Many undocumented immigrants encounter barriers that make securing lawful status difficult; among these barriers are the three- and ten-year bars.

While individuals may meet the requirements to adjust their legal status, they’re often required to leave the country and re-enter with a valid visa to have their status adjusted. However, the three- and ten-year bars provisions prohibit many people who entered the United States unlawfully from re-entry for a period of time, even if there are other legal paths they could take to secure lawful status.

Understandably, this creates a dilemma that can cause undocumented people to stay in the U.S. for decades, rather than face being separated from their families. Although the three- and ten-year bars were created as a punitive measure, the provisions actually incentivize many to stay in the U.S. unlawfully.

Fortunately, the three- and ten-year bars may be waived by the Secretary of Homeland Security under specific circumstances. Here’s a closer look at the three- and ten-year bars provisions and the eligibility requirements for the provisional unlawful presence waiver.

What Are the Three- and Ten-Year Bars?

The three- and ten-year bars, which are included in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, prevent undocumented immigrants (those who entered the U.S. without inspection or who overstayed a period of authorized admission) who leave the U.S. from re-entering the country for a specific period of time.

If an individual has been in the U.S. unlawfully for more than 180 days, but less than a year, they’re barred from re-entry for three years. If an individual has been in the U.S. unlawfully for more than a year, they’re banned from re-entry for ten years.

Under the family-based immigration system, U.S. citizens and legal permanent residents may petition for green cards on behalf of certain family members. In most cases, if the applicant is an immediate relative (a spouse, parent, or child under the age of 21) and they entered the country with a valid visa, they’ll be able to get a green card through a process called “adjustment of status.”

The I601a Provisional Unlawful Presence Waiver & Eligibility Requirements

If the individual can prove leaving the country would create “extreme hardship” for the U.S. citizen or legal permanent resident, among other requirements, they can apply for an I601a provisional unlawful presence waiver. This waiver allows the applicant to leave the country to get their visa without triggering the reentry bars. Traditionally, it could take up to a year or longer to receive a waiver, which created a lot of uncertainty and stress for those who had to leave the country, as they had no idea whether they would be allowed back in.

In 2016, a new rule expanded the eligibility requirements for the I-601a provisional waiver to anyone who’s eligible to apply for a waiver under the Immigration and Nationality Act, including:

• Those going through the employment-based immigration system
• Those going through the family-based immigration system
• The who are eligible for the diversity visa lottery
• Any other immigrant classification that may be eligible for a provisional waiver, as long as they can prove extreme hardship to a U.S. citizen or legal permanent resident spouse or parent

It’s important to note that approval of the I-601a provisional waiver doesn’t guarantee an individual will be issued a visa and be allowed to re-enter the U.S. legally; they may still be found inadmissible for other reasons. If found inadmissible, the I601a waiver approval would be revoked.

What’s Considered Extreme Hardship for an I-601a Provisional Waiver?

Extreme hardship is defined as a hardship that’s greater than what a relative would experience under normal circumstances if the immigrating individual is unable to enter or continue residing in the U.S. It’s not enough to say that the U.S. relative would miss the person, as this would be expected in any type of separation.

In the past, extreme hardship wasn’t well defined, nor was the standard applied consistently. However, in 2016, new guidance was released that clarified the steps for an extreme hardship waiver and provided a list of factors that the USCIS may consider when making a decision. During the adjudication process, there are two scenarios the USCIS and I-601a waiver applicant must consider:

• If the family member remains in the U.S. and the applicant remains abroad, extreme hardship may occur. One example of this is if the applicant is the primary caretaker for an ill family member living in the U.S.
• If the family member leaves the U.S. to live abroad with the applicant, extreme hardship may occur. For example, depending on the location, the family member and/or the applicant may be subject to discrimination, lack of medical care, or other factors.

The five categories that are considered when determining extreme hardship, include:

• Family ties
• Social and cultural issues
• Economic issues
• Health conditions and care
• Country conditions

In addition, the guidance from 2016 includes examples of different types of hardships that might fall into each of these categories, such as ostracism, fear of persecution, or lack of language skills, to name a few.

Get Legal Assistance for Your I601 Waiver

Although the new regulations have resolved some of the issues created by the three- and ten-year bars, the complexity of immigration law and the extreme hardship standards continue to create uncertainty for many families. If you have (or may be subject to) a bar to re-enter the United States, it’s important to consult with an experienced immigration attorney. To discuss your case, please contact us today at 916-613-3553 or email us at info@ranchodlaw.com.