Unlawful Presence Bars: The Three and Ten Year Bars

Unlawful Presence Bars: The Three and Ten Year Bars

Have you been in the U.S. illegally for a year or more?
Are you worried about being separated from your spouse during the waiver process?
Did the consulate refuse to let your spouse back into the U.S. without a 10 year bar waiver?


Many immigrants find themselves stuck abroad after leaving the U.S. to interview for their green card at a consulate abroad. They departed the United States only to find out that they are now barred from re-entering the U.S.  The Immigration and Nationality Act makes inadmissible any alien who “was unlawfully present in the U.S. for a period of more than 180 days but less than 1 year.” This person is barred from re-entry into the United States for a period of three years. This is called the 3 year bar. Additionally, any alien “who has been unlawfully present in the U.S. for one year or more” is barred from re-entering the U.S. for a period of 10 years. This is called the 10 year bar. This section of the law is often referred to as the “3-10 year bar.”

Waiver of 3-10 Year Bar

But those stuck abroad may have an option in the form of a waiver. The law provides a discretionary waiver for applicants whose U.S. citizen or lawful permanent resident spouse or parent would experience extreme hardship if the applicant were unable to enter the United States in that 3 or 10 year period. If approved, the waiver allows the immigrant to lawfully re-enter with the immigrant visa (enter with their green card) and not wait outside the U.S. for 3 or 10 years.

This is a discretionary waiver, meaning that USCIS may deny the application if the circumstances warrant. In other words, if there are negative or weak factors in your case, USCIS could deny the application. An applicant must demonstrate extreme hardship. This is a case-by-case determination, considering all of the factors in an applicant’s case. Typically, USCIS will look at the consequences of  a family separation, any economic hardship to the family, need for medical care, and other relevant factors. Don’t go into this application blindly.

Many waivers are denied because of poor preparation and misinformation. Speak to one of our experienced attorneys to discuss your likelihood of success with our help. Se habla Español.

For more information about working with an SGG immigration attorney on your 3 or 10 year bar waiver case, click here or call us at 213.627.8997 today to book a detailed Case Evaluation appointment with an experienced family and removal immigration attorney.