How To Avoid the Three- and Ten-Year Bars, and Apply for an Unlawful Presence Waiver

Waive the Three-Year and Ten-Year Unlawful Presence Bars with an I-601 or I-601A Waiver

If you have accumulated unlawful presence in the United States, you may face a three-year or ten-year bar penalty from returning after travel abroad.

However, 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 qualify for an unlawful presence waiver.

When approved, an unlawful presence waiver can help you overcome the three-year or ten-year bars and continue your journey toward lawful immigration status without having to wait outside the United States 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-Year and Ten-Year Unlawful Presence Bars

If you have unlawful presence in the United States, leaving the country may trigger a three-year or ten-year bar that prevents you from returning or obtaining a green card during that period.

The Three-Year Bar

You may trigger the three-year unlawful presence bar if you were unlawfully present in the U.S. for more than 180 days (six months) but less than one year and then leave the country. The bar is triggered when you depart, even if you leave for a green card interview at a U.S. consulate.

The Ten-Year Bar

You may trigger the ten-year unlawful presence bar if you were unlawfully present in the U.S. for one year or more and then leave the country. Unless you qualify for and receive an approved waiver, you may be unable to return or obtain an immigrant visa for ten years.

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?

If you qualify, an approved I-601 waiver or I-601A provisional waiver may allow you to overcome the three-year or ten-year unlawful presence bar and continue your immigration process.

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 continue with the rest of the green card application, and you attend the interview at the Consulate later.

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.

Unlawful Presence Waiver Success Story: Overcoming the Ten-Year Bar

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