USCIS to Adjust Its Interpretation of Three and 10-Year Bars of Inadmissibility

By: Angelita Chavez

As a result of a lawsuit, the United States Citizenship and Immigration Services (USCIS) intends to no longer force certain adjustment of status applicants to leave the United States during their period of inadmissibility. Additionally, USCIS will not reject adjustment of status applications if an applicant was in the United States during the period of inadmissibility without a waiver. The new policy interpretation is still being finalized by the Department of Homeland Security and new USCIS guidance is expected soon.

Previously rejected applicants who meet the class action lawsuit’s case requirements can have their cases reopened and reevaluated under the new policy interpretation.

background

On March 25, 2022, the Northwest Immigrant Rights Project (NWIRP) filed a class action lawsuit in the Western District of Washington challenging USCIS’s current interpretation of the three-year and 10-year unlawful presence bars under INA 212(a)(9)(B)(i). The lawsuit asserts that USCIS’s policy interpretation is incorrect as it relates to certain individuals that subsequently entered the United States on valid visas during their period of inadmissibility. Applicants under this interpretation had to either:

• Wait outside the US during the entire period of inadmissibility, or
• Maintain lawful status throughout the entire period in question.

class action requirements

To be considered for the class action lawsuit, an individual must have filed an adjustment of status and reentered the United States during the three-year or 10-year period of inadmissibility, and also meet one of the following conditions:

• Denied for adjustment of status due to entering the country during the period of inadmissibility, or
• Directed to file Form I-601, Application for Waiver of Grounds of Inadmissibility.

The new policy interpretation does not apply to separate grounds of inadmissibility, including the permanent bar.

conclusion

The Chugh, LLP immigration team will continue to monitor this policy and provide updates as they become available. If you believe you qualify under the policy update or for help filing an adjustment of status, please contact your Chugh, LLP immigration professional.