Posted on July 6, 2022

DHS Erases Barrier to Legal Status for Some Illegal Immigrants

Stephen Dinan, Washington Times, July 5, 2022

Making it back into the U.S. after being ousted is “irrelevant” to an illegal immigrant’s eligibility to apply for a new legal status, the Homeland Security Department’s citizenship agency says in a new policy.

In the past, U.S. Citizenship and Immigration Services would have denied the application under a law that required onetime illegal immigrants to wait outside the country for up to 10 years before they would be eligible to apply to come back legally.

Experts said the policy now says the law doesn’t require a wait elsewhere as long as the immigrant doesn’t pop up on Homeland Security’s radar during the waiting period.

“This is like the ‘don’t ask, don’t tell.’ We won’t ask you where you’ve been during your inadmissible period, and you don’t tell us. It’s sheer craziness,” said Emilio Gonzalez, who ran USCIS during the George W. Bush administration.

At issue is the three-year/10-year bar to admissibility, which is supposed to deter immigrants from trying to live in the country illegally.

Under the three-year/10-year bar, someone who was in the U.S. without legal status for at least six months but less than a year must depart and wait three years before applying to come back legally. Someone in the U.S. without authorization for more than a year must leave and wait 10 years before applying and being deemed admissible.

USCIS previously assumed migrants were supposed to wait outside the U.S. during the bar, Mr. Gonzalez said. Those who returned before their time was up would be denied.

The new policy says that’s no longer the case.

The policy, dated June 24, says the “noncitizen’s location during the statutory 3-year or 10-year period and the noncitizen’s manner of return to the United States during the statutory 3-year or 10-year period are irrelevant for purposes of determining inadmissibility.”

The policy appears to apply retroactively. Would-be migrants who were denied based on location at the time of application can file motions to reopen their cases.

A footnote says the “manner by which the noncitizen returns … may result in the accrual of a new period of unlawful presence.”

In a statement to The Washington Times, USCIS said someone who left and then sneaked back into the U.S. illegally could still be blocked by other sections of the law.


That didn’t mollify analysts, who said the overall thrust of the memo is to pursue leniency.

“This is basically an invitation for any deported alien to pay the cartels to smuggle them back into the U.S. while they let the clock run out,” said Rob Law, who headed the USCIS policy office in the Trump administration and is now director of the America First Policy Institute’s Center for Homeland Security and Immigration.