The immigrant communities of the United States have been stirring ever since Congress created the dreaded “3 and 10 year bar” to reentry in 1996. The INS still has not promulgated regulations regarding the law, which has added to everyone’s confusion and caused public speculation as to what the law really means. With so many variant interpretations being advanced, it seems people have neglected to actually read the statute itself and its built-in exceptions to the “3 and ten year bar.” INS recently issued a policy memorandum regarding the asylum exception, which may offer relief for many individuals who are not eligible for “adjustment of status” in the United States.
The “3 and 10 year bar” to reentry was created in 1996 as part if the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRAIRA”). The law states that an alien who accrues more than six months, but less than one year of “unlawful presence” in the United States, will be barred from readmission to the United States for a period of three years, and any alien having accrued more than one year of such “unlawful presence” will be barred from readmission for ten years.
“Unlawful presence” is time spent in the United States following entry without inspection or after the expiration of an alien’s I-94. The law only bars “readmission,” however, such that it does not apply to individuals who never depart the United States. Many people who are or will be eligible for adjustment of status under INA section 245(a) or (i), may apply for adjustment of status in the United States and will not be affected by the bar. Those who are not eligible for adjustment, e.g. people seeking permanent resident status through other than immediate relative petitions and who are not “grandfathered” under 245(i),” must avoid the accrual of unlawful presence, since they must depart the United States and obtain an immigrant visa if they ever are to become lawful permanent residents.
As set forth in the statute, an individual does not accrue “unlawful presence” during period in which an alien has a “bona fide application for asylum pending.” The INS’ policy memorandum mentioned previously states that in upcoming regulations, the INS will define bona fide as “having any arguable basis in law or fact.” The asylum claim is deemed pending during any periods of administrative or judicial review. Thus, no period of unlawful presence accrues until a final denial of the asylum claim is issued.
INS is expected to issue regulations on the other exceptions, which include time spent as a minor (under age 18); time spent while a bona fide application for extension or change of status is pending; time spent while in family unity status; and time spent as a battered spouse or child. Additionally, we will update the public on the regulations the INS is expected to issue on the waiver provisions of the three and then year bar soon.