USCIS Hit with Class Action Over Alleged Misinterpretation of ‘Unlawful Presence Bar’ in Immigration Law

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A proposed class action alleges the federal government has unlawfully and restrictively misinterpreted a component of immigration law that five plaintiffs say has wrongfully denied hundreds of noncitizens the opportunity to apply to adjust their status and become lawful permanent U.S. residents. 

The 22-page suit relays that the “unlawful presence bar” within the federal Immigration and Nationality Act stipulates that a noncitizen who departs or is removed from the United States following a period of unlawful presence is rendered inadmissible for three or 10 years and cannot apply to adjust their status absent a waiver. 

The lawsuit alleges, however, that United States Citizenship and Immigration Services (USCIS) and the U.S. Department of Homeland Security have wrongfully wielded the “unlawful presence bar” such that a noncitizen can only satisfy the three- or 10-year inadmissibility period if they spend the entire time outside of the U.S. or otherwise continuously maintain lawful status inside the country during that period. According to the case, USCIS’s “restrictive interpretation” of the Immigration and Nationality Act “defies the statute’s plain language.” 

“Nowhere does the statute require that a noncitizen must wait three or ten years outside of the country, or else continuously maintain lawful status while inside the United States for that period of time,” the complaint argues. “While other, related inadmissibility provisions do require that an individual wait outside the United States or else maintain continuous lawful consent, the statutory provision at issue in this case pointedly does not do so.” 

The case states that USCIS had previously interpreted the statute to recognize that the passage of time alone, whether inside or outside of the United States, satisfies the inadmissibility period for noncitizens. Nevertheless, the agency now asserts that the time any person subject to the unlawful presence bar spends inside the country after their lawful status has expired will not count toward the three- or 10-year inadmissibility window, the lawsuit says. 

Statutorily, there exists no language that supports USCIS’s restrictive interpretation of the law, and the Board of Immigration Appeals, to that extent, has recognized this limitation in concluding that a noncitizen may reside inside the U.S. while waiting out the three- or 10-year penalty, the complaint relays.  

The suit contends that USCIS’s “arbitrary and capricious” determination that the five plaintiffs are inadmissible to the country violates the plain language of the Immigration and Nationality Act.

The lawsuit looks to cover all individuals who have submitted or will submit to USCIS an application for adjustment of status; have been found or will be found by the agency to be inadmissible pursuant to its policy requiring them to maintain a lawful presence in the U.S. or remain outside the country for three or 10 years, even though the applicable time period has passed since their last departure; and are otherwise eligible for status adjustment. 

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