INS Advises on Three- & Ten-Year Bars, Departure

March 23, 1998

HQ 70/21.1.16

Elliott C. Lichtman, Esq
Lichtman, Trister, Singer & Ross
1666 Connecticut Avenue, NW, Suite 500
Washington, DC 20009

Dear Mr. Lichtman:

This is in response to your letter addressed to Paul W. Virtue, formerly Acting Executive Associate Commissioner for Programs, currently General Counsel, dated October 28, 1997, concerning the applicability of section 212(a)(9)(B) of the Immigration and Nationality Act. In your letter, you ask whether an individual under an outstanding order of removal would be subject to the three- or ten-year bars to admission under section 212(a)(9)(B)(i)(I) and (II) of the Act.

The statutory language in section 212(a)(9)(B)(i) of the Act contains specific elements that must be met in order for the three and ten year bars to apply. The alien must have been unlawfully present in the United States for more than 180 days but less than one year for the three-year bar to apply, or for more than one year for the 10-year bar to apply. These three and ten-year bars are triggered by the alien's departure from the United States and apply when the alien seeks readmission to the United States.

We note that the language in section 212(a)(9)(B)(i)(I) of the Act relating to the three-year bar contains additional requirements not found in section 212(a)(9)(B)(i)(II) of the Act relating to the ten-year bar. Specifically, section 212(a)(9)(B)(i)(I) of the Act states that the alien must have departed voluntarily before proceedings were initiated under section 235(b)(1) or 240 of the Act, which took effect on April 1, 1997. A formal order of voluntary departure is not necessary.

According to the statutory language in section 212(a)(9)(B)(i) of the Act, aliens who departed voluntarily after proceedings under section 235(b)(1) or 240 of the Act were initiated, but before accruing 1 year of unlawful presence, are not subject to the three-year bar. The ten-year bar under section 212(a)(9)(B)(i)(II) of the Act applies regardless of whether the alien departed the United States voluntarily or under an order of removal, and regardless of whether the alien departed the United States before or after removal proceedings were initiated.

While aliens who depart the United States voluntarily while under an order of removal, but prior to accruing one year of unlawful presence, are not subject to the three-year bar under section 212(a)(9)(B)(i)(I) of the Act, they are inadmissible under section 212(a)(9)(A) of the Act, unless they obtain consent to reapply for admission pursuant to section 212(a)(9)(A)(iii) of the Act.

I hope this information proves helpful to you.

Pearl B. Chang
Branch Chief
Residence and Status Services Branch