The 3 and 10 years bar to entry relate to individuals who present in the U.S. on a temporary status (usually a non-immigrant visa), but remained in the country beyond the authorized period of stay listed on their I-94. Such individuals may be barred from coming back to the U.S. for either three or ten years, depending on how long was their stay beyond the date on their I-94. These bars are provided under Sections 212(a)(9)(i) and 212(a)(9)(ii) of the Immigration and Nationality Act (INA).
As of April 1, 1997, remaining in the U.S. for more than 180 days after the expiration date on I-94, and then leaving the U.S. triggers the 3 year bar, while remaining for more than 364 days and then leaving the U.S. triggers the 10 year bar. Note that the bar is triggered only when the individual leaves the U.S. Finally, a foreign national who is a repeat abuser of U.S. immigration laws, in that he or she stays beyond the period of authorized stay and continues to enter and leave the U.S. is permanently barred from reentering the country.
ARE GREEN CARD APPLICANTS SUBJECT TO THESE BARS?
Note that a foreign national must leave the U.S. to even trigger the 3 and 10 year bars. Therefore, if you are allowed to apply for a green card while you are in the U.S., that is, you do not have to travel abroad and apply for a visa at a U.S. consulate through consular processing, then you will not have to leave the U.S. and the bars will not apply to you. These include applicants for a family-based green card applying as a spouse, parent, or child (under 21 years of age) of a U.S. citizen who entered on a valid visa but overstayed the visa.
Note, however, that adult children and siblings of U.S. citizens, and spouses and children of legal permanent residents must go abroad and apply for a visa at the U.S. consulate. This exit of the country may trigger 3 and 10 year bar.
If you find that you are subect to these bars, you may apply for what is known as a I-601 waiver to the 3 and 10 years bars to reentry. Note that this waiver is only available if the petitioning alien can demonstrate extreme hardship to his or her spouse or parent who is a citizen or a permanent resident. A hardship to the foreign national or his or her children is not a factor in adjudicating this waiver.
Children under the age of 18 are exempt from the 3 and 10 years bars to reentry but are not exempt from the permanent bar.
APPLYING FOR I-601 WAIVER
Unless special circumstances exist, you must leave the U.S. to apply for a I-601 waiver at a U.S. consulate. Our law firm has assisted several foreign nationals in applying for this waiver and will be happy to talk to you about your case through a consultation. Feel free to email us at firstname.lastname@example.org or call us at 1-919-932-4593 to talk about your waiver situation.