On June 24, USCIS issued a policy update on the 3-year bar and the 10-year bar in response to two recent court cases.
In this video we discuss the case of “De Gomez V. USCIS” and hear the story of Ms. Velasco, who had her I-485 adjustment of status application denied by USCIS because she was inside the United States during her 10-year bar.
We also take a look at the USCIS policy update and what it means for people with a 3-year bar and a 10-year bar. Note that this policy does not apply to those with a permanent bar or who got their visa through fraud or misrepresentation!
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On June 24th, 2022, USCIS issued a new policy on the three year bar and the ten year bar that allows immigrants to adjust their status even if they have been inside the United States during this period.
This update is made in response to a couple of recent court cases in which several immigrants brought a class action lawsuit against USCIS after having their adjustment of status applications denied due to the three or the ten year bar.
There has been a lot of confusion about this court case and the resulting USCIS policy update, so in this video I will take the time to explain the details of this case, what the US policy means and who it will specifically apply to.
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The class action lawsuit responsible for this new policy change is "De Gomez V. USCIS" and was filed on March 25th, 2022.
It included five plaintiffs who had their adjustment of status applications denied by USCIS because they were present inside the United States during the course of their three year bar and their ten year bar period.
For example, the plaintiff for whom the case is named, Miriam Velasco Gomez, is a non citizen from Mexico who lived in the United States for more than 20 years and has two U.S. citizen children and two lawful permanent resident children.
Ms. Velasco entered the United States with her B2 visa in June of 1996, however she remained for more than three years and left in March of 2000, which means that she violated her visa and overstayed.
Because she had accrued more than one year of unlawful presence, as soon as she left the United States, she triggered what is called the ten year bar to reentry.
Ms. Velasco then entered the United States on April 8, 2000—on another B2 visa—and remained in the United States ever since.
On July 19, 2018, almost 20 years later, she filed her I-485 application to adjust her status, and her U.S. citizen son filed an I-130, listing her as the beneficiary.
USCIS approved Ms. Velasco's I-130 application by her son in March of 2020.
However, on the same day when she had her interview, she was sent a request for evidence, citing that she was subject to the ten year bar and to prove that she was otherwise eligible to adjust her status in order to receive her green card.
Ms. Velasco quickly responded, asserting that she was no longer subject to the unlawful presence bar because ten years had already elapsed.
However, USCIS asserted that she had to be denied her application because she served out her ten year bar inside the U.S. instead of outside.
In her appeal, Ms. Velasco argued that more than two decades had passed since her last departure after triggering her ten year bar, and this was still dismissed by USCIS.
The important thing to note is that the Immigration and Nationality Act does not actually say specifically that this bar can only be served as time outside the US.
After this lawsuit was filed, the court disagreed with the decision of USCIS, essentially concluding that a non-citizen may reside inside the U.S. while waiting out the three year or the ten year bar and forced USCIS to change the way they are applying the law and formally update their policy.
So what does the new USCIS policy say and who does it apply to?
According to the policy update issued on July 24th, a non-citizen who again seeks admission more than three or ten years after the relevant departure or removal date is not inadmissible, even if the non-citizen returned to the United States with or without authorization during the statutory three year or ten year period.
Three year and ten year periods run from the date of departure or removal, whichever applies without interruption.
And a non-citizens location during the statutory three year or ten year period and the non-citizens manner of return to the U.S. during this period are irrelevant for purposes of determining inadmissibility.
So this applies to anyone who has triggered the three or the ten year bar, reentered the U.S. during the three or ten year window and then applies to adjust status after this period passes.
USCIS can no longer cite your physical presence inside the United States during your three year or ten year bar as a reason for denying your adjustment of status application.
This does not apply to persons who have the permanent bar or who secured their visa through fraud or misrepresentation.
The new policy went into effect on June 24 and will be applied prospectively.
In addition, some non-citizens may be able to file a motion to reopen their previously denied application with USCIS using the appeal form.
I will include links to the case and policy update in the description below.
Also, be sure to watch my latest video on the State Department's recent answers to some of the biggest visa questions, including the NVC and Visa interview schedules. I'll include a link to that video here.
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