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VISA SPOTLIGHT: THE THREE AND TEN YEAR RE-ENTRY BARS

As we have reported over the last two years, two of the most serious changes in the 1996 Immigration Act are the new three year and ten year reentry bars. The new three year bar applies to aliens who 1) were unlawfully present in the US for over 180 days but less than one year and 2) who subsequently depart the US voluntarily prior to commencement of removal proceedings, are inadmissible for three years. The alien must leave the US voluntarily or pursuant to a grant of “voluntary departure.”

The ten year bar applies to aliens unlawfully present for more than a year and who subsequently depart the US whether voluntarily or not.

The State Department has recently issued a cable providing guidance to consular posts on implementing the new three and ten year reentry bars. The cable is based on interpretations previously issued by the Immigration and Naturalization Service.

According to the State Department memo, a key difference between the three and ten year bar is the fact that the latter applies to both voluntary and involuntary departures, not just the voluntary ones.

One anomaly in the law is that after removal proceedings are commenced, if an alien voluntarily leaves the US prior to a year of unlaw status, then he or she is not subject to the reentry bar. If deportation proceedings have not yet been commenced, the bar would apply. Thus, a person might actually be better off if placed in deportation proceedings. It is important to note that this only affects three year bar cases and not ten year cases.

The State Department cable states that posts should presume that removal proceedings were not issued and that the burden is on the alien to show that removal proceedings were commenced. An applicant could present a copy of the Form I-862 Notice to Appear as proof.

The term “voluntary” also creates an interesting set of circumstances. If an alien is deported, then the three year bar does not apply. If the alien leaves voluntarily without being deported, then the three year bar could apply. The deported alien would, however, still be subject to the other reentry bar for a person seeking readmission after having been removed. Thus, the best case would be where someone is in removal proceedings, has less than one year of unlawful presence and then leaves on a voluntary departure order before a final deportation order is issued.

The Immigration and Nationality Act defines “unlawful presence” as presence in the the US without admission or parole, or presence in the US after the expiration of the period of stay authorized by the Attorney General. According to the State Department cable, there are three types of aliens to whom the term might apply:

- aliens who enter without inspection (EWI’s)
- aliens who overstay the date on their I-94s (overstays) and
- aliens who are determined by the INS or an immigration judge to have violated the terms of their stay (status violators)

No period of time prior to April 1, 1997 counts toward the unlawful presence calculation. Furthermore, no period of time while someone was under age 18, while they had a bona fide asylum application pending, if they are a beneficiary of family unity protection, or if they were a battered spouse or child will be counted.

For purposes of the three year bar (but not the ten year bar) the statute says that the clock’s ticking will be suspended for up to 120 days if an alien has a pending application for extension of stay or change of status and the applicaiton was timely filed and non-frivolous. Furthermore, the alien may not engage in unauthorized employment during that 120 day period. However, the cable notes that the INS is preparing regulations that would eliminate ANY unlawful presence if the application for extension of change of status is subsequently approved. The State Department will take the same position.

The State Department reminds consular posts in the cable that the 180 day period is not an aggregate one. For example, an alien who made two prior visits to the US and accrued four months of unlawful presence during each visit would not be subject to the bar when applying for another visa to enter the US. However, the periods of overstaying within a single stay in the US will be counted as one even if their are breaks in the status during that period. For example, if a person gets a voluntary departure order after being out of status, the clock will stop ticking during the period of voluntary departure. If the person does not leave in time, then the clock will resume ticking at that point.

With respect to persons who have conditional permanent residency either through a marriage to a US citizen or by investing under the EB-5 permanent residency program, if the person fails to petition to remove conditional status, the conditional resident’s status is automatically terminated and the unlawful presence will begin to accrue from the date the conditional status expired. The INS does have the power, however, to approve late filed conditions removal cases and backdate the approval. If this happens, the interruption in status will be overlooked and the bar can be avoided.

With respect to visa overstays, the State Department defines overstay in a manner consistent with Section 222(g) of the Immigration and Nationality Act. That section prohibits persons from applying for a visa anywhere but in their home country if they have ever overstayed on a visa in the US.

