Page 38 - The Indian EYE 080522

IMMIGRATION AUGUST 05, 2022 | The Indian Eye 38

A Practical Guide to Spending

the 3 and 10 Year Bars in the US

By Cyrus D. Mehta and Kaitlyn Box* are “irrelevant” for purposes of reenter would be inadmissible and (i)(II). However, she can request the US Consul can simply refuse
n June 24, 2022, USCIS determining inadmissibility under could trigger additional bars. the US consul to recommend the the visa on the grounds that the
INA § 212(a)(9)(B)”, the alert
applicant is presumed to be an
nonimmigrant visa waiver under
The guidance laid out in the
issued a Policy Alert on
Oinadmissibility under § stated. USCIS stated that noncit- new policy guidance applies most §212(d)(3). If the waiver is grant- intending immigrant under INA
izens whose applications were de-
ed by the Admissibility Review
§214(b). H-1B and L visas are ex-
readily to a noncitizen who has
212(a)(9)(B) of the Immigration nied because they had entered, or been unlawfully present in the U.S. Office within Customs and Border empted from this presumption in
and Nationality Act (INA) This remained in, the U.S. during the departs and reenters on a nonim- Protection, she can be admitted in §214(b). Even though an O visa is
provision states that a noncitizen period of inadmissibility may be migrant visa along with a nonim- H-1B status and be able to spend recognized as a “dual intent” visa
was unlawfully present in the Unit- able to file Form I-290B, Notice of migrant waiver under INA §212(d) at least six years in H-1B status. under 8 CFR §214.2(o)(13), the
ed States for a period of more than Appeal or Motion to request that (3). Individuals who are subject to The standard for obtaining a recipient while being exempted
180 days but less than 1 year will be their applications be reopened. the 3- and 10-year bars could seek §212(d)(3) nonimmigrant waiver from requiring a residence abroad
inadmissible to the United States Whether noncitizens can to be admitted in a nonimmigrant is quite broad. It does not require must still return home at the end
for 3 years after departure or re- spend the 3-and 10-year bars in status such as H-1B or O-1 with a a showing of extreme hardship to of the O-1 validity period. There-
moval, while an individual who has the United States has long been §212(d)(3) nonimmigrant waiver a qualifying relative as one has to fore, even an O-1 visa applicant
accrued more than one year of un- a source of uncertainty. In a 2008 and spend the bars in the US. Af- demonstrate to apply for the corre- would be susceptible to a refusal
lawful presence will be barred for blog, we discussed this issue in ter spending the 3- or 10- year bar sponding immigrant waiver under under INA §214(b) when seeking
10 years. The Policy alert, which is the context of a July 14, 2006 let- in the US, this individual would §212(a)(9)(v). In Matter of Hran- a 212(d)(3) nonimmigrant waiver.
included in Volume 8 of the US- ter from Robert Divine, former no longer be inadmissible and be ka, 16 I&N Dec. 491, 492 (BIA An individual who is subject
CIS Policy Manual, clarified that a Chief Counsel of the USCIS, to eligible to adjust status to perma- 1978), the Board of Immigration to the 10-year bar and already in
noncitizen who seeks admission af- attorneys David P. Berry and Ron- nent residence. Of course, those Appeals (BIA) explained the fac- the United States in H-1B status
ter the 3- or 10- year bar has expired ald Y. Wada. See AILA Doc. No. who have a qualifying relative can tors used to adjudicate a § 212(d) can potentially wait the period out
“is not inadmissible under INA § 08082930. In the letter, Mr. Divine obtain an immigrant waiver under (3) waiver: by getting one-year H-1B exten-
212(a)(9)(B) even if the noncitizen confirmed that the 3-year inad- 212(a)(9)(5) by demonstrating ex- [T]here are essentially three sions beyond the sixth year under
returned to the United States, with missibility period continues to run treme hardship to that relative and factors which we weigh together. §106(a) of the American Compet-
or without authorization, during even if the noncitizen subsequently would not need to spend all the 3 The first is the risk of harm to so- itiveness in the 21st Century Act
the statutory 3-year or 10-year returned to the US on parole un- or 10 years before they can adjust ciety if the applicant is admitted. (AC 21). If this individual is born
