Facing the 3-Year or 10-Year Bar? Get Clear Answers Before You Decide

If you were told that time without status could block a future visa or return, you probably want a clear answer first. Under 8 U.S.C. § 1182, a person who was unlawfully present in the United States for more than 180 days but less than 1 year and then voluntarily departed prior to the commencement of proceedings under section 1225(b)(1) of this title or section 1229a of this title may be inadmissible when they again seek admission within 3 years of the date of departure or removal. The 10-year bar applies after one year or more, followed by departure or removal.

Each piece is explained below, from the time limits to the waiver. Whether a bar applies depends on the facts of each case.

What INA 212(a)(9)(B) Says About the 3-Year and 10-Year Bars

As the USCIS Policy Manual explains, a person who accrued the requisite period of unlawful presence is inadmissible under section 212(a)(9)(B) of the Immigration and Nationality Act (INA) if the person again seeks admission to the United States within the statutory 3-year or 10-year period after departure or removal (whichever applies), a period that begins to run on the day of that departure or removal. The 3-year bar reads, in part:

The USCIS Policy Manual explains that a person who accrues more than 180 days but less than a year of unlawful presence during a single stay, departs, and again seeks admission within 3 years of that departure is inadmissible.

Two facts matter most: how long you were present, and the date you left. Each bar has its own time limit. USCIS Policy Manual guidance explains that a person who accrued the requisite period of unlawful presence is inadmissible if they seek admission again inside the 3-year or 10-year period after departure or removal.

An applicant for adjustment of status can face the same issue. Under 8 C.F.R. § 212.7, an applicant who is inadmissible on a ground with an available waiver may file for that waiver.

The 3-Year Bar Covers More Than 180 Days but Less Than One Year

A person with more than 180 days but less than 1 year of unlawful presence who voluntarily departs the United States before the commencement of proceedings under section 1225(b)(1) of this title or section 1229a of this title may be inadmissible under 8 U.S.C. § 1182 if they seek to come back within 3 years of the date of departure or removal. The count is in days, so exact dates matter. The statute gives a range, and the length of the stay decides which bar fits.

The 3-year period starts on the day of departure, after the unlawful presence has built up. USCIS Policy Manual guidance says it keeps running whether or not the person returned during it.

Here is a made-up example. Say a person’s status ended on March 1, and they stayed until October 1. That is 214 days, which is more than 180 but less than a year. They leave on October 10. After that period ends, the 3-year bar no longer applies on that basis.

The 10-Year Bar Covers One Year or More of Unlawful Presence

The 10-year bar applies when someone has one year or more of unlawful presence during a single stay, then departs or is removed. The 10-year period runs from the date of departure or removal. Once it ends, the 10-year bar no longer applies on that basis.

Each ground needs its own analysis. The table below compares the two time-limited bars.

Departure Is the Trigger That Starts Both Bars

Both bars start on the day a person departs or is removed, after the unlawful presence has built up. Leaving the country starts the clock. Staying abroad or returning does not stop it.

USCIS Policy Manual guidance says the period continues to run without interruption, regardless of whether or how the person returned. It is immaterial whether the person spent the period inside or outside the country.

A return can still cause trouble. USCIS notes that the way someone came back during the period may create new unlawful presence or other inadmissibility grounds. That is why travel dates should be checked before any trip.

How Unlawful Presence Adds Up and What Doesn’t Count

The exception is narrow.

Because the bars run on days, a few weeks can change which bar applies. Accruing more than 180 days but less than a year of unlawful presence during a single stay in the United States, departing, and again seeking admission within 3 years of that departure can bring in the 3-year bar; accruing 1 year or more during a single stay, then departing or being removed and again seeking admission within 10 years, can move a case to the 10-year bar. Keep records that show when status ended, when you left, and any filings made while in the United States.

The Waiver Requires Extreme Hardship to a Qualifying Relative

Extreme hardship means more than the usual hardship that comes from family separation or relocation, as USCIS guidance on extreme hardship explains.

The applicant must show, by a preponderance of the evidence, that denial would more likely than not cause extreme hardship to a qualifying relative, per USCIS guidance on hardship claims. Then the officer weighs present and future hardship, and if no single hardship is extreme, looks at all of them together.

A finding of extreme hardship permits, but does not require, a favorable exercise of discretion. Certain immigrants may apply for a provisional unlawful presence waiver under 8 C.F.R. § 212.7. The regulation at 8 C.F.R. § 212.7 addresses provisional unlawful presence waivers. A denial must state the specific reasons in writing, under 8 C.F.R. § 103.3.

Next Steps If a Family Member Has Been Told About These Bars

Start by writing down the dates, because the timeline decides which bar applies. You may be researching this for a parent, spouse or child, after a departure they were advised to make or a letter that is hard to follow.

Gather these facts before any conversation:

• The day status ended, or the day a visa expired
• Each departure and return date
• Any prior filings, denials or removal orders
• Whether an asylum application was pending, and whether the person worked during it

Consultations with the office are paid. AG Immigration Law P.A. focuses on removal defense, adjustment of status, family petitions, naturalization, removal of conditions on green cards, waivers and BIA appeals. Adriana Gomez is the lawyer responsible for this page.

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