One of the more complicated parts of 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, 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 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 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.
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 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:
For more information about inadmissibility, see Who Can't Get In to The United States?
It's important to note that the law uses the specific expression “unlawful presence,” which has its own 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:
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.
And for people subject to the permanent bar described above, USCIS argues 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).
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.
In a few 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 entered the U.S. legally (even if they overstayed a visa) and who 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 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 could be denied due to the three- or ten- year bar; though the applicant could potentially overcome this by applying for a waiver of unlawful presence.
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
And for more about the steps in applying for U.S. lawful permanent residence, see Filing for a Green Card: Process Overview.
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.