A necessary consideration when reviewing a potential immigrant’s eligibility to obtain an immigration benefit, such as lawful permanent residence (or “Green Card”), is whether the person had been unlawfully present in the U.S.
The 3-Year Bar
The laws states that any person unlawfully present in the U.S. after March of 1997 may be barred from admission into the U.S. If the individual was in the U.S. for a continuous period of more than 180 days and less than 365 days, and voluntarily departed or was removed before any immigration proceedings were initiated, the person is barred from readmission for 3 years.
Fortunately, judges have upheld the interpretation that a person who obtains voluntary departure (*VD*) after proceedings have initiated does not trigger this 3-year bar. Likewise, a person who departs the U.S. after the commencement of a proceeding (when the I-862 notice is issued), or at its end, does not trigger this bar.
The 10-Year Bar
For persons who have been unlawfully present for 365 consecutive days or more, depart the U.S. and then reenters will be barred from admission for a period of 10 years. This bar is more severe than the 3-year bar in other ways too. It is triggered whenever and however the individual departs or is removed from the U.S., including departing after the commencement of an immigration proceeding.
When calculating the time spent in the U.S. for both these bars, one only considers continuous presence in the U.S. One does not add up separate periods of unlawful presence to determine if the bar is triggered. This means that a person can have 364 days of presence, leave the U.S. then reenter and not trigger the 10-year bar if the second period of presence is less than 365 days.
When calculating the time spent outside of the U.S., one begins from the date the person leaves the U.S. through the date of seeking admission. It is important to realize that for these bars, the time *outside* of the U.S. continues to run even when the person is paroled into the U.S. (for the duration of the parole period). This is because a parole is not an admission.
The Permanent Bar
An even more restrictive bar can be triggered by unlawful presence. This one also has a 10-year window, but it is considered *permanent* because after the 10 years are completed, one can only petition (form I-212) the Secretary of Homeland Security for permission to reapply. This is not a waiver and its granting is wholly at the discretion of Citizenship and immigration Services (*USCIS*).
So, how does one trigger this bar? Well, there are two ways but we will focus on the one strictly related to unlawful presence. It is triggered when a person enters or attempts to enter without inspection and had previously either been in the U.S. unlawfully after May of 1997 for a total period of over 365 days (i.e. in the aggregate) or been ordered removed.
The 10-year period required prior to filing the discretionary petition must be spent outside the U.S.
For the 3 & 10-year bars, there are certain instances where one*s time in the U.S. does not count toward unlawful presence. This includes:
a. any period occurring prior to the person*s 18th birthday,
b. any period of time after the person has filed an asylum application and has not worked without authorization,
c. the time accrued after benefiting from the 1990 Act*s family unity protection statute,
d. those qualifying under the Violence Against Women Act (*VAWA*) and
e. persons who are victims of severe forms of human trafficking.
The only exception that applies to the Permanent bar is VAWA.
For the Permanent bar, the only waiver (form I-601) available is for VAWA victims. Where the Permanent bar is one of multiple grounds of inadmissibility (not an uncommon occurrence), then a separate waiver will be needed in addition to the I-212. Since most I-601 waivers have stricter standards than the I-212, it is the decision on the waiver that tends to control whether the I-212 is approved.
For the 3 & 10-year bars, there is available an unlawful presence waiver using I-601 (or I-601A). These waivers are available to a spouse, son or daughter of a U.S. citizen (*USC*) or lawful permanent resident (*LPR*) who can establish that the USC/LPR petitioner will suffer extreme hardship if separated from the beneficiary or if forced to relocate out of the U.S. Waivers are complex and time-consuming to prepare.
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