If you stayed in the U.S. without the proper documents, such as a visa or a green card, you may be prevented from returning to the U.S. for three years or 10 years. The time bars apply to people who stayed in the U.S. unlawfully after April 1997, which is when these provisions of the Immigration and Nationality Act took effect. The three-year bar applies if you spent more than 180 consecutive days unlawfully in the U.S. before leaving voluntarily. This means that you were never placed in removal proceedings. The 10-year bar applies if you spent more than one uninterrupted year unlawfully in the U.S. before leaving, or if you spent more than 180 consecutive days unlawfully in the U.S. before leaving involuntarily through the removal process. (If you spent more than a year unlawfully in the U.S., the 10-year bar applies, regardless of whether you left voluntarily or involuntarily.) Foreign nationals who spent time in the U.S. unlawfully when they were under 18 will not face three-year or 10-year bars on this basis. However, they may face the permanent bar below.
Three-year bar = a foreign national who has spent more than 180 continuous days in the U.S. unlawfully and then left voluntarily may be barred from returning to the U.S. for three years Ten-year bar = a foreign national who has spent more than one uninterrupted year in the U.S. unlawfully and then either left voluntarily or was deported may be barred from returning to the U.S. for 10 years
Some foreign nationals will be subject to what is called a “permanent bar” if they lived in the U.S. unlawfully for more than a year, or were deported, and then they illegally returned or attempted to return to the U.S. However, this bar is not always permanent because these foreign nationals may be eligible for a waiver after 10 years. It is called “permanent” because they will be permanently considered inadmissible and will need a waiver for any return.
Complications When Seeking a Green Card Without Adjustment of Status
The three-year bar and 10-year bar affect foreign nationals who are currently living outside the U.S., rather than foreign nationals in this country who qualify for the adjustment of status path to a green card. If you cannot use the adjustment of status process, or if you are already living in a different country, you will need to apply for an immigrant visa and a green card through a U.S. consulate overseas. This can cause serious problems for foreign nationals who need to leave the U.S. to go through the immigrant visa interview at the consulate. Unless they can get a waiver of inadmissibility (see below), they might have completed the paperwork for their application to no avail.
USCIS has addressed this issue by allowing some foreign nationals to apply for a provisional waiver before they leave the U.S. If they are successful, they can take approval of the waiver to their interview at the consulate. Since the waiver is provisional, the consulate does not need to accept it, but consulates usually do. A foreign national who uses this process does not need to spend a long time outside the U.S. while they are waiting for the waiver decision.
Waivers of Time Bars
In rare cases, these waivers may be available to people who have a spouse or parent who is a U.S. citizen or a lawful permanent resident. Getting a waiver requires showing that the U.S. spouse or parent of the inadmissible foreign national would suffer an extreme hardship if the foreign national is not allowed to enter the U.S. This is a very tough standard to meet and should be taken seriously. Most foreign nationals who are seeking a waiver will benefit from the assistance of an attorney. Any extreme hardship suffered by U.S. children of the foreign national does not matter, except to the extent that it causes an extreme hardship for the foreign national’s U.S. spouse or parent. Feeling unhappy or disappointed about the absence of the foreign national is not enough. A medical or financial exigency is often required.
Calculating Unlawful Presence
If a foreign national is unsure of the amount of unlawful presence that they have accumulated, such as if their visa did not list an exact expiration date or if they were in the U.S. while waiting for USCIS to approve or deny an application, an experienced immigration attorney may be able to help.