Navigating U.S. immigration can be challenging especially when dealing with the consequences of unlawful presence. If you’ve spent time in the country without proper documentation, such as a visa or green card, you may face serious issues when trying to get a visa or lawful status, and one of the problems is the three- and ten-year time bars, which can prevent you from returning to the States after leaving.
Understanding It
The United States Congress introduced penalties in the late 1990s, for those who stayed in the country without authorization and they were called inadmissibility bars, it made things difficult for those individuals to return to the U.S. after they left. There are two of them, which are:
- Three-Year Bar: if you were unlawfully present in the U.S. for more than 180 days but less than one year and then left voluntarily.
- Ten-Year Bar: This applies if you stayed without the right documents for more than one continuous year and then left, whether you left voluntarily or were deported.
What Constitutes Unlawful Presence?
It means staying in America without proper authorization and it can happen in various ways, like overstaying a visa, violating the terms of a visa, or being denied asylum. It can also affect those awaiting decisions on their immigration applications or involved in removal proceedings. Given the complexity, consulting an experienced immigration lawyer is advisable.
How It Affects You
The three- and ten-year bars primarily affect those who have left the U.S. and are trying to reenter. They don’t generally apply to individuals already in the country who are eligible to adjust their status to obtain a green card but many people have to apply for their visas through U.S. consulates overseas, either because they live abroad or aren’t eligible to adjust status within the United States so If you fall into this category and have been living unlawfully in the country, the time bars can be a significant barrier to returning.
Exceptions and Loopholes
Not everyone with unlawful presence will face these time bars:
- Pre-1997 Unlawful Time: Time spent unlawfully in the U.S. before April 1997 doesn’t count.
- Underage Unlawful Time: Unlawful presence while under 18 doesn’t count towards the three- and ten-year bars.
- Brief, Sporadic Presence: The bars only apply if the unlawful presence is continuous.
Waivers
If you’re facing a time bar, all hope is not lost. You might qualify for a waiver if you’re married to or the child of a U.S. citizen or permanent resident. To obtain a waiver, you must prove that your absence would cause “extreme hardship” to your U.S. spouse or parent. This standard is high and typically requires demonstrating severe medical, financial, or other significant difficulties.
Key Takeaways
- Three- and ten-year bars: Apply to those who have left the U.S. after unlawful presence.
- Exceptions: Certain periods and conditions may not count towards the bars.
- Waivers: Possible if you can prove extreme hardship to a U.S. citizen or permanent resident family member.
Next Steps
If you’re facing issues related to unlawful presence and the time bars, consult an immigration attorney. They can guide possible legislative changes, waivers, and the best strategies for your situation. Understanding the complexities of immigration law and seeking professional advice can help you navigate these challenges more effectively.
Are other U.S. consulates following the same interpretation as CDJ
The recent change in the interpretation of unlawful presence as it relates to minors by the U.S. Consulate in Ciudad Juarez (CDJ) has raised concerns about whether other U.S. consulates are adopting the same approach. Currently, there is no definitive information indicating that other consulates are following CDJ’s interpretation, which has ceased applying the “minor exception” to unlawful presence findings under INA §212(a)(9)(C) for minors.
CDJ’s Interpretation:
The CDJ has stopped applying the minor exception for unlawful presence, leading to potential denials of immigrant visas for minors who previously would have been exempt. This change is based on a directive from the Visa Office, which has not clarified whether this interpretation is being implemented at other consulates 1.
Lack of Confirmation from Other Consulates:
As of now, it remains unclear if other U.S. consulates are applying the same interpretation regarding unlawful presence for minors. The Visa Office has not issued a broader directive that would apply uniformly across all consulates, leaving the situation somewhat uncertain 1.
Potential for Variation:
Immigration practices can vary significantly between different consulates due to local policies and interpretations of federal law. Therefore, while CDJ has made this change, it does not automatically imply that other consulates will follow suit without explicit guidance or evidence 1.
Ongoing Monitoring:
Legal practitioners and advocacy groups are closely monitoring this situation and raising concerns with relevant government agencies to seek clarity on whether similar interpretations will be adopted by other consulates
In summary, while the three- and ten-year time bars present significant hurdles, understanding your options and seeking expert guidance can help you find a way forward.
How Law and Visas Can Help?
At Law and Visas, our team of expert immigration consultants is here to make your travel to the United States straightforward and successful. Whether you’re applying for a J-1 Exchange Visitor Visa or F-1 Student Visa, we handle every step—from preparing your application to gathering the required documents.
Our Immigration Consultants and Lawyers ensure that your application meets the highest standards, with no details missed. We’ll also keep you informed throughout the process and coordinate with the immigration office or embassy on your behalf.
Law and Visas has a strong record of helping clients secure the visas/permits they need to visit the United States. Call us today at +234 812 5505 986 to learn how we can assist you.
