Two children were brought to the United States without inspection while they were minors. After more than a decade in the country, they received DACA and later became eligible to apply for permanent residence through a U.S. citizen relative.
During their green card interviews, USCIS concluded that they were subject to the ten-year unlawful-presence bar under INA §212(a)(9)(B). The response challenged the calculation and demonstrated that the period USCIS relied upon occurred while the applicants were under eighteen and therefore did not count toward unlawful presence under the statute.
USCIS reversed the inadmissibility determination and approved both green card applications without requiring the applicants to leave the United States or file an unlawful-presence waiver.
This is an anonymized report of an actual Messersmith Law Firm matter. Names, nationality, family relationship, dates, office location, and nonmaterial identifying details have been omitted. Past results do not guarantee a similar outcome.
The applicants were brought into the United States by their mother when they were minors. They did not make the decision to enter, control the travel arrangements, or possess adult legal capacity at the time.
They remained in the United States for more than a decade and later obtained DACA before pursuing permanent residence through a U.S. citizen relative.
At the adjustment interviews, USCIS concluded that the applicants were inadmissible under INA §212(a)(9)(B) based on the time they had spent in the United States without lawful status.
If left uncorrected, the finding would have prevented approval and could have exposed the family to unnecessary departure, separation, and waiver questions.
Physical presence without status is not always countable unlawful presence. Congress created specific exceptions, including an express rule excluding time before a person turns eighteen.
The mother brought both children into the United States without inspection while they were young.
The children lived in the country for more than ten years.
Both applicants later obtained Deferred Action for Childhood Arrivals.
They became eligible to seek permanent residence through sponsorship by a U.S. citizen relative.
During the adjustment interviews, USCIS concluded that the applicants were subject to the ten-year bar.
The response demonstrated that the time relied upon by USCIS occurred while the applicants were minors and could not be counted under the statute.
After several months of advocacy, USCIS agreed that the applicants were not inadmissible under INA §212(a)(9)(B).
The two applicants became lawful permanent residents without unnecessary departure or family separation.
A person who accrues more than 180 days but less than one year of unlawful presence and then departs may face a three-year bar.
A person who accrues one year or more of unlawful presence and then departs may face a ten-year bar.
INA §212(a)(9)(B) is not simply a penalty for remaining in the United States. The statutory bar generally concerns a period of unlawful presence followed by departure or removal.
A person may lack lawful status while some or all of that time is excluded from the statutory unlawful-presence calculation.
Age, I-94 expiration, application filing, agency action, deferred action, departure, parole, and other events can change the calculation.
A reliable analysis identifies the legal treatment of each period rather than counting every day of physical presence as unlawful presence.
INA §212(a)(9)(B)(iii)(I) provides that no period in which a person is under eighteen years of age is taken into account when determining unlawful presence under the three- and ten-year bars.
The applicants had entered without inspection, but the statute still excluded the period before each applicant turned eighteen from the unlawful-presence calculation.
A person who falls within the age exception is not asking USCIS to forgive counted unlawful presence. The excluded time does not count in the first place.
Passports, birth certificates, school records, immigration filings, and DACA records can establish the applicant’s age throughout the relevant period.
The exception ends at age eighteen. Any later period requires a separate analysis of deferred action, status, pending applications, departure, and other facts.
Siblings who entered together may have different birthdays, filings, DACA dates, departures, or other events affecting the result.
The defense focused on statutory exclusion, not hardship. The case did not require proof that family separation would be extreme because USCIS ultimately agreed that the applicants were not subject to the bar.
Their age at entry placed the initial years of residence within the statutory minor exception.
The children were brought into the country by a parent rather than independently arranging an adult immigration violation.
More than ten years of physical presence sounded serious, but the legal question was which days counted under INA §212(a)(9)(B).
The DACA filings and decisions helped document identity, age, residence, and later deferred-action periods.
The applicants had an underlying path to permanent residence through a U.S. citizen relative.
Once USCIS agreed that the bar did not apply, the adjustment applications could be approved on the underlying record.
The analysis required each applicant’s birth date, entry date, eighteenth birthday, DACA filing and approval, and adjustment history.
The response explained why a decade of residence did not equal a decade of statutory unlawful presence.
The legal memorandum connected the applicants’ ages to INA §212(a)(9)(B)(iii)(I).
The record needed to show whether any later period actually accrued and whether it reached the statutory threshold.
The requested relief was reversal of the inadmissibility determination—not discretionary waiver approval.
Once the unlawful-presence issue was removed, USCIS could decide the green card applications under the remaining eligibility requirements.
Established each applicant’s date of birth and age during every relevant period.
Documented the approximate entry period and confirmed that the applicants were children when brought to the United States.
Helped establish continuity of residence and age-based chronology without treating every day as countable unlawful presence.
Documented later immigration events relevant to the unlawful-presence analysis.
Identified the benefit sought and the exact inadmissibility concern raised by USCIS.
