On June 24, 2022, USCIS updated its Policy Manual. New policy is intended to make it easier for people to obtain a green card without having to apply for an inadmissibility waiver.
Purpose
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy
Manual on inadmissibility under section 212(a)(9)(B) of the Immigration and Nationality Act
(INA), specifically, the effect of returning to the United States during the statutory 3-year or 10-
year period after departure or removal (if applicable).
Under this new policy guidance, a noncitizen who again seeks admission more than 3 or 10 years after the relevant departure or removal, is not inadmissible under INA 212(a)(9)(B) even if the noncitizen returned to the United States, with or without authorization, during the statutory 3-year or 10-year period.
Background
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.4 There are neither regulations, precedent federal court
decisions, nor published5 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 is issuing 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.7 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 reopen8 their previously denied application with USCIS using a Notice of Appeal or Motion (Form I-290B).
For more information, see the Unlawful Presence and Inadmissibility webpage.
Policy Highlights
• 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.
• 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.
• 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).
Untimely Motions to Reopen for Certain USCIS DenialsOn June 24, 2022 USCIS published new policy guidance in the USCIS Policy Manual concerning the effect of returning to the United States during the statutory three-year or 10-year period after departure or removal. Under this policy guidance, a noncitizen who again seeks admission more than three years or 10 years after the relevant departure or removal is not inadmissible under INA 212(a)(9)(B), even if the noncitizen returned to the United States, with or without authorization, during the statutory three-year or 10-year period.
Generally, under 8 CFR 103.5(a)(1)(i), a motion to reopen filed by an applicant or petitioner must be filed within 30 days of the decision that the motion seeks to reopen. However, on or before December 27, 2022, you may file an untimely motion to reopen your previously denied application with USCIS on Form I-290B, Notice of Appeal or Motion, and in accordance with the form instructions and filing fee, if:
Read more here.
More Information about Unlawful Presence and the BarsYou can find more information on unlawful presence in AFM Chapter 40.9.2 (PDF, 1017.74 KB). You can also find additional information about grounds of inadmissibility in the USCIS Policy Manual.
Read here.
Whether an unlawful presence ground of inadmissibility applies to you depends on the immigration benefit you are seeking.
Depending on the immigration benefit you are seeking, the law may exempt you from the ground of inadmissibility.
If you are inadmissible due to one or more of the unlawful presence grounds of inadmissibility, you generally cannot obtain a visa from the U.S. Department of State, enter the United States at a port of entry, or obtain an immigration benefit such as adjustment of status (Green Card) in the United States without first obtaining a waiver or another form of relief (such as consent to reapply for admission).
You can find information about some of the waivers or forms of relief on the following form pages:
Read new policy at USCIS website.
Purpose
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy
Manual on inadmissibility under section 212(a)(9)(B) of the Immigration and Nationality Act
(INA), specifically, the effect of returning to the United States during the statutory 3-year or 10-
year period after departure or removal (if applicable).
Under this new policy guidance, a noncitizen who again seeks admission more than 3 or 10 years after the relevant departure or removal, is not inadmissible under INA 212(a)(9)(B) even if the noncitizen returned to the United States, with or without authorization, during the statutory 3-year or 10-year period.
Background
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.4 There are neither regulations, precedent federal court
decisions, nor published5 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 is issuing 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.7 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 reopen8 their previously denied application with USCIS using a Notice of Appeal or Motion (Form I-290B).
For more information, see the Unlawful Presence and Inadmissibility webpage.
Policy Highlights
• 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.
• 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.
• 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).
Untimely Motions to Reopen for Certain USCIS DenialsOn June 24, 2022 USCIS published new policy guidance in the USCIS Policy Manual concerning the effect of returning to the United States during the statutory three-year or 10-year period after departure or removal. Under this policy guidance, a noncitizen who again seeks admission more than three years or 10 years after the relevant departure or removal is not inadmissible under INA 212(a)(9)(B), even if the noncitizen returned to the United States, with or without authorization, during the statutory three-year or 10-year period.
Generally, under 8 CFR 103.5(a)(1)(i), a motion to reopen filed by an applicant or petitioner must be filed within 30 days of the decision that the motion seeks to reopen. However, on or before December 27, 2022, you may file an untimely motion to reopen your previously denied application with USCIS on Form I-290B, Notice of Appeal or Motion, and in accordance with the form instructions and filing fee, if:
- You returned to the United States during the statutory three-year or 10-year period;
- You filed your application with USCIS after the expiration of the statutory three-year or 10-year period; and
- We denied your application on or after April 4, 2016, solely based upon inadmissibility under INA 212(a)(9)(B) and your return to the United States during the statutory three-year or 10-year period.
Read more here.
More Information about Unlawful Presence and the BarsYou can find more information on unlawful presence in AFM Chapter 40.9.2 (PDF, 1017.74 KB). You can also find additional information about grounds of inadmissibility in the USCIS Policy Manual.
Read here.
Whether an unlawful presence ground of inadmissibility applies to you depends on the immigration benefit you are seeking.
Depending on the immigration benefit you are seeking, the law may exempt you from the ground of inadmissibility.
If you are inadmissible due to one or more of the unlawful presence grounds of inadmissibility, you generally cannot obtain a visa from the U.S. Department of State, enter the United States at a port of entry, or obtain an immigration benefit such as adjustment of status (Green Card) in the United States without first obtaining a waiver or another form of relief (such as consent to reapply for admission).
You can find information about some of the waivers or forms of relief on the following form pages:
- Form I-192, Application for Advance Permission to Enter as a Nonimmigrant
- Form I-601, Application for Waiver of Grounds of Inadmissibility
- Form I-601A, Application for Provisional Unlawful Presence Waiver
- Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal
Read new policy at USCIS website.
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