“Three to Ten Year Bar” on entering the U.S. due to Unlawful Presence
A person who has been unlawfully present in the U.S. for a period of more than 180 days but less than one year after the expiration of their non-immigrant lawful status or who entered the U.S. without being admitted or paroled, and thereafter leaves the U.S., is barred from entering the country for three years. This is what is referred to as the “Three-Year Bar.” INA Section 212(a)(9)(B)(i)(I).
On the other hand, if a person has been unlawfully present in the U.S. for more than one year after the expiration of his/her non-immigrant status or entered the U.S. without being admitted or paroled, and thereafter leaves the country, s/he is barred from entering the U.S. for ten years. This is what is referred to as the “Ten-Year Bar.” INA Section 212(a)(9)(B)(i)(II).
The exception to the “Three to Ten Year Bar on Entering the U.S.” are minors, asylees, Family Unity Program beneficiaries and battered women and children pursuant to the Violence Against Women’s Act (VAWA).
Waiver for Unlawful Presence
For some applicants who are immigrating to the U.S. a waiver (Form I-601) is available to the “Three to Ten Year Bar.” To qualify for a waiver, the immigrant must provide evidence that if their immigrant visa is denied and s/he is unable to immigrate to the U.S., their qualifying relative/s will suffer extreme hardship. Qualifying relatives under this section of the immigration law are U.S. citizen and/or lawful permanent resident spouses or parents. INA Section 212(a)(9)(B)(v).
“Permanent” Bar on Entering the U.S.
Applicants for immigrant status who were unlawfully present in the U.S. for an aggregate period of more than one year or who have been removed from the U.S., and, thereafter, attempt to enter or enter the United States without being lawfully admitted in the U.S., will not be able to submit the waiver for unlawful presence until they have been outside of the U.S. for more than 10 years.
Note: Applying for a waiver is a complicated process that requires substantial documentation to show extreme hardship and, therefore, it is highly advisable to contact an Immigration Attorney to ensure a higher probability of success in the waiver application process.