How To Avoid The Three and Ten Year Bars, and Waive Unlawful Presence

You can waive your unlawful presence in the U.S. and the three- or ten-year bar after you obtain an I-601 or I-601A waiver from the US Citizenship and Immigration service (USCIS).

If you are married to a U.S. citizen or lawful permanent resident (LPR), or have a U.S. citizen or LPR parent, you may apply for a waiver of the three and ten year bars. The waiver, when approved, allows you to avoid the unlawful presence bar. This means that you will not have to remain outside of the U.S. for three or ten years.

To get a waiver approval, you must show the USCIS that your US citizen or LPR spouse or parent will suffer ‘Extreme Hardship’ if the waiver is not granted.

What is Unlawful Presence?

You are unlawfully present in the US if you entered the country illegally, are undocumented or who have overstayed your visa.

The Three- and Ten-Year Unlawful Presence Bars

The three-year bar to re-entry into the U.S.: A person who has been unlawfully present in the United States for a continuous period of more than 180 days (6 months), but less than one year, and who voluntarily departs the U.S. faces a 3-year bar from the U.S. when they try to obtain a green card or legal permanent residency.

You trigger the bar by leaving the U.S., even if it is to go abroad for a green card interview at a U.S. consulate.

The ten-year bar to re-entry into the U.S.: you can trigger a ten-year bar if you have been unlawfully present in the United States for a total period of one year or more and leave the U.S. voluntarily.

The Immigration Service adds up all time in the US without lawful presence, including periods from different years and visits.

Which Waiver Application to Use – I-601 or I-601A Waiver?

You can ‘waive’ your unlawful presence and the three- or ten-year bar with an approved I-601 ‘standard’ waiver or a I-601A provisional waiver, if you qualify.

Many people living in the U.S. like to use the I-601A waiver (if their case is suitable for this waiver) because they do not have to travel abroad and remain separated from their family or jobs while their unlawful presence waiver is being processed.

The main difference between the standard I-601 and the provisional I-601A application is that a person will usually file the I-601 application outside of the U.S. after their green card application has been denied for unlawful presence. The I-601-A application is filed within the U.S. and before the green card interview at the Consulate.

The standard I-601 waiver process:

People who entered the US illegally, who cannot prove legal entry, or valid legal status often have to apply for a green card at a consulate abroad. After the green card interview at the U.S. consulate, the green card application is denied for unlawful presence, and they are told to file the I-601 waiver. They then have to remain outside the U.S. until the waiver application is approved. This can take many months or years.

This I-601 waiver can also be used to waive both the unlawful presence bar, and other inadmissibility problems including criminal convictions or misrepresentation.

The provisional I-601A waiver process:

You can apply to for an I-601A waiver to avoid the 3- or 10-year unlawful presence bar while in the US and before traveling abroad for the green card interview at a U.S. consulate abroad. After your I-601A waiver is approved, we complete the rest of the green card application, and you attend the interview at the Consulate.

The I-601A waiver only waives the unlawful presence bar. This waiver does not waive your criminal convictions or use of fraudulent documents for an immigration benefit or to enter the U.S.

Which Waiver Should You Use?

It depends on your own personal situation.  Please remember that every case is different and that your immigration and criminal history also affect your case and what happens. It is important that you speak to an experienced and licensed immigration attorney before you decide which waiver you will need to file. We have helped many people with both waivers and would love to help you too. Contact us to discuss your case.

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