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Consequences of Unlawful Stay/Overstay In The U.S. the 3yr, 10yr & perm bar

Posted by attorney Khaja Din

Consequences of Unlawful Stay/Overstay In The US

The 3 and 10 year bars to re-entry

The 1996 Illegal Immigration Reform and Responsibility Act (IIRAIRA) a created three year, ten year, and permanent bars on admission to the U.S. for a variety of immigration status violations.

These bars on reentry to the US apply widely and affect immigrants who may have family in the U.S., have worked and paid taxes in the U.S., and in many cases are otherwise eligible for permanent resident status.

The three year bar to re-entry into the U.S.: The three year bar applies to individuals who have been unlawfully present in the United States for a continuous period of more than 180 days, but less than one year, and who voluntarily depart the U.S. Voluntarily depart means leaving the US under a voluntary departure order or leaving the US without any immigration court order.

The ten year bar to re-entry into the U.S.: The ten year bar applies to individuals unlawfully present in the U.S. for an aggregate period of one year or more who depart voluntarily. Depart voluntarily means leaving the US under a voluntary departure order or leaving the US without any immigration court order.

Unlawful presence begins to accrue when the period of authorized stay expires or after an entry to the U.S. without inspection.

The following classic example highlights the excessive harshness of these bars:

Example: An individual applies for and receives a 5 year visitor visa and enters the U.S. pursuant to such visa to visit family. At the border, the inspecting officer (Customs and Border Patrol Officer) annotates Form I-94 (white card stapled inside of the passport) by hand authorizing only a 90 day period of admission. The visitor, believing the visa authorizes his stay in the U.S. for the next 5 years, does not realize that the annotated Form I-94 limits his period of stay and he remains in the U.S. for 10 months. At day 91 of his stay in the U.S., he begins to accrue unlawful presence and 180 days after that, he automatically becomes subject to the 3 year bar on reentry. (If he were to stay in the U.S. for a year after hitting day 90, he would become subject to the 10 year bar on reentry.)

Now even if this individual is eligible to become a permanent resident through family or employer sponsorship, he will be unable to attain that status: he is ineligible for adjustment of status (Section 245(i) of the Immigration and Nationality Act has expired), and he is ineligible to receive a permanent immigrant visa at a U.S. consulate until he has been outside the U.S. for the 3 (or 10 depending on the circumstances) year period.

If the immigrant is married to a U.S. citizen or lawful permanent resident, a WAIVER MAY BE AVAILABLE for 3 & 10 year bars. Having said this, there are numerous strategies that may allow a person to avoid these bars on re-entry including a U-Visa and VAWA. Please consult an immigration attorney to discuss how these bars may apply to you. Visit our website at www.dinmemmen.com or contact the author, Attorney Khaja M. Din, directly at kdin@dinmemmen.com or by calling (312) 361-8462.

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