Under the Immigration and Nationality Act (INA), immigrants who were unlawfully present in the United States and subsequently depart face reentry bars depending on the length of their unlawful stay. A recent court case handled by the American Immigration Law firm of Los Angeles resulted in a key policy update affecting this matter.
Since 1996, Congress established grounds of inadmissibility for noncitizens who accrue unlawful presence. Generally, a noncitizen who accrues over 180 days of unlawful presence, leaves or is removed from the U.S., and seeks admission within three or ten years is considered inadmissible. Previously, such individuals were expected to remain outside the U.S. until the bar period expired.
Prior to 2022, the INA did not clarify whether returning to the U.S. during the three-year or ten-year period would affect the statutory clock, and there were no regulations or published court decisions on the issue. USCIS has now updated its policy to clarify that once the period of unlawful presence begins, the three-year or ten-year period runs continuously, regardless of whether the individual returns to the U.S. during that time.
The policy, updated on June 24, 2022, reflects two recent court decisions and an unpublished Board of Appeals decision from the Department of Justice. Under the new guidance:
One notable case involved a Japanese woman represented by attorney Michael Piston. She had overstayed her visa by over a year, left the U.S., and reentered 18 years prior to the case decision via a visa waiver. She had been living with her U.S. citizen spouse for more than a decade. USCIS initially applied the ten-year bar, claiming she must remain outside the U.S. for ten years. Attorney Piston successfully argued that, under INA Section 212(a)(9)(B), the ten-year period expired after ten years, regardless of her physical presence in the U.S. The U.S. District Court, led by Judge Consuelo Marshall, ruled in favor of the client, allowing her to pursue permanent residency.
Attorney Piston has handled numerous immigration litigation cases, winning over 30,000 matters throughout his career. He is known for pioneering strategies, including obtaining federal court orders directing USCIS to grant employment authorization while cases are under review, such as in Stellar IT Sols., Inc. v. USCIS, Civil Action No. 18-2015.
If you have received an arbitrary or erroneous USCIS denial, federal court litigation may be an effective solution. At the American Immigration Law Firm LLP of Los Angeles, P.C., our experienced federal lawsuit attorneys employ creative strategies to protect your rights and resolve government errors.
Schedule a consultation today by calling 323-805-0445 or contacting us online to discuss your case.
Florida International University College of Law, Miami, Florida
Bowling Greend State University, Bowling Green, Ohio
Juliette Potter is a highly accomplished United States Immigration Attorney with over two decades of legal experience. She began her legal journey as a Barrister in the United Kingdom and was later admitted as an Attorney-at-Law in Antigua and Barbuda before the Eastern Caribbean Supreme Court.
Ms. Potter’s academic background is equally distinguished. She holds a Master of Laws (LL.M.) from Florida International University College of Law, a Bachelor of Laws (Honors) from the University of Wolverhampton, and a Legal Education Certificate from the Norman Manley Law School in Jamaica. She also earned a Master’s degree in Organization Development from Bowling Green State University’s College of Business in Ohio.
Her professional experience spans both the corporate and legal worlds. Before entering private immigration practice, she served as Chief Legal Officer for an international group of companies. Today, she is a Licensed Attorney in the State of New York, representing clients before the Federal Immigration Courts of the United States, while also maintaining her active law license in Antigua and Barbuda.
As an immigrant herself, Ms. Potter brings a unique perspective and deep empathy to her practice. Her personal experiences inspire her unwavering commitment to helping clients navigate the complexities of U.S. immigration law with confidence and care.
Outside the courtroom, Ms. Potter enjoys cooking, traveling, and exploring new cuisines — passions that reflect her appreciation for diversity and global cultures, both in life and in law.