Applied the age exception and explained why the evidence did not establish the ten-year bar.
The published result states that extensive legal arguments and documentation were submitted. The exact client exhibit list remains confidential.
The disputed period was excluded by statute and therefore did not need to be forgiven.
Because the finding was corrected, the applicants did not need a qualifying spouse or parent to prove extreme hardship.
The clients avoided unnecessary departure and the risk of family separation tied to an incorrect bar.
The response asked USCIS to apply the law correctly rather than request favorable discretion despite inadmissibility.
Correction of the finding avoids carrying an unnecessary waiver and conceded bar into later immigration proceedings.
Removing the bar did not replace the need to qualify for adjustment through the U.S. citizen relative and satisfy all other requirements.
Age, deferred action, asylum, family unity, trafficking protections, pending applications, government error, and other statutory or policy rules can exclude periods that initially appear unlawful.
After several months of legal advocacy, USCIS agreed that the two applicants were not inadmissible under INA §212(a)(9)(B).
The adjustment applications were approved, and both applicants became lawful permanent residents without leaving the United States to pursue an unnecessary waiver.
The result was a correction of the statutory analysis—not an approval based on extreme hardship.
Congress expressly excluded time before age eighteen from the unlawful-presence calculation.
The number of years in the country is less important than the legal classification of each period.
DACA does not create lawful status, but deferred-action periods and the applicant’s age can matter to accrual.
An adverse conclusion announced at an interview is not immune from legal and documentary challenge.
Conceding inadmissibility can be unnecessary and strategically harmful when the statute excludes the disputed period.
Different birthdays and immigration events can create different results even within one family.
Once a person turns eighteen, later days may accrue unless another exception, authorized stay, or nonaccrual rule applies.
An applicant who accrues sufficient unlawful presence after age eighteen and later departs may face the statutory bar.
Deferred action generally does not erase unlawful presence that accrued before the DACA period.
Even when INA §212(a)(9)(B) does not apply, adjustment eligibility, admission or parole, INA §245 requirements, and other grounds must be reviewed.
A removal order, departure, unlawful reentry, or INA §212(a)(9)(C) issue can require different relief.
Birth records, travel history, DACA timing, departures, applications, and government records can produce a different outcome.
The clients’ names, nationality, exact ages, family sponsor, USCIS office, receipt numbers, interview dates, and other identifying details are not published.
The anonymization does not change the childhood entry, DACA history, ten-year-bar finding, age-based challenge, reversal, or approval of both green cards.
This result depended on each applicant’s age, entry history, DACA record, adjustment eligibility, lack of countable unlawful presence, documentary evidence, and the precise USCIS finding.
Past results do not guarantee, predict, or imply that USCIS will reverse another unlawful-presence finding or approve another adjustment application.
Two children entered without inspection while they were minors, later received DACA, and applied for green cards. USCIS applied the ten-year unlawful-presence bar. The finding was challenged and reversed, and both green cards were approved.
USCIS applied INA §212(a)(9)(B), which contains the three-year and ten-year unlawful-presence bars.
INA §212(a)(9)(B)(iii)(I) expressly excludes any period during which the person was under eighteen years of age.
No. USCIS ultimately agreed that they were not inadmissible under the unlawful-presence ground, so no waiver was necessary.
Entry without inspection can create serious immigration issues, but unlawful-presence accrual must still be calculated under the statute, including age-based and other exceptions.
No. DACA does not create lawful immigration status, although deferred action generally affects unlawful-presence accrual during the approved period.
Yes. Once a person turns eighteen, later days may count unless another exception or nonaccrual rule applies.
The statutory bars generally involve sufficient unlawful presence followed by departure or removal. The complete travel and procedural history must be reviewed.
Birth certificates, passports, entry history, school records, DACA filings, adjustment records, travel history, and a date-specific legal analysis can be important.
A waiver concedes that the ground applies and asks for discretionary relief. A statutory exception means the disputed period does not count in the first place.
Yes. A supported legal and factual response can lead USCIS to correct an interview conclusion before issuing the final decision.
No. Every case depends on its own age, dates, entry and departure history, applications, other grounds, adjustment eligibility, and evidence.
Additional findings corrected, waivers approved, removals vacated, and visas issued.
Accrual, exceptions, departures, bars, evidence, and calculation rules.
Minors, asylum applicants, family unity, trafficking victims, and other exclusions.
Build a date-by-date chronology and distinguish status violations from countable days.
Legal memoranda, agency records, evidence, reconsideration, and correction strategy.
When the bar is valid and extreme-hardship relief is required.
Provisional unlawful-presence relief before immigrant visa processing abroad.
Another case where correction—not a waiver—resolved the government finding.
A complete analysis should identify age, status, I-94, DACA or deferred action, asylum and other filings, every departure, removal history, parole, statutory exceptions, adjustment eligibility, and all possible grounds of inadmissibility.
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