What Are the Three- and Ten-Year Bars? #
The three- and ten-year bars were created as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996. Incorporated into section 212(a)(9)(B) of the Immigration and Nationality Act (INA), the statute imposes re-entry bars on immigrants who accrue “unlawful presence” in the United States, leave the country, and want to re-enter lawfully. “Unlawful presence” is a term of art that is not defined in the statute or regulations. However, the U.S. Citizen and Immigration Services (USCIS) Adjudicator’s Field Manual includes guidance on determining when a noncitizen accrues unlawful presence. Generally, an immigrant who enters the United States without inspection, or who overstays a period of authorized admission, will be deemed to have accrued unlawful presence. Individuals who accrue more than 180 days, but less than one year, of unlawful presence are barred from being re-admitted or re-entering the United States for three years; those who accrue more than one year of unlawful presence are barred for ten years.
WAIVER OF THREE AND TEN YEAR BARS #
A waiver of the three- or ten-year bar is available, if the visa applicant is the spouse or child of a U.S. citizen or the spouse or child of an LPR and only if the visa applicant can prove that the bar would result in “extreme hardship” to the applicant’s citizen or permanent resident spouse or parent. Hardship to the immigrant is not a factor, and hardship to the immigrant’s children is not a factor (even if the children are U.S. citizens).
PROVISIONAL I-601A WAIVER #
The Form I-601A Waiver allows an applicant to obtain a waiver of unlawful presence while still in the US, only requiring that they travel abroad after the waiver is approved and they know they will be able to return.
To apply for a provisional waiver of unlawful presence the applicant must have a qualifying relative (US citizen or resident parent or spouse) and must demonstrate that their qualifying relative will experience “extreme hardship” if the applicant is not granted a visa and permitted to remain in the US.
What Is “Extreme Hardship?” #
Unfortunately, “extreme hardship” is not defined in the immigration statute or regulations, and over the years, the government has failed to apply the standard consistently. New guidance, released in October 2016 and effective December 5, 2016, clarifies the steps that must be taken to adjudicate an extreme hardship waiver and provides a list of factors that USCIS may consider when making a determination. The guidance further clarifies that to be considered “extreme,” the hardship must exceed that which is usual or expected and must go beyond what is typically associated with deportation.
USCIS and the waiver applicant must consider two different scenarios:
- Extreme hardship may occur if the family member remains in the United States while the applicant remains outside of the country. For example, if the applicant is the primary caretaker of an ill family member, separation may result in extreme hardship.
- Extreme hardship may occur if the family member leaves the United States to reside with the applicant elsewhere. For example, if both were to reside in the home country, the family member may be subject to ostracism, discrimination, or persecution, or may not have access to necessary medical treatment.
The guidance includes a lengthy list of social, cultural, economic, health, and other conditions that may be considered relevant, and USCIS is directed to examine the totality of the evidence to make a hardship determination.