Consequences of Unlawful Presence in the U.S.—Three– and Ten-Year Time Bars

In the late 1990s, Congress decided to punish foreign-born people who spend time in the U.S. unlawfully—that is, without a visa, green card, or other official permission from U.S. immigration authorities. Congress created a penalty that prevents people who've done this from returning to the U.S. after they've left the country. The bar is a form of inadmissibility, which lasts for three years or ten years, depending on how long the person stayed unlawfully. These are often referred to as the "time bars," or the "three– and ten-year bars." (See I.N.A. Section 212(a)(9)(B).)

Although the time bars are a big hurdle for many people wishing to apply for U.S. visas or green cards, a waiver (legal forgiveness) is available in certain situations.

If you spent time in the U.S. unlawfully at any time after April 1997, this article could be one of the most important for you to read and understand before you seek a U.S. green card or visa, no matter whether you are living inside our outside the U.S. now.

SEE AN EXPERT

"Unlawful presence" in the U.S. might not mean what you think. If you know that you came to the U.S. without permission, it's safe to say that your stay was unlawful. But the boundaries are less clear if, for example, you were waiting for U.S. Citizenship and Immigration Services (USCIS) to approve or deny an application you'd filed, were in removal proceedings (immigration court), or had a visa but violated its terms. Student visa cases can be particularly tricky, because students are admitted for the "duration of status"—that is, for as long as it takes them to complete their studies, instead of being given an exact expiration date on their U.S. stay. For issues such as these, consult an experienced immigration lawyer.

Details on Three- and Ten-Year Time Bars for Unlawful Presence

The first thing to understand about the time bars is that (with rare exceptions) they are imposed only on people who are overseas and trying to return to the U.S., not people who are already here and also have the right to apply for their green card here, through USCIS.

Unfortunately, a number of people have no choice but to apply for their immigrant visa and green card through an overseas U.S. consulate. That's either because they are already living or staying overseas, or because they are in the U.S. but ineligible to use the U.S. green card application procedure called adjustment of status. (Adjustment of status is ordinarily available only to people who are in lawful immigration status and who entered the U.S. with inspection—though exceptions do exist.)

If you have been living in the U.S. but must leave, or you are deported from the U.S., the time bars could delay your immigrating to the U.S. as follows:

• Three years. If you spent more than 180 continuous days (approximately six months) in the U.S. unlawfully and then left voluntarily (before being caught and placed into removal proceedings), you could be barred from coming back for three years.
• Ten years. If you spent more than one continuous year in the U.S. unlawfully, and then left for whatever reason (including being deported), you could be barred from coming back for ten years.

Thus it's possible for applicants to get all the way through receiving approval of their initial visa petition (Form I-130 or I-140), submitting follow-up paperwork, and getting a consular interview appointment—only to leave the U.S., attend the visa interview, and have the consular official inform them that although they would love to give them a visa, the time bars prevent them from actually reentering the U.S. for another three or ten years. Their only hope is to apply for a waiver of inadmissibility, as described below.

Fortunately, USCIS allows some applicants to apply for the waiver before, not after leaving the United States. (See Who Is Eligible for Provisional Waiver of Three- or Ten-Year Time Bar.) An important limitation is that the person must not need a waiver for any other ground of inadmissibility.

If the provisional waiver is granted, the applicant will be able to leave the U.S. shortly before the interview at the U.S. consulate, with USCIS's approval in hand. The consulate should accept USCIS's determination that the applicant should not be denied a visa because of the three- or ten-year bar (though this is not guaranteed).

Loopholes in the Unlawful Presence Time Bar Law

Not everyone who has ever lived in the U.S. unlawfully will have a time bar problem. The law contains a few loopholes, as follows:

• Since the law didn't go into effect until April 1, 1997, no unlawful time before that date counts.
• None of your unlawful time when you were under the age of 18 counts toward the three- and ten-year bars (though it does count toward the permanent bar).
• The law punishes only "continuous" presence (except for purposes of the permanent bar), so a few months here and there don't count, as long as no single stay lasted 180 days or more.

You might need an attorney's help to analyze whether you fit one of these.

Waivers of the Unlawful Presence Time Bar Law

If you have a potential time bar problem, don't give up yet—especially if you are married to, or are the child of, a U.S. citizen or permanent resident. In that case, you are one of the lucky few who can possibly ask for forgiveness, known in legal jargon as a waiver. But you'll need a lawyer for this—these waivers are not easy to get.

To be eligible, you will have to show that if you can't get your visa, your U.S. spouse or parent will suffer extreme hardship. And when the immigration laws say "extreme" hardship, they mean it. The likely sadness that your spouse or parent will feel at your living thousands of miles away, or moving to another country to be with you, will not even begin to get your waiver application granted.

An example of a case where the government would recognize extreme hardship is one where your spouse or parent has a severe medical problem and requires your constant attention. Financial hardship will also be taken into consideration.

Unfortunately, hardship that your U.S. citizen or permanent resident children, if any, would suffer does not count (although you could make an argument that their suffering would affect your U.S. citizen or permanent resident spouse or parent, emotionally, financially, or otherwise). For more information, see Proving "Extreme Hardship" to a U.S. Relative for Immigration Purposes.

These time bars put applicants who must apply for their immigrant visas overseas at a disadvantage. But the critical point is that the time bars are not imposed on applicants who are within the U.S., are eligible to get their green card by adjusting status here, and who do not leave. So if you are eligible to file your green card application (adjust status) in the U.S., do so, and stay put until your application is granted.

And if you are living in the U.S. unlawfully but are not eligible to adjust status here, see a lawyer. The lawyer could advise you, for example, whether there is any new legislation pending that would expand the right to use the adjustment of status procedure; when and whether your spouse might be eligible for U.S. citizenship if they're now a U.S. permanent resident (which would help you if you entered with a visa or on the Visa Waiver Program, in which case you could adjust status); the current odds of being granted a waiver; and how and whether you can use the "provisional waiver," discussed above, which allows certain people to request a waiver from USCIS after their I-130 has been approved but before their consular interview has been scheduled.

Also Make Sure You're Not Subject to the Permanent Bar

An additional penalty (which we will not discuss at length here) applies to people who returned to the U.S. illegally, or were caught trying to, after having lived in the U.S. unlawfully for more than a year, or after having been deported. This is usually referred to as the "permanent bar."

It's permanent in the sense that such people will always be inadmissible to the U.S. (not just for three or ten years). Nevertheless, it will be possible for them to return if they wait ten years and then successfully apply for a waiver. Read The Permanent Bar to Immigration for Certain Repeat Violators for more information on this.