On April 1, 1997 Congress changed the immigration law to punish foreign-born individuals who decide to stay in the country without documentation, such as a visa, green card, or other forms of permission to legally stay in the country. The penalty that Congress created to punish this sin is known as the three and ten year bars. The penalty is imposed based on the amount of continuous unlawful presence a foreign individual manages to accumulate in the United States. For instance, if a person accumulates more than six months of continuous unlawful presence in the country, that person can be barred from returning to the United States for a total of three years. If the unlawful presence is for twelve or more continuous months, that person can be barred from returning to the country for a total of ten years.
It's important to know, however, that this time bar does not apply to everyone who has lived in the United States unlawfully. The three and ten year bars only apply to a person who first was in the United States and who entered with or without inspection, leaves to travel oversees voluntarily for any reason, and is attempting to return to the country to take advantage of a possible change in his/her immigration status.
While it does not apply to individuals who are already in the United States lawfully or who entered with inspection and are the immediate relatives of a U.S. citizen because of the availability of the adjustment of status procedure, for individuals who entered the country without inspection, despite already being here with no need to leave, to get their green cards, they must leave the country and apply for their immigrant visa while overseas through a U.S consulate because they are not eligible to take advantage of the adjustment of status procedure under current immigration law. In other words, the 3- and 10-year bars do not take effect if the person never leaves the United States after accruing the six to twelve months of unlawful presence; however, if that person decides to remain in the country and is unable to adjust his/her status, that person cannot become legalized under the current immigration law.
While certain waivers are available to some individuals who are not eligible to adjust their status while in the United States, such as the husband and wife of a U.S citizen, the child of a U.S. citizen, the child of a permanent resident, those waivers for the most part are extremely difficult to obtain. To successfully obtain a waiver, an eligible individual would have to convincingly demonstrate that if that person is deported, the U.S. spouse or parent would suffer extreme hardship. Under immigration law, this is a very tough burden to satisfy.
Nonetheless, if you are an individual who may be impacted by this provision in the immigration law, you should be aware of a few exceptions that might apply to you:
1. The accumulation of unlawful presence only apply after April 1, 1997, the date the law went into effect; 2. Unlawful presence when a person was a minor does not count to trigger the three and ten year bars; 3. The unlawful presence has to be continuous for either six or twelve months; 4. It does not apply to battered spouses and children if there is substantial connection between the unlawful presence and the abuse; 5. It does not apply to certain individuals with "bona fide" asylum applications pending unless the person was employed without authorization during that time; 6. It does not apply to lawful permanent residents seeking readmission to the country.
So, if you are residing in the United States and are eligible to adjust your status, it may not be in your best interest to leave the country under any circumstances to avoid being subjected to the three or ten year bars while you are oversees. You should stay here, file your application, and wait until your application is approved and you have your green card in your hands, then you can travel outside of the country with peace of mind. If you are residing in the United States unlawfully but are not eligible to adjust your status, your best option at this time would be to consult an immigration attorney to help you explore the possibility of you being able to return to the United States in the event that you were to leave to go through consular processing, or are unsuccessful with a waiver application.
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