The three and ten-year bars apply to those who entered the United States unlawfully and remained, and those who entered the United States with a visa and failed to depart once their visa expired. The time spent in the U.S. without a valid visa or permission from the U.S. government is known as “unlawful presence.” The 3 and 10-year bars are only triggered upon a person’s departure from the United States.
When are the 3 & 10-year bars triggered?
When someone is in the United States, unlawfully present, for more than 180 days, but less than one year, and then departs the United States, they will trigger the three-year bar. When someone is in the United States, unlawfully present, for more than one year, and then departs the United States, they’ll trigger the 10-year bar.
What is Unlawful Presence & When does it Matter?
Unlawful Presence is the time that an individual is in the United States without lawful status. The INA defines two situations in which you will accrue unlawful presence: (1) if you entered without inspection you accrue unlawful presence from the day you enter, and (2) if you entered with a visa you may begin accruing unlawful presence the day after your authorized stay expires.
For the three and ten year bars, the following periods matter:
- Unlawful presence after April 1, 1997;
- If you have violated the terms of your visa, you may be accruing unlawful presence prior to the expiration of your authorized stay (example: working while on a B2-tourist visa);
- Once you turn 18 years old;
- Do not count time during which you have approved deferred action;
- Do not count time while certain applications are pending (examples: asylum, adjustment of status, TPS, change of status).
- Unlawful presence must be continuous to trigger a bar (example, if you were unlawfully present in the U.S. for five months and then depart you will not trigger a bar. If you return and overstay for an additional three months and leave, you will not trigger a bar).
Why do the three and ten-year bars matter to me?
The bars matter when you’ve been unlawfully present for more than 180 days or 1 year and you intend to consular process; you will trigger one of these bars when you depart for your interview. That is important because you will need an approved waiver if you’d like to return to the United States within the next three or ten years. It’s imperative to know whether you qualify for a waiver of the 3 or 10-year bars BEFORE departing the United States.
Who Qualifies for the Waiver of the three & ten-year bars?
The three and ten-year bars of inadmissibly are found in section 212(a)(9)(B) of the Immigration and Nationality Act. Section 212(a)(9)(B)(v) provides for a waiver of the bars if the denial of your immigrant visa would result in extreme hardship to your U.S. citizen or lawfully resident spouse or parent.
It is important to note that an unlawful presence waiver cannot be based on an applicant’s child. This is important, particularly in cases where the I-130 petitioner is a USC child applying for their parents. If the parent needs a waiver of unlawful presence, they’ll need a USC or LPR spouse or parent upon which to base the hardship.
Historically, a person had to wait until they were outside of the country to file a waiver of the three or ten-year bars because the bars aren’t triggered until one leaves the country. However, now you may be able to submit form I-601a, Application for Provisional Unlawful Presence Waiver if this is the only waiver that you’ll need.
Please contact a knowledgeable and experienced immigration attorney if you believe that you may be subject to the three or ten-year bars. Our attorneys at Landerholm Immigration, APC, have extensive experience in cases involving grounds of inadmissibility and waivers. Please feel free to call us at (510) 491-0291 to see how we can help!