Law Offices of Stuart J. Reich, PLLC

Practice Limited to Immigration & Nationality Law

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New York, NY 10004

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The Three- and Ten-Year Bars to Reentry

Q: What are the three- and ten-year bars to reentry?

A: A bar to reentry is a type of grounds for inadmissibility - something which prevents admission to the United States. These bars are a specific type of ground for inadmissibility caused by building up certain amounts of "unlawful presence" - explained below - and then leaving.

Q: When does a foreign national become subject to one of these bars?

A: An individual becomes subject to these particular bars by accruing "unlawful presence" in the U.S. - by being here without valid status in certain circumstances - for a given period of time AND THEN leaving the U.S.

These periods of unlawful presence are 180 days for a three-year bar to re-entry, and one year for a ten-year bar to re-entry. Remember: even if the foreign national accrues 180 days or one year of unlawful presence, the person does not become subject to the bars until the person leaves the U.S.

Q: How does a foreign national "accrue" unlawful presence time - is it just like being out of status?

A: No, unlawful presence isn't the same as just not being in status or violating status - fortunately, not everyone who is without status or who has violated status accrues unlawful presence.

Unlawful presence can start to accrue when a visa expires, or when someone enters illegally, or when an immigration officer or judge makes a determination that a person is out of status. While violating a non-immigrant visa status by doing something not allowed by that status can cause a person to instantly be "out of status," they aren't instantly building up "unlawful presence" (at least, not without an immigration officer or judge saying so).

There are a few exceptions or unique features to unlawful presence. If a person is under a certain age, unlawful presence time doesn't accrue - even if that person would otherwise be accruing unlawful presence because their visa expired or they entered without inspection.

Formerly, certain visa types - if admitted a certain way (for “duration of Status” or “D/S”) – wouldn’t accrue unlawful presence unless an immigration official or judge makes a determination that they were out of status. This was true even if their paperwork makes it appear that their status had expired.

A policy memorandum set forth by USCIS in May of 2018, to become effective in early August of 2018, changed this interpretation – the expiration date on SEVIS documentation (an I-20 form for F-1, a DS-2019 form for J-1s) now does control when unlawful presence begins to accrue even without a formal determination by an immigration officer or judge. This is now a far more complicated situation. Therefore, this is one area where it is critical to consult an immigration lawyer before doing anything.

Q: Am I still subject to the three and ten-year bars if I marry a U.S. citizen or if a U.S. employer sponsors me for a green card?

A: Yes. Neither of these things by itself removes the three or ten-year bars to inadmissibility once a foreign national has become subject to one of them. However, marriage to a citizen may in some cases make it possible to apply for a waiver of these bars.

Remember that the permanent residence process includes a petition for an immigrant visa, during which one needs to demonstrate a basis for the foreign national obtaining permanent residence, and the Adjustment of Status or Consular Processing portion, where it must be demonstrated that there is no reason NOT to grant the foreign national permanent residence.

Marriage to a citizen or employer sponsorship would each be a basis of qualification for an immigrant visa, but the three- or ten-year bars to reentry - once they apply - remain as grounds of inadmissibility at the Adjustment of Status or consular processing stage.

A waiver of the grounds for inadmissibility may be available based upon a showing of extreme hardship to a US citizen spouse or parent – so the marriage to a citizen may provide a basis to apply for a waiver if sufficient hardship is present. This is far from automatic, however.

Q: Once subject to the three- or ten-year bars to reentry, is there any way a foreign national can overcome these bars?

A: Yes. Aside from simply remaining overseas for the three or ten years, there are waivers available. However, these waivers are relatively difficult to obtain and there are only certain circumstances which permit a foreign national to get them. A qualified immigration attorney should be consulted to determine the likelihood of a waiver for each specific situation - preferably before a foreign national has become subject to the bar.

Contact us here to arrange a consultation, to inquire about retaining us to handle your immigration matter, or simply to suggest topics you would like to see covered on our site.

The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.