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USCIS to Ameliorate Situation For Some Impacted By The 3 and 10 Year Bars.

by Jonathan D. Montag

In the jargon-rich world of immigration law, an important new phrase came out of amendments to the immigration law in 1996, the 3 and 10 year bars. What these bars say is that if a person accrues more than180 days of unlawful presence in the United States and departs he or she cannot return to the United States for 3 years. If the person accrues a year or more of unlawful presence, this person cannot return for 10 years. A waiver was available. When these bars first came into being, on April 1, 1997, and found at  INA § 212(a)(9)(B), because of the cryptic way they were written, it took years to figure out what they meant.

The Department of State and the former INS as well as the present USCIS issued many cables and memoranda trying to explain how they understood the statute. In fact in 2009, twelve years after the bars came into effect, USCIS felt the need to issue a clarifying and consolidating memo. The Board of Immigration Appeals issued a decision as late as April 2006, Matter of Rodarte Roman, nine years after the law came into effect, because of confusion about the basic meaning of the law.  The Matter of Rodarte Roman decision may even have been superseded by subsequent legal interpretations.  I suspect some difficulty in understanding the bars is because the law is counter-intuitive – a person is punished by a lengthy bar to entry to the United States only if the person departs from the United States, which one would suspect was a policy goal of Congress. The 3 and 10 year bars create a perverse disincentive to departing the United States so befuddling that even as of last week, a Court of Appeals missed this point in a decision, Contreras v. Attorney General.  Parenthetically, the error is somewhat comical because the decision is about lambasting an attorney for misunderstanding the law and also evidences other misapprehensions about immigration law, such as the effect of another statute, 245(i) and gets the name of the adjudicative body at the center of the case wrong (though criticizing the court for what amounts to a clerical error is admittedly a cheap shot).

So why would someone leave the United States if departing would activate bars to returning – if the person wanted to come back? (An unconsidered story in the face of American hubris about the magnetic attraction of the people of the world to the United States  is the number of lawful residents of the United States and U.S. citizens who abandon the United States each year). People depart for two interconnected reasons. First, if a person entered the United States without admission or parole, the person cannot adjust (change) their status to permanent residence in the United States, except for some limited exceptions. Thus, the only alternative is to leave and apply for a visa at a U.S. Consulate abroad. Connected to this it the fact that a waiver is available for the 3 and 10 year bars. If a person can show extreme hardship to a parent or spouse who is a U.S. citizen or lawful permanent resident, a waiver can be issued allowing the visa applicant to return to the United States. It is important to note that without the hardship to these qualifying relatives, no waiver is available, as this unfortunate military family learned.

One may wonder, what’s the problem – if you cannot adjust status, you go abroad, apply for a visa, apply for a waiver and come back? There are two problems. First, not everyone gets a waiver. If USCIS, the adjudicating body for the waiver, denies the waiver, the relative cannot come back for 3 or 10 years. Second, it can take a year to get the waiver. Consider this scenario – you are a United States citizen who marries his high school sweetheart. Your sweetheart learns that she was brought to the United States as a baby without inspection. Because she cannot adjust status in the United States, you arrange for a trip abroad to get a visa and a waiver. You apply for the waiver and are told a decision cannot come for a year. Your wife is stuck abroad for a year. Then her waiver is denied and she cannot come back at all for ten years. Such is your reward for trying to legalize her status. These interconnected issue are discussed in my first movie.

USCIS has been aware of the problem of delays in adjudication – making someone wait a year for the decision to come back to the United States – and has implemented plans to expedite adjudication, as discussed in this DHS Ombudsman report.

Regrettably, without any announcement, this expedited adjudication program seems to have been abandoned last fall and inquiries to USCIS about processing of waivers results in a curt response which says in essence, “Do not bother us for ten months.” The abandonment of the expedited processing last fall came with the expectation that a big change was in the air. USCIS scheduled a teleconference where it was making an announcement, but then cancelled the teleconference.

Last week the announcement finally came.  The change is highly beneficial to some, but is limited in its scope. Further, it does not take an additional step which logically would flow from the steps it does take.

