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

A person can waive their unlawful presence in the U.S. and the three or ten year bar after they obtain an approved I-601 or I-601A waiver by the immigration service.

An individual who is married to a U.S. citizen or lawful permanent resident (LPR), or has a U.S. citizen or LPR parent, may apply for a waiver of the three and ten year bars. The waiver, when approved, allows them to avoid the unlawful presence bar and not have to remain outside of the U.S. for three or ten years. In order to be granted the waiver, the applicant must prove that his or her US citizen or LPR spouse or parent will suffer ‘Extreme Hardship’ if the waiver is not granted.

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. The bar is triggered by leaving the U.S., even if it is to go abroad for a green card interview at a U.S. consulate. People who entered the U.S. illegally, are undocumented or who have overstayed their visas are considered as being “unlawfully present” in the U.S. by the immigration service.

The ten year bar to re-entry into the U.S.: A ten year bar is given to a person who has been unlawfully present in the United States for a total period of one year or more, who departs the U.S. voluntarily. It is important to note that 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?

A person can ‘waive’ their unlawful presence and the three or ten year bar by filing either a I-601 ‘standard’ waiver or a I-601A provisional waiver, if they 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 for a long time while their unlawful presence waiver is being processed at the U.S. consulate.

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, while the I-601-A application is filed within the U.S. and before the green card application is filed 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, and then have to remain outside the U.S. until the waiver application is approved. This can take many months and in some cases, years.

This I-601 waiver can also be used to waive both the unlawful presence bar and criminal convictions.

The provisional I-601A waiver process:

As mentioned earlier, certain people 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 the grant of the I-601A waiver, the rest of the green card application would be completed and the interview at the Consulate is scheduled.

Some limitations of the I-601A waiver are that it only waives the unlawful presence bar, and cannot be used to waive criminal convictions and other grounds of inadmissibility. This means that if you have criminal convictions or have used fake or fraudulent documents for an immigration benefit or to enter the U.S., this waiver would not solve these problems.

Proving Extreme Hardship to Waive Unlawful Presence

To waive unlawful presence for the I-601 or I-601A applications, you will need to prove to the immigration service that the U.S. citizen or Legal Permanent Resident spouse will suffer ‘extreme hardship’ if the waiver is not granted. The immigration service will look at certain things including health or medical conditions, financial, educational or other considerations.

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, and what you will be able to prove to the immigration service.