Understanding the Three and Ten-Year Bars for Unlawful Presence

One of the more complicated parts of U.S. immigration law punishes foreign nationals who have stayed in the United States unlawfully. It's not a criminal penalty, like a fine or prison; but it says that if such people leave the United States and then attempt to return, even by legal means, they will be barred from reentry for either three or ten years. The exact time bar depends on the length of their unlawful U.S. stay.

These are often called the "three and ten year bars" or "time bars" or something similar. There's also a so-called "permanent bar" that's part of this law. Here are details on what this portion of U.S. immigration law says, and what it means to any foreign national seeking a visa, green card, or other immigration benefit.

Immigration Penalties Under the Three- and Ten-Year Bars

The three- and ten-year bars are a ground of inadmissibility. U.S. immigration law contains a whole list of reasons that a person will be found inadmissible and thus denied a green card or in many situations, a nonimmigrant (temporary) visa. (See Section 212 of the Immigration and Nationality Act (I.N.A.).)

For example, being a criminal, terrorist, or someone likely to become a public charge (receive need-based government assistance) are all bases for inadmissibility.

Unlawful presence of more than six months is on that list. In summary, what the relevant portion of the law says is that:

• If you accrue unlawful presence in the United States of more than 180 continuous days but less than one year, but you leave before any official, formal removal proceedings (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 proceedings 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 life, although after ten years, you can request special permission to apply for a visa or green card.

For more information about inadmissibility, see Who Can't Get In to The United States?

What Is Unlawful Presence in Immigration Law Terms?

The law uses the expression "unlawful presence," which has its own legal meaning. Broadly speaking, it refers to time spent in the U.S. either 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 (which allowed work permits to families of people who received green cards as farmworkers or under the amnesty program of the 1980s while they waited for their own green cards to be processed)
• 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 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 their permitted stay in the U.S. under some form of visa or allowable stay, it's likely that their unlawful presence time was adding up and can be held against them.

For people subject to the permanent bar described above, unfortunately, the U.S. government takes the position that the above exceptions do not apply (though you would want to talk to a lawyer about this, as it's the subject of ongoing contention).

When Will Time Bar Penalties Affect an Applicant for Immigration Benefits?

The consequences described in this article 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 through a U.S. consulate.

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 for one's consular interview.

Avoiding the Time Bars by Adjusting Status in the United States

In rare instances, people eligible for green cards can avoid the time bars by adjusting status within the United States. In other words, they can submit all their paperwork to USCIS and attend an interview within the United States, at a USCIS office. 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).

Adjustment of status is, however, open to people who meet two criteria:

• they entered the U.S. legally (even if they overstayed a visa) and
• they 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 potentially be applied.

Dealing With the Time Bars When Consular Processing

Let's say Alonzo, who entered the U.S. illegally and is the brother of a U.S. citizen, wishes to apply for a green card. Most likely USCIS would approve his I-130 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 him in for an interview at an overseas U.S. consulate.

At the consulate, the officials would ask where Alonzo had been living for the past several years. If the answer is "In the United States, with no immigration papers or authorization," that's trouble. Unless he could show evidence of not having lived unlawfully in the U.S., the green card could be denied due to the three- or ten- year bar; unless Alonzo can overcome the time bar (receive legal forgiveness) by applying for a waiver of unlawful presence, discussed next.

Avoiding Time Bars With a Waiver Request

The best way out of this trap is the so-called "provisional" or "stateside" waiver, which allows would-be immigrants 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. But if they have any other grounds of inadmissibility to deal with, they'll have to wait until they're at the consulate and apply from abroad, using USCIS Form I-601.

And for more about the steps in applying for U.S. lawful permanent residence, see Filing for a Green Card: Process Overview.

Qualifying for a Waiver of the Three- and Ten-Year Bars

To obtain legal forgiveness of the time bars, applicants for admission to the U.S. must 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. Doing so will require supplying USCIS with affidavits and many forms of documentary proof. The level of hardship needs to be more than that which any family member would feel upon facing separation due to denial of a visa or green card.

You'll definitely want a lawyer's help with preparing the documents, and with strategizing your approach in general.