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 the U.S. immigration authorities. Congress created a penalty that prevents people from returning to the U.S. for three years or ten years, depending on how long they stayed unlawfully in the country. These are often referred to as the “time bars,” or the “three– and ten-year bars.” (I.N.A. Section 212(a)(9)(B).)
Although the time bars are a big hurdle for many people, a waiver (legal forgiveness) is available in certain situations.
An additional penalty (which we will not discuss further in this article) 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), but it will be possible for them to return if they wait ten years and then get a waiver. Read The Permanent Bar to Immigration for Certain Repeat Violators for more information on this.
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. may not mean what you think it means. 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 rules. 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, you’ll need to consult an experienced immigration lawyer.
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 have the right to apply for their green card here.
Unfortunately, a number of people have no choice but to apply for their immigrant visa and green card through an overseas U.S. consulate, either because they are already 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 status, and who entered the U.S. with inspection—though exceptions to these rules exist.)
If you must leave the U.S., or are deported, the time bars could delay your immigrating to the U.S. as follows:
In the past, applicants who left the U.S. to attend their immigrant visa interview at an overseas consulate may not have even known about the time bars before they left. This meant they could get all the way through receiving approval of their initial visa petition (Form I-130 or I-140), submitting follow-up paperwork, and getting an 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 was to apply for a waiver of inadmissibility, as described below.
Fortunately, USCIS now 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.) This means that the applicant does not have to wait outside the U.S. for all the time it takes the government to decide whether it will grant the waiver. The successful waiver applicant will be able to leave the U.S. shortly before the interview at the U.S. consulate with USCIS's approval of the waiver 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).
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:
If you have a 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 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 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 visa applicants who must apply for their 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 he or she is now a permanent resident (which would help you if you had entered with a visa or on the Visa Waiver Progam, 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.