The announcement is sketchy in its details. The procedures have not been announced yet – they are subject to notice and comment – but the new system will allow certain aliens to apply for their waiver and receive a decision on the waiver before they depart from the United States. In the case of the couple described above, before the high school sweetheart wife leaves for a Consulate to get a visa, she will know she is coming back and not have to wait a year in cruel suspense waiting for a decision. This is hugely beneficial to the wife in this scenario, the spouse of a United States citizen. The new policy is less generous to others impacted by the 3 and 10 year bars who are eligible for a waiver. As USCIS states in the announcement:

 USCIS intends to limit this process change to aliens who are immediate relatives of U.S. citizens … who must depart from the United States to obtain immigrant visas, and whose U.S. citizen spouse or parent would suffer extreme hardship if the applicant were denied admission to the United States. The term “immediate relative” means the spouse, parent or child (unmarried and under 21 years old) of a U.S. citizen, except that, in the case of a parent, the U.S. citizen son or daughter petitioning for an immigrant visa must be at least 21 years old. Certain self-petitioners (i.e., widows/widowers of U.S. citizen and their minor unmarried children) may also be considered immediate relatives….

The policy will not apply, for example, to a permanent resident applying for his spouse or a United States citizen applying for his adult son or daughter, as these are not immediate relatives, no matter how much the spouse or parent will suffer. Further, it will not apply to a mother who is petitioned by her adult United States citizen son if the mother’s mother (the son’s grandmother) is a permanent resident and will suffer extreme hardship without her daughter, the son’s mother, because the program will only apply where the qualifying relative for the hardship waiver is a United States citizen.

What is unique about this is that I recall nowhere else in the immigration laws does a hardship determination or waiver eligibility discriminate between whether the qualifying relative is a citizen or a permanent resident. The waivers at INA § 212(h) (waiving certain criminal grounds of inadmissibility) and INA § 212(i) (waiving certain fraud grounds of inadmissibility) are based on hardship to citizen or permanent resident relatives. The waiver at  INA § 237(a)(1)(H) for curing a wrongly issued visa is based on having certain relatives, citizen or permanent resident. Cancellation of Removal for Certain Nonpermanent Residents, INA § 240A(b), is based on hardship to certain relatives who are citizens or permanent residents. Battered spouses are afforded protection regardless of whether the batterer is a citizen or permanent resident. While it may not be irrational to discriminate against permanent residents in this way, it is certainly unique.

Now, going back to the basic scenario of the high school sweetheart, suppose she applies for a waiver and receives it. This means she can go to a U.S. Consulate and get a visa. If it is virtually a foregone conclusion that she will get her visa because the waiver has been granted in advance of her departing and triggering the bar that necessitates the waiver, why make her shlep to a U.S. Consulate to get the visa? If she is receiving as waiver that forgives her unlawful presence, why not also forgive the unlawful entry that caused the unlawful presence in the first place? USCIS could do this by allowing the high school sweetheart to pick up her visa at a Port of Entry or, even more sensibly, just parole her in place, a slight of hand authorized at INA § 212(d)(5) that authorizes USCIS to convert one who entered without inspection to a parolee, who then can adjust status.

For those who may feel that allowing these people to adjust status will remove the punishment aspect of compelling a trip abroad, this concern can be addressed by charging a parole fee. Then, instead of an airline and a hotel abroad receiving the windfall, our government will. This will seem familiar to the old law that punished illegal entrants by making them pay a $1000 penalty to adjust status, the 245(i) law. This law, one may recall, was supported by the former INS because it raised them buckets of money and supported by the Department of State because it reduced the burdens on the consulates abroad as aliens did not leave the U.S. to apply for visas abroad and instead applied from their homes in the United States. Fee or no fee, if a waiver is granted, it is dumb to make an alien depart and fly around the world just to pick up a visa that USCIS grants routinely inside the United States anyway.

One final question that must be answered? What will happen if the waiver is denied? Will the person then be set up for removal or will he or she be left alone? If the application for a waiver becomes a law enforcement tool, aliens will again be faced with a hard decision as to whether to apply for a waiver and risk being deported or just staying in the shadows.

About The Author

Jonathan D. Montag is a State Bar of California certified Immigration and Nationality Law Specialist. He is a former chairman of the State of California Immigration and Nationality Law Advisory Commission of the Board of Legal Specialization. He was an AILA San Diego Chapter Chair. Mr. Montag has successfully argued cases before the District Court for the Southern District of California and the Ninth Circuit Court of Appeals and testified as an expert in the District Court for the Southern District of California and the California State Bar Court. Mr. Montag was named a 2005 Attorney of the Year by California Lawyer Magazine and has been named to the San Diego Super Lawyers list for immigration in 2007-2011.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.