However, the question this raises is how can a person who has left the U.S. reenter to serve the bar that applies to them? Let’s say Mary entered the U.S. without permission in 2010. In 2012, Mary returned to her country to care for her very ill mother. In 2013, Mary returned to the U.S. without permission and has remained here ever since. By 2023, Mary has discharged the 10-year bar that applied to her upon leaving the U.S. in 2012. However, not only has Mary accrued additional unlawful presence upon her return to the U.S., she also triggered the permanent bar when she reentered the U.S. without permission after previously accruing one year of unlawful presence. The only way to overcome the permanent bar is to apply for and receive approval of a waiver, and in most cases, to remain outside of the U.S. for 10 years. This time bar cannot be spent in the U.S. In this scenario, the new policy clarification does not help Mary.

Where the policy can be beneficial is for a person who wants to reenter the U.S. in a employment-based nonimmigrant status such as an H-1B or L-1 visa holder. In this situation they would apply for a nonimmigrant waiver together with the nonimmigrant visa request, and if approved, could enter the U.S. lawfully. The benefit to this is the person has not triggered the permanent bar. There is a higher chance of success in requesting a nonimmigrant waiver for an employment-based visa then for example, a tourist visa, because a consular officer is likely to deny the tourist visa due to the previous immigration violations of the requestor. Using the previous example, if Mary was permitted to enter the U.S. after approval of a waiver with an H-1B visa, the time she spends in the U.S. will count towards discharging the 10-year bar. Additionally, if after discharging the bar she has a basis to become a permanent resident, such as marriage to a U.S. citizen, she will be eligible to do so.

These examples only take into consideration the unlawful presence bars and do not discuss any other circumstances that could make a person inadmissible, which would create additional hurdles and possible inability to becoming a lawful permanent resident. This area of immigration law is very detailed, and an experienced immigration attorney should be consulted to help you navigate the process.