Brought Here as a Child: the 10-Year Bar Is Now Your Strongest AOS Case

A caller on the May 28 Immigration Answer Show entered the U.S. on a visa as a 12-year-old in 2014, was inspected and admitted, and has the I-94 to prove it. He grew up here, married a U.S. citizen, and filed to adjust status. Then the interview came and went with no decision, days after USCIS issued PM-602-0199. Jim Hacking’s read is that USCIS is sitting on cases like his to run them through the memo’s new discretion screen. It is also the fact pattern where an applicant has the most to work with.

The memo’s core move is to weigh an applicant’s failure to leave and consular process as an adverse factor, but only “where consular processing is available.” For a childhood arrival, it effectively isn’t. Because he entered as a minor and kept living here, the clock on unlawful presence started when he turned 18, and by now he has years of it. The moment he leaves the country to interview at a consulate, the ten-year bar under INA 212(a)(9)(B) locks him out. Consular processing is not a real alternative when using it means a decade abroad, separated from a U.S. citizen spouse and child.

That flips the memo’s logic. The factors PM-602-0199 tells officers to weigh (family ties, long residence, hardship to the applicant and to qualifying relatives) line up in his favor, and the childhood arrival adds a distinct one: he overstayed through no fault of his own, as a minor with no say in the matter. Add a U.S. citizen spouse and child who would be separated for ten years, and the hardship the memo demands is not a stretch to describe. This is the opposite of the parent on a B-2 who can simply fly home and interview; here, leaving is the punishment.

None of that guarantees an approval, because Hacking expects USCIS to fight it. The likely next step is a request for evidence or a notice of intent to deny asking the applicant to prove his case warrants a favorable exercise of discretion, and the templates went out fast enough that practitioners believe the agency had them ready before the memo was a week old. His advice is to answer under protest: contest the memo’s legality first, then satisfy it anyway.

The “answer it anyway” half is the practical work: assembling the discretion record the RFE will ask for (tax history, length of residence, the qualifying relatives, the bar that makes departure ruinous) and getting it in when the notice arrives rather than volunteering it early. That record is now what the interview turns on, and the full mechanics of the bar itself are worth understanding before anyone even considers leaving. For the underlying standard the whole fight runs on, see our read of PM-602-0199.

The takeaway for anyone brought here as a child and now staring at this memo: the years of unlawful presence that feel like a liability are, in this narrow way, the strongest card at the interview. Leaving is not a neutral alternative the government can point to. It is a ten-year exile from a U.S. citizen family, and that is exactly the hardship the new standard says officers must weigh.