The cable specifically states that persons who are admitted with I-94s valid for “duration of status” (D/S), such as students, exchange visitors, information media representatives and holders of certain diplomatic visas, are not considered overstays until the INS, in the course of adjudicating an application for a benefit (e.g. extension of stay or adjustment of status), determines a status violation has occurred or an Immigration Judge finds the alien has violated his or her status.

Persons admitted for a date certain generally begin accruing unlawful presence either when the date on the I-94 or any extension has passed or the INS or an Immigration Judge makes a finding of a status violation, whichever comes first. If a person has not overstayed the I-94 date, a consular officer MAY NOT impose the reentry bar just because it believes that the alien violated their previous status unless the INS or an Immigration Judge has made a formal finding of this and the alien overstayed by 180 days past the date of that finding (not the point the status violation occurred). This is the case EVEN IF the alien admits to having violated that status.

Periods of time spent in “voluntary departure” do not count toward the bars. Thus, if an alien departs prior to the date on the voluntary departure order and the time before the voluntary departure order was granted does not exceed 180 days, then the bar will not apply. Note that for purposes of the three year bar, the cable is referring to voluntary departure orders issued by an INS District Director and not an Immigration Judge since the latter would take place as part of removal proceedings. See the discussion above explaining that a person would not be subject to the three year bar if they leave after the commencement of such proceedings.

With respect to demonstrating that an applicant has been in status the entire time they were in the US, the cable notes that it is not practical to require visa applicants to document his/her location and status from every moment after April 1, 1997. Instead, consular offices are directed to focus on cases “likely to produce results.” Consular officers are not to routinely undertake in-depth questioning of applicants concerning the bar unless the possibility of a previous period of unlawful presence becomes apparent through otherwise routinely available information (such as by reviewing the passport, answers on the OF-156 and OF-230 form, information on an I-130 petitions, etc.).

The State Department cable also provides guidance on the less publicized permanent reentry bar. This bar renders permanently inadmissible any alien who was unlawfully present in the US for more than a year in the aggregate, and who later enters or attempts to enter without inspection. A key difference between this bar and the three and ten year bars is that time in unlawful presence in separate stays in the US can be added together to come up with the year of unlawful stay. Periods of time out of status prior to April 1, 1997 don’t count to the bar and the only way the bar would apply is if someone attempted to reenter without inspection on or after April 2, 1998.

The State Department cable provides a very useful list of several dozen hypothetical cases and states whether the bars apply of not. Rather than listing all of them here, we are providing the cable in the Documents Collection of our web site at http://www.visalaw.com.

Waivers to the bars are eligible for immigrant applicants if they are the spouse, son or daughter of a permanent resident or citizen (interestingly, a parent of a US citizen or permanent resident is not included) and the enforcement of the bar would cause an extreme hardship to the citizen or permanent resident.

The problem with waivers is that there is very little guidance on how to file these applications. Neither the INS or the State Department have provided any real guidance. American Immigration Lawyers Association Members Carlina Tapia-Ruana and Royal Berg recently published an article in AILA’s monthly magazine which addressed some of these issues. In cases where someone has left the country and is subject to the reentry bar, then an application should be filed with the US Consulate. The procedure should be similar to applying for a waiver of any other type of ground of exclusion and Form I-601 should be used. Where an applicant is applying for an immigrant visa from within the US through adjustment of status, the waiver application should be filed with the adjustment of status application. It is not clear, however, whether applicants should use Form I-601 or Form I-212 or simply request the waiver in writing. Since the bars only apply to people trying to reenter the US, the bars will mainly affect adjust of status applicants seeking advance parole to leave the US while the permanent residency case is pending.

As far as when to file the waiver application, existing rules for I-601 waivers state that a waiver application should not be submitted to a consulate until the consular officer makes a determination that the alien is excludable. This means that one cannot apply for the waiver until the actual application of admission as a non-immigrant or immigrant is made. On the other hand, I-212 waivers can be filed at any time. Tapia-Ruana and Berg conclude that the more liberal I-212 approach should be taken both at the INS and at a US Consulate since it will be clear in many cases that the bar applies.

Now that Section 245i of the Immigration and Nationality Act is not available to many immigrant visa applicants, applications to waive the three and ten year bars should become much more commonplace.

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Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.

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