period.” Further, “a noncitizen’s der INA §212(d)(5). The letter in- status to permanent residence. The second is the seriousness of in India, she can become eligible
location during the statutory 3- or cluded the caveat that a noncitizen The new policy guidance truly the applicant’s prior immigration for 3 year H-1B extensions under
10-year period and the noncitizen’s who is unlawfully present in the comes to the rescue of those who law, or criminal law, violations, if §104(c) of AC 21. As cautioned
manner of return to the United U.S., leaves, and later attempts to do not have qualifying relatives as any. The third factor is the nature in our previous blog, though, one
States during the statutory period they can spend the 3- or 10- of the applicant’s reasons for wish- year extensions under AC 21 can
year bars in the US and no ing to enter the United States. potentially be denied under 8 CFR
longer be inadmissible under Matter of Hranka, 16 I&N § 214.2(h)(13)(iii)(D)(10) if the
INA § 212(a)(9)(B). Dec. at 492. individual has not filed his adjust-
Take the example of a The BIA also clarified that ment of status application within
person who came to the US “there is no requirement that the one year of the priority date be-
in B-2 status on January 1, applicant’s reasons for wishing to coming current, unless good cause
2020 and has remained in enter the United States be ‘com- is shown. USCIS has the discretion
the US unlawfully long after pelling.’” Id. to excuse a failure to file an I-485 if
the authorized stay ended on Notwithstanding the broad the noncitizen establishes that the
June 30, 2020. If this individ- standard set forth in Matter of failure to apply was due to circum-
ual was offered a job in early Hranka, the waiver is still discre- stances beyond his or her control.
2022, got selected in the H-1B tionary and can be easily refused It is unclear whether USCIS might
lottery and became the bene- by the Admissibility Review Office accept a good cause argument
ficiary of an H-1B visa peti- or not even be recommended by from an individual who wished to
tion with a start date of Oc- the US Consul. Individuals who continue applying for H-1B exten-
tober 1, 2022, she would not have spent long periods unlawfully sions in order to spend the 10-year
be eligible to change status to in the US and who leave, and then bar in the United States.
H-1B on October 1, 2022 as immediately request the waiver (This blog is for informational
she has been out of status. If through the US Consulate can be purposes and should not be viewed
she left the US to apply for an denied in the exercise of discretion. as a substitute for legal advice).
H-1B visa at a US Consulate, Moreover, the chances are better
she would become subject to when one is applying for an H-1B *Kaitlyn Box graduated with
the 10-year bar and be denied or L visa that clearly allows “dual a JD from Penn State Law in 2020,
the visa due to inadmissibili- intent” as opposed to applying for and is an Associate at Cyrus D.
ty under INA §212(a)(9)(B) an F-1 visa. In the latter instance, Mehta & Partners PLLC.
m of ___________________________________________________________________________________________________
CYRUS D. MEHTA & PARTNERS PLLC Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D.
Mehta & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s
EB-5 Committee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental

Disciplinary Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigra-
tion; board member of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta

  is the former chair of the Board of Trustees of the American Immigration Council and former chair of the Committee on
   
­ Immigration and Nationality Law of the New York City Bar Association. He is a frequent speaker and writer on various
€
‚  
immigration-related issues, including on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he
teaches a course entitled Immigration and Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award
for advancing the practice of immigration law and the AILA 2011 Michael Maggio Memorial Award for his outstanding
efforts in providing pro bono representation in the immigration field. He has also received two AILA Presidential Com-
mendations in 2010 and 2016. Mr. Mehta is ranked among the most highly regarded lawyers in North America by Who’s
2 6th Floor Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and Chambers Global 2019 in

   
immigration law, among other rankings.

www.TheIndianEYE.com