The Three- and Ten-Year Bars: How New Rules Expand Eligibility for Waivers

Most Americans take it for granted that marriage to a U.S. citizen and other family relationships entitle an immigrant to permanent residence (a green card), but there are barriers that often prevent or delay these family members from becoming lawful permanent residents, even if they are already in the United States. Among these barriers are the “three- and ten-year bars,” provisions of the law which prohibit applicants from returning to the United States if they depart after having previously been in the country illegally.

Many people who qualify for green cards based on their relationships to a U.S. citizen or lawful permanent resident relative are caught in a Catch-22 —under current law they must leave the United States to apply for their green card abroad, but as soon as they depart, they are immediately barred from re-entering the country for a period of time. In other words, because of the punitive effect of our immigration laws, immigrants who have a chance to legalize their status may not be able to do so. Instead, they must choose between leaving the United States and taking the risk they might not be able to return, or remaining in the country without legal status.

The Secretary of Homeland Security may waive the three- and ten-year bars to admission in certain circumstances. Recent regulatory changes have broadened the number of people eligible for a process that allows them to apply for advance approval of the waiver in the United States, rather than enduring a lengthy separation from their loved ones while they apply abroad. Effective August 29th, 2016, the U.S. Department of Homeland Security (DHS) published a final rule that expands eligibility for the “provisional unlawful presence waiver.” This article provides background on the three- and ten-year bars and waivers, and explains the recent regulatory changes.

What Are the Three- and Ten-Year Bars?

The three- and ten-year bars were created as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996. Incorporated into section 212(a)(9)(B) of the Immigration and Nationality Act (INA), the statute imposes re-entry bars on immigrants who accrue “unlawful presence” in the United States, leave the country, and want to re-enter lawfully. “Unlawful presence” is a term of art that is not defined in the statute or regulations. However, the U.S. Citizen and Immigration Services (USCIS) Adjudicator’s Field Manual includes guidance on determining when a noncitizen accrues unlawful presence.

Generally, an immigrant who enters the United States without inspection, or who overstays a period of authorized admission, will be deemed to have accrued unlawful presence. Individuals who accrue more than 180 days, but less than one year, of unlawful presence are barred from being re-admitted or re-entering the United States for three years; those who accrue more than one year of unlawful presence are barred for ten years.

Who Must Leave the United States for a Green Card and Why?

Under the family-based immigration system, U.S. citizens and legal permanent residents (LPRs) may petition for green cards for certain family members. Sometimes the immigrant family members are outside of the United States when the petition is filed and when the visa becomes available, and sometimes those family members are already residing within the country while they wait for their petition to be adjudicated and their visa to become available. Those in the United States may be here legally on a visa, they may have come on a visa but that period of authorized stay expired, or they may have entered the country without proper documentation.

If the applicant for a family-based green card is the spouse, parent, or child under age 21 of a U.S. citizen (immediate relative) and if the applicant entered and remained in the country with a valid visa (such as a visitor or student visa), that applicant may, in most cases, ge