What You Need to Know about the 10-Year Bar Immigration

Posted by in Immigrants | Updated on August 25, 2022

Immigrating to the U.S. is a dream for many people, especially those who are looking for a better job or education. Some try to do it by marrying a U.S. citizen, thinking that this would instantly give them a lawful permanent resident status.

However, certain barriers prevent some family members from getting lawful permanent resident status, and it applies even if they are in the U.S. already. The 3- and 10-year bar immigration problems are often the culprit.

In this article, we will discuss the bars in more detail – so, if you are dealing with this, you’ll understand the reasons.

Three-Year and Ten-Year Bar Rule Explained

If someone is a foreign national and accrues “unlawful presence” in the United States and decides to leave the country but wishes to re-enter later, they may deal with bars. This all applies under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996.

Even though there is technically no definition of “unlawful presence” by the applicable statute, the USCIS has specific guidelines that can help determine whether someone has accrued any unlawful presence in the country.

People included in the guidelines are those who enter the United States without having the authorization to do so – for instance, they have no green card or visa. The guidelines also mention the persons who overstay their visa or the lawful residence period that was authorized.

As such, people who have accrued more than 180 days of unlawful presence but less than a year are barred from re-entering or being readmitted to the U.S. for a certain period. Those who manage to overstay for over a year will be barred for an extended period.

Three-Year Ban

People who have been discovered to have accrued 180 days but less than a year of unlawful presence will have a three-year bar from re-entering the U.S. or being readmitted to the country. So, if they depart from the U.S., they won’t be able to come back for 3 years.

Ten-Year Ban

The ten-year ban applies to individuals who have accrued more than a year of unlawful presence in the U.S. If they leave the country, they will be unable to enter for 10 years.

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

Nobody can get automatic citizenship after 20 years in the U.S., as automatic citizenship can only be obtained by birth. However, one can obtain citizenship by going through a certain procedure, like marrying a U.S. citizen, serving in the U.S. Military, or being a Lawful Permanent Resident for 5 years or more.

But some foreign nationals may have to leave the U.S. for a green card. There are U.S. legal permanent residents or citizens who may petition for a green card for specific family members under the family-based immigration system.

In some cases, the family members that wish to immigrate are not in the U.S. during the filing of the petition and when their visa becomes available. In other cases, the family members are already living in the country they are trying to obtain immigration rights in and they may live there while they wait for their visa to turn available.

Individuals who are in the U.S. may already have a visa and they reside in the country legally through it. Still, the chances are that their authorized stay period expired. Sometimes, they may have even entered the U.S. without having the right documentation.

When the one applying for the family-based green card is a parent, spouse, or child under 21 of a U.S. citizen and if they have entered the U.S. and remained in the U.S. with a valid visa, they can stay in the country to get their visa. They may use what is known as “adjustment of status” to get their green card.

But anyone else who applies through the family-based system has to leave the U.S. and apply for an immigrant visa at the U.S. embassy or consulate in their country. The process is known as “consular processing”. Any sibling or adult child of a U.S. citizen or the children and spouses of LPRs have to leave the U.S. to obtain their green cards.

This applies whether they entered the country with a legal visa or not. If you’ve entered without any inspection, you will have to apply for a Green Card outside the U.S.

Three-Year and Ten-Year Bar Waivers

In special cases, people may be able to get a waiver for their three- or ten-year bar. For example, if the person with the ban is the child or spouse of either a U.S. lawful permanent resident or a U.S. citizen, the individual can prove that this bar would be a reason for “extreme hardship” to their relative. As such, if you can prove that the bar would cause “extreme hardship” to the U.S. citizen or lawful permanent resident, you may end up having the bar waived.

Of course, this would be possible only as long as the visa applicant can show how the parent or spouse living in the U.S. would experience hardship. If the one experiencing hardship would be a foreign national or non-U.S. citizen or a child of the barred individual, it would not be taken into consideration.

That being said, before looking into how much a good immigration lawyer costs and considering hiring an attorney to help you with your immigration, you should think about whether you can obtain a waiver or not.

Other Bars to Re-Entry to the U.S.

The three- and ten-year bars are not the only ones that sometimes prevent immigrants from returning to the U.S. If the applicant has done certain crimes, they may also be banned from entering the U.S.

For example, if they were convicted of a crime, accused of misrepresentation, fraud, or a previous removal, an individual may not be allowed to come back to the U.S.

In case of severe crimes, the person may even be banned permanently from returning to the country. Some possible situations for this include a person who tries to come back to the U.S. before their bar ends, or when the individual has been convicted of specific crimes.

Luckily, all hope is not lost – at least not for everyone. If you still want to go to the U.S., you can hire immigration lawyers who can help you understand your legal rights better. On top of that, they can also help defend your ability to either return to the U.S. or stay in the country. You should seek a lawyer if you haven’t been barred yet but think you may be barred from coming back to the country.

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Final Thoughts

A 10-year immigration bar is what happens when someone accrues unlawful presence in the U.S. for over a year. They are not allowed to return to the country for 10 years. Meanwhile, if they stay in the U.S. unlawfully for more than 180 days but less than a year, they will only be barred from re-entering for 3 years. In some cases, you may get a waiver, but it is only available in special situations.


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