New USCIS Policy Alert on Returning to US During 3- or 10-Year Period After Departure or Removal

U.S. Citizenship and Immigration Services (USCIS) issued a policy alert on inadmissibility under § 212(a)(9)(B) of the Immigration and Nationality Act (INA), specifically, the effect of returning to the United States during the statutory 3- or 10-year period after departure or removal (if applicable).

Under the policy guidance, a noncitizen who again seeks admission more than 3 or 10 years after departure or removal is not inadmissible under INA 212(a)(9)(B), even if the noncitizen returned to the U.S., with or without authorization, during the statutory 3-year or 10-year period.

According to INA, if a noncitizen accrues more than 180 days but less than a year of unlawful presence during a single stay in the United States, departs, and again seeks admission within 3 years of such departure, the noncitizen is inadmissible. If a noncitizen accrues 1 year or more of unlawful presence during a single stay in the United States, departs or is removed from the United States, and again seeks admission within 10 years of such departure or removal, the noncitizen is inadmissible.

A noncitizen’s location during the statutory 3- or 10-year period and the noncitizen’s manner of return to the United States during the statutory period are “irrelevant” for purposes of determining inadmissibility under INA § 212(a)(9)(B), USCIS said.

In 1996, Congress provided specific grounds of inadmissibility related to a noncitizen’s accrual of unlawful presence in the United States, including inadmissibility under INA 212(a)(9)(B).  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 or 10-years, respectively, after the departure or removal. This INA provision does not speak to the effect of returning to the United States during the statutory 3-year or 10-year period without first obtaining a waiver of inadmissibility.

There are neither regulations, precedent federal court decisions, nor published administrative decisions on the issue. However, more recently, two federal district courts have issued decisions on this issue, concluding that the statutory 3-year and 10-year periods run from the date of departure or removal (whichever applies) without interruption.

USCIS has issued this guidance to explain the effect of returning to the United States during the statutory 3-year or 10-year period after departure or removal (whichever applies) on inadmissibility determinations under INA 212(a)(9)(B).

USCIS has not previously issued guidance on this specific issue in a policy memorandum, the Adjudicator’s Field Manual, or the Policy Manual. USCIS is now issuing this policy guidance to memorialize clear, express, and public-facing policy guidance in the Policy Manual regarding the impact of returning to the United States during the statutory 3-year and 10-year periods of inadmissibility under INA 212(a)(9)(B).

This policy guidance, which is consistent with two recent district court decisions and an unpublished BIA decision on this issue, will ensure efficient and consistent adjudication in such cases, and enable the government to preserve significant resources. This guidance contained in Volume 8 of the Policy Manual is effective immediately and applies prospectively to USCIS inadmissibility determinations made on or after June 24, 2022. The guidance contained in the Policy Manual is controlling and supersedes any prior related guidance on the topic.

In addition, some noncitizens may be eligible to file a motion to reopen their previously denied application with USCIS using a Notice of Appeal or Motion (Form I-290B).

Policy explains that USCIS does not consider a noncitizen who has accrued more than 180 days of unlawful presence and has departed or been removed (whichever applies) inadmissible under INA 212(a)(9)(B) unless the noncitizen again seeks admission to the United States within the statutory 3-year or 10-year period after departure or removal (whichever applies) following accrual of the requisite period of unlawful presence.

Policy states that the statutory 3-year or 10-year period begins to run once the noncitizen departs or is removed (whichever applies) and continues without interruption from that date until 3 or 10 years after such departure or removal. Policy further states that a noncitizen’s location during the statutory 3-year or 10-year period and the noncitizen’s manner of return to the United States during the statutory 3-year or 10-year period are irrelevant for purposes of determining inadmissibility under INA 212(a)(9)(B).