants' Applications for Change of Status or Extension of Stay are Pending," Immigrants' Rights Update, Apr. 11, 2000, p. 5).

INS Memorandum "Unlawful Presence," HQADN 70/21.1.24-P (Jun. 12, 2002).