One of the more complicated parts of recent U.S. immigration law punishes people who have stayed in the United States unlawfully, by saying that if they leave and then attempt to return (legally), they will be barred from reentry for either three or ten years, depending on the length of their unlawful stay. These are often called the “three and ten year bars,” or something similar. There’s also a so-called “permanent bar” that’s part of this law.
Here are some details on what this portion of the immigration law says, and what it means to any foreign national seeking a visa, green card, or other immigration benefit.
Penalties Under the Three- and Ten-Year Bars
The three- and ten-year bars are a ground of inadmissibility – these being reasons that a person will be denied a green card and in some cases a visa. For example, being a criminal, terrorist, or someone likely to become a public charge (receive need-based government assistance) are all bases for inadmissibility. A whole list of grounds of inadmissibility is found in Section 212 of the Immigration and Nationality Act (I.N.A.). Unlawful presence of more than six months is on that list.
In summary, what the law says is that:
* If you accrue unlawful presence of more than 180 continuous days but less than one year, but you leave before any official, formal removal procedures (i.e. deportation) are begun against you, you will be barred from reentering the United States for a period of three years.
* If you accrue unlawful presence of more than 365 continuous days, then leave prior to any deportation or other formal procedures being started against you, you will be subsequently barred from reentering the United States for a period of ten years.
* If you accrue unlawful presence of more than one year total (in the aggregate, not necessarily continuous), or are ordered removed (deported) from the U.S., and then subsequently enter or attempt to enter without inspection (for example, are smuggled across the border), you will be permanently barred from the U.S., — possibly for your entire life, though after ten years, you can request special permission to apply for a visa or green card.
For more information about inadmissibility in general, see “Who Can’t Get In to The United States?”
What Is Unlawful Presence?
It’s important to note that the law doesn’t just depend on whether a person was in the U.S. “illegally.” Instead, it uses the specific expression “unlawful presence,” which has its own meaning. In general, it refers to time spent in the U.S. after an unlawful entry or a visa overstay, without any right to be here.
Nevertheless, exceptions exist, such that it’s important to look at both what unlawful presence is and what it isn’t. You won’t accrue unlawful presence for purposes of the three- and ten-year time bars if and when you:
- were under the age of 18
- had a bona fide pending asylum application on file with U.S. Citizenship and Immigration Services (USCIS)
- were a beneficiary of the family unity program (allowing work permits to families of people who received green cards as farmworkers or under the amnesty program of the 1980s)
- had a pending application for either adjustment of status (a green card), an extension of status, or a change of status
- were a battered spouse or child who entered on a nonimmigrant visa and can show a connection between the abuse and the overstay
- were a victim of trafficking who can show that the trafficking was at least one central reason for your unlawful presence, or
- had received protection via Temporary Protected Status (TPS), Deferred Enforced Departure (DED), Deferred Action, or Withholding of Removal under the Convention Against Torture.
For anyone else who overstayed a visa, it’s likely that their unlawful presence time was adding up and can be held against them. And for people subject to the permanent bar described above, USCIS argues that these exceptions do not apply (though you would want to talk to a lawyer about this, as this is the subject of ongoing contention).
When Will These Penalties Affect an Applicant for Immigration Benefits?
These consequences apply only if you depart the United States and attempt to come back again, for example by applying for a green card or other visa. But that’s not as much protection as it might sound like, given that the very act of applying for a green card or visa often requires leaving the United States.
In a few rare instances, people eligible for green cards can avoid the time bars by adjusting status within the U.S. — that is, submitting all their paperwork to USCIS and attending an interview within the United States.
However, only limited categories of people are eligible to adjust status. This avenue is not open to people who entered the U.S. illegally (without a visa or other lawful admission), unless they’re lucky enough to be “grandfathered in” under an old law called Section 245(i). It is, however, open to people who entered the U.S. legally (even if they overstayed a visa) and are applying for green cards as the immediate relative (spouse, parent, or unmarried minor child under the age of 21) of a U.S. citizen.
People ineligible to adjust status but otherwise eligible for a green card have to apply for it through an overseas U.S. consulate. That’s when the time bars would be applied. For example, let’s say someone who had entered the U.S. illegally and was the brother of a U.S. citizen wished to apply for a green card. Most likely USCIS would approve the person’s I-130 visa petition, and then after several years had gone by until his priority date became current, the U.S. government would continue processing the case, finally calling the person in for an interview at an overseas U.S. consulate. At the consulate, the officials would ask the intending immigrant where he or she had been living for the past several years. Unless that person could show evidence of not having lived unlawfully in the U.S., the green card would be denied due to the three or ten year bar – unless the applicant successfully applied for a waiver.
A new (effective March 4, 2013) “provisional” or “stateside” waiver gives immediate relatives of U.S. citizens a way out of this trap, by allowing them to apply for waiver approval BEFORE leaving the U.S., instead of taking a chance on the U.S. consulate’s decision. See “Staying in the U.S. With The I-601A Provisional Waiver of Inadmissibility”
For more about the steps in applying for U.S. lawful permanent residence, see “Filing for a Green Card: Process Overview.”
Waiver of the Three- and Ten-Year Bars
There is a waiver available, allowing legal forgiveness to some applicants for admission to the U.S. — in particular, those who can demonstrate that if the waiver is not granted, their U.S. citizen or lawful permanent resident spouse or parents would suffer extreme hardship. But extreme hardship can be difficult to prove, and require affidavits, documentary proof, and more. It means more than the hardship that any family member would feel upon facing separation due to denial of a visa. You’ll definitely want a lawyer’s help with this, and with strategizing your approach in general.