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Three and Ten Year Unlawful Presence Bar Waiver
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Your Guide to Unlawful Presence Bar Waivers.
If you have accrued unlawful presence in the United States, leaving the country may trigger a three- or ten-year bar on returning. In some cases, you may qualify for a waiver that allows you to seek admission before the full bar has passed. This guide explains when the unlawful presence bars apply, who may qualify for a waiver, and how the waiver process works.
The three- and ten-year bars can apply when a person leaves the United States after accruing a certain amount of unlawful presence. The length of the bar generally depends on how much unlawful presence was accrued before departure.
Three-year bar: This may apply if you accrued more than 180 days but less than one year of unlawful presence before leaving the United States.
Ten-year bar: This may apply if you accrued one year or more of unlawful presence before leaving the United States.
If a bar applies, you may be unable to return to the United States for the required period unless you qualify for a waiver or another form of relief. Certain applicants may request a waiver by showing that refusing admission would cause extreme hardship to a qualifying U.S. citizen or lawful permanent resident spouse or parent.
Whether you qualify depends on your immigration history, the amount of unlawful presence accrued, and other circumstances affecting your case.
To qualify for an unlawful presence waiver, you generally must show that refusing your admission would cause extreme hardship to a qualifying U.S. citizen or lawful permanent resident spouse or parent. The hardship must generally go beyond the difficulties normally associated with family separation or relocation.
USCIS considers the circumstances as a whole. Relevant factors may include:
Health and medical needs: A qualifying relative may have a medical condition, disability, or need for treatment or care that would be affected by your absence or relocation.
Financial hardship: Your absence may affect household income, housing, medical expenses, debts, or the qualifying relative’s ability to meet other financial obligations.
Family and caregiving responsibilities: Your role in caring for children, elderly relatives, or family members with special needs may be relevant.
Educational impacts: Separation or relocation may affect a qualifying relative’s education, training, or educational opportunities.
Conditions in another country: Safety concerns, health care access, economic conditions, language barriers, and other circumstances in the country of relocation may contribute to hardship.
Family and community ties: USCIS may consider the qualifying relative’s family, employment, community, and other ties to the United States.
Combined hardship: Several circumstances that may not establish extreme hardship individually can become significant when considered together.
Evidence may include medical records, financial documents, employment records, evaluations, country-condition information, and statements explaining how denial of the waiver would affect the qualifying relative.
Form I-601 and Form I-601A both involve waivers of inadmissibility, but they serve different purposes.
Form I-601A addresses unlawful presence only. It does not waive other grounds of inadmissibility. If another ground applies, approval of a provisional waiver may not be enough for an immigrant visa to be issued.
Which form applies depends on your immigration history, the ground of inadmissibility involved, and where you are in the immigration process.
Several parts of your immigration history can affect whether an unlawful presence bar applies or whether additional immigration issues must be addressed.
Entering the United States without inspection does not by itself trigger a three- or ten-year bar. The bars generally become relevant after a person accrues the required period of unlawful presence and then leaves the country.
If you must depart for consular processing, determining how much unlawful presence you have accrued before leaving is important because departure may trigger the bar.
The permanent bar is separate from the three- and ten-year bars. It may apply when a person accrues more than one year of unlawful presence in the aggregate and later enters or attempts to reenter the United States without being admitted.
A person subject to this ground of inadmissibility may generally need to remain outside the United States for at least 10 years before seeking consent to reapply for admission. Different rules apply to this bar.
A prior removal can create additional grounds of inadmissibility separate from unlawful presence. This means an unlawful presence waiver may not resolve every immigration issue created by a previous removal.
Depending on the circumstances, additional permission or relief may be required before returning to the United States.
Time spent in the United States before age 18 generally does not count toward the unlawful presence that triggers the three- or ten-year bar. If no other exception applies, unlawful presence generally begins accruing after a person turns 18.
Certain periods may be excluded when calculating unlawful presence. The rules depend on the person’s immigration status, pending applications, and other circumstances.
Because the amount of unlawful presence can determine whether a bar applies, reviewing your immigration history and relevant dates is important before leaving the United States.
The unlawful presence waiver process depends on your immigration history, the type of waiver you need, and the immigration benefit you are seeking. The general steps include:
For applicants using the provisional unlawful presence waiver process, approval does not guarantee that an immigrant visa will be issued. A consular officer may identify another ground of inadmissibility during the immigrant visa interview that is not covered by the waiver.
Unlawful presence cases can become complicated when you are unsure how much unlawful presence you accrued, whether another ground of inadmissibility applies, or which waiver process you should use. Legal guidance may also be helpful when preparing evidence of extreme hardship or determining the risks of leaving the United States for consular processing.
Andrew T. Thomas, Attorneys at Law assists individuals throughout Texas with unlawful presence and green card matters. Contact us to discuss your circumstances and the immigration options that may be available to you.
Generally, a U.S. citizen or lawful permanent resident child is not a qualifying relative for the three- or ten-year unlawful presence waiver. The qualifying relative is generally a U.S. citizen or lawful permanent resident spouse or parent. However, hardship to a child may still be relevant when it affects the hardship experienced by a qualifying spouse or parent.
A prior removal order can affect eligibility for a provisional unlawful presence waiver and may create a separate ground of inadmissibility. Some applicants with certain removal orders may need additional permission before they can qualify for the I-601A process. Your complete immigration and removal history should be reviewed before filing.
Not necessarily. An approved Form I-601A waives only the unlawful presence ground covered by the provisional waiver. A consular officer may determine during your immigrant visa interview that another ground of inadmissibility applies. This is why identifying possible immigration issues before departing the United States is important.
Yes. The provisional waiver process is designed to allow eligible applicants to request a waiver of unlawful presence while they are still in the United States and before leaving for consular processing. However, filing Form I-601A does not itself give you lawful immigration status, employment authorization, or protection from removal.
The next steps depend on which waiver you filed and why it was denied. Depending on the circumstances, you may be able to file a new waiver application, pursue another available immigration option, or challenge certain decisions. Before taking another step, it is important to understand the reason for the denial and whether other grounds of inadmissibility affect your case.
