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INS ISSUES FURTHER GUIDANCE ON NEW THREE AND TEN YEAR BARS
The Immigration and Naturalization Service released further guidance on the implementation of the new immigration law's three and ten year bars. The new rules will bar persons illegally in the US for more than 180 days from reentering the US in any legal status for three years and those out of status for more than one year will be barred from reentering the US for ten years. 
The memorandum restates an earlier stated INS position that one must actually depart the US and seek readmission for the bars to take effect. If a person can adjust status without leaving the US, then the bars are not a factor. Those who previously have violated their immigration status are usually barred from processing a permanent residency application from within the United States. Currently, the main way to get around this requirement and process in the United State would be by taking advantage of Section 245i of the Immigration and Nationality Act which allows a person to process in the US if they pay a $1000 penalty fee.
The memorandum noted that the period of unlawful presence in the US must be continuous. If, for example, an alien made two prior visits to the US and accrued four months of unlawful presence during each visit, the two periods would not be counted in the aggregate for purposes of invoking the bars.
The statute states that certain periods of time spent in the US do not count toward the continous period of unlawful presence. They are period of time spent while the alien is -
* under the age of 18;
* a bona fide applicant for asylum;
* under family unity protection pursuant to Section 301 of the Immigration Act of 1990; or
* a battered spouse or child able to show a substantial connection between the status violation and the abuse.
The INS further states that the first 120 days of time spent awaiting an extension of non-immigrant status or a change of non-immigrant status are not considered as counting toward the bars. 
Previously, the INS stated that the 120 day tolling period also applied to adjustment of status to permanent residency cases. This created considerable controversy since it is not unusual in some areas for adjustment cases to take more than a year to process and applicants would undoubtedly become subject to the bar while awaiting a decision on the case. The INS now states that aliens with properly filed applications will not have any time spent waiting for adjudication counted toward the bars. This tolling will also cover renewal of a denied adjustment of status application in court proceedings.
The INS does note, however, that the tolling would not cover cases where an applicant is first served with a notice to appear for removal proceedings and then submits an adjustment of status application afterwards.
The INS has stated that the following persons ARE lawfully present in the US and are not subject to the bars:
* aliens with properly filed adjustment of status to permanent residency applications;
* aliens admitted as refugees or who are granted asylum;
* certain aliens granted withholding of deportation/removal;
* aliens granted Deferred Enforced Departure pursuant to an order by the President;
* aliens granted Temporary Protected Status;
* certain Cuban and Haitian entrants.
The INS has stated that the following persons ARE NOT considered to be in a period of lawful status:
* aliens under an order of supervision;
* aliens granted deferred action status;
* aliens with pending applications for cancellation of removal;
* aliens with pending applications for withholding of removal;
* aliens issued voluntary departure prior to, during, or following proceedings;
* aliens granted satisfactory departure; and
* aliens in Federal court litigation.
At the annual meeting of the American Immigration Lawyers Association in Orlando last month, Paul Virtue, author of the INS memo took addressed hundreds of immigration lawyers and noted that many issues raised by audience members had not been considered and that in further meetings between the American Immigration Lawyers Association and the INS, additional clarifications and modifications were likely to be issued. 
Responding to revelations that more than 180,000 foreigners became citizens last year without complete background checks, the Immigration and Naturalization Service has begun the process of stripping nearly 5,000 persons of their citizenship. In these cases, the person losing their citizenship either had a criminal arrest that would have resulted in a denial of citizenship or the applicant lied about his or her criminal history. In the 2,000 cases where a person is losing citizenship because of lying on the application form on the question of prior arrests, the arrest would not make the person inelibible for citizenship. 
The INS emphasized that despite the denaturalizations, more than 1,000,000 people got their citizenship last year and that the program generally works well. Nevertheless, the INS continues to be criticized for lax background checking. 
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