As immigration attorneys, part of our responsibility toward clients is paying attention to court cases that may affect their residency. Two such cases were decided earlier this year in such a way that led to big policy changes at the USCIS. The changes relate to the 3- and 10-year inadmissibility bans previously applied to foreign nationals seeking permanent re-entry.
In short, the established 3- and 10-year inadmissibility periods that apply to foreign nationals living unlawfully in the U.S. begin as soon as an affected person either departs or is deported, and is dependent on the length of the unauthorized stay, whether more than 6 months or more than 12 months. Both periods run uninterrupted until they expire, regardless of where the person in question resides during that time.
Separate from U.S. Residency
One of the two cases that led to the policy change involved a Japanese woman who had overstayed her immigration status for over 12 months prior to being deported. Because her unauthorized stay was more than 12 months, her deportation meant a 10-year ban on re-entry to the United States. She left the country but subsequently returned after marrying an American citizen, which required a waiver of the 10-year ban.
Some 18 years later, she applied for permanent residency status but was denied based on an interpretation of immigration law that disqualified her 18 years of marriage, thereby indicating she could not apply for admission until her 10-year ban expired.
The woman and her immigration attorneys filed a lawsuit which was eventually heard by a federal court in California. The court ruled that federal immigration law does not provide for interruption of either the 3- or 10-year admissibility bans based on subject residency. In other words, the plaintiff’s 10-year ban continued uninterrupted even though she resided in the United States.
A Change in Policy, Not Law
In response to the two cases, the USCIS issued a new policy over the summer, a policy that essentially recognizes the federal court’s ruling and the department’s willingness to abide by it. However, federal law does not directly address the issue one way or the other. Furthermore, the court’s decision is not binding.
The court did not make the law here. It also did not interpret existing law. Unfortunately, the federal laws that would apply in both cases are so vague as to not answer the central question. So the court decisions apply only to their respective cases.
As long as USCIS maintains the recently changed policy issued over the summer, their administrative decisions will be based on the concept that 3- and 10-year bans on readmission run interrupted from the moment they are put in place. However, this is not to say that the department cannot reverse the policy in the absence of any further court rulings.
You Need Experienced Immigration Attorneys
If nothing else, the court cases and subsequent policy change illustrate why experienced immigration attorneys are so important. In both cases, it was the hard work of the immigration attorneys that resulted in favorable rulings for the plaintiffs. In the aftermath, the same attorneys will be keeping an eye on things.
We will be keeping watch as well. Our role as immigration attorneys requires that we pay attention to government policies, court cases, and anything else that might affect our clients. We make it our business to know the law so that we can offer our clients the best possible representation.
If you have any questions about how the recent policy change may affect the status of your case, do not hesitate to reach out to our law offices. A member of our experienced immigration law team will answer your questions and help you understand how, if at all, the policy change affects you. Know that we are here for you.
Please contact us at info@grahamadair.com; (408) 715-7067.