What Is the 10-Year Bar for Unlawful Presence?

What Is the 10-Year Bar for Unlawful Presence?

The 10-year bar for unlawful presence refers to a provision in U.S. immigration law that bans noncitizens from returning to the United States for 10 years if they have accrued more than one year of unlawful presence in the country. Unlawful presence means staying in the U.S. without legal status or overstaying the period authorized by a visa or other entry document.

What Triggers the 10-Year Bar

The specific requirements to trigger the 10-year bar under section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act (INA) are:

• The noncitizen accrued one year or more of unlawful presence in a single stay in the United States
• The noncitizen departed or was removed from the United States
• The noncitizen seeks admission to the U.S. before 10 years have passed since their departure or removal

The 10-year bar is triggered by departing the U.S. after accruing the requisite unlawful presence. It applies whether the departure was voluntary or through removal proceedings [1].

Calculating Unlawful Presence

When calculating unlawful presence for purposes of the 10-year bar, only time spent unlawfully in the U.S. after April 1, 1997 is counted. Periods of unlawful presence prior to that date are not included [2].

Unlawful presence must accrue during a single stay in the country. Multiple periods from separate trips cannot be combined to reach the 1-year threshold [8].

There are some exceptions where time present in the U.S. does not count as unlawful presence. This includes:

• While under age 18
• With a pending asylum application until there is a final denial
• During authorized stays or under certain lawful statuses

Detailed guidance on calculating unlawful presence is available in the U.S. Citizenship and Immigration Services Policy Manual [1].

Seeking Admission and the 10-Year Bar

“Seeking admission” refers to a noncitizen:

• Applying for admission at a port of entry
• Applying for an immigrant or nonimmigrant visa
• Applying to adjust status to a lawful permanent resident

Seeking admission in any of these ways before 10 years have passed since departing the U.S. triggers the 10-year bar. The bar applies only at the time the noncitizen seeks admission, not during the whole 10 year period [1].

Returning to the U.S. Before 10 Years

The 10-year bar does not prohibit a noncitizen from returning to and remaining in the U.S. while the bar is running. But they remain inadmissible and cannot seek lawful status without a waiver [6].

If an individual reenters or stays in the U.S. unlawfully during the 10 years, they do not extend the bar. The 10 years continues running from the original date of departure [1].

Waivers for the 10-Year Bar

Noncitizens who trigger the 10-year bar may be eligible for a waiver to overcome their inadmissibility. Common waiver options include [3]:

• I-601 Nonimmigrant Waiver – For nonimmigrant visa applicants
• I-601 Immigrant Waiver – For family-based and some employment-based green card applicants
• I-601A Provisional Unlawful Presence Waiver – For spouses, children, and parents of U.S. citizens and permanent residents

To qualify for a waiver, applicants generally must prove that refusing their admission would cause extreme hardship to a qualifying U.S. citizen or permanent resident relative. Other eligibility criteria also apply.

Individuals who return to the U.S. unlawfully after being ordered removed and accruing 1+ years of unlawful presence may be permanently inadmissible. They require special waivers and must remain outside the U.S. for at least 10 years before applying [13].

Comparison to 3-Year Bar

The 10-year bar is often discussed alongside the 3-year bar, which has similar but distinct requirements:

• 3-Year Bar – For 180+ days but less than 1 year of unlawful presence
• 10-Year Bar – For 1+ years of unlawful presence

Both bars are triggered by departure from the U.S. and can only be overcome through approved waivers [4].

Policy Issues with 10-Year Bar

While the 10-year bar aims to deter illegal immigration, experts argue that it has had unintended consequences:

• Increased overstays since individuals fear leaving and triggering bars
• Prolonged family separation while bars run abroad
• Reduced access to legal immigration pathways
• Negative impacts to employers, communities, and economy

Potential reforms that have been suggested include [12]:

• Shortening the length of bars
• Broadening waiver eligibility
• Allowing bars to run in the U.S. rather than abroad
• Repealing bars or providing alternative penalties

Changes to unlawful presence bars have received bipartisan support in Congress but not yet been enacted.

Conclusion

The 10-year bar for unlawful presence prevents noncitizens who overstay visas or remain in the U.S. without status for over a year from returning for the next decade. While waivers are available in some cases, the bar continues to pose challenges for immigrants seeking legal status. Understanding the policy’s specifics and navigating its complexities remains vital.

Resources

Related Articles:

• Consequences of Unlawful Presence in the U.S.—Three– and Ten-Year Time Bars
• Unlawful Presence Bars and Waivers

USCIS Guidance:

• Chapter 6 – Effect of Seeking Admission Following Accrual of Unlawful Presence

Videos:

• Unlawful Presence Bars Explained