The Immigration “Bars” & Unlawful Presence

What is Unlawful Presence?

Many immigrants come to the United States by illegally crossing the border.  Others are issued visas and overstay in the U.S. past their authorized date.  These situations can lead to accrual of unlawful presence in the United States.  Unlawful presence can accrue to an individual if he or she remains in the United States after the expiration of a period of authorized stay, or if he or she is present in the United States without being admitted or paroled.  This is a very general statement, and “unlawful presence” is a term of art that is complicated and needs careful scrutiny.  For example, there are many exceptions to accruing unlawful presence, such as an asylum applicant, deferred action, certain non-immigrant visas, and minors.  It is best to check with your attorney to determine if you have accrued unlawful presence.

The Bars

United States immigration laws provide for a certain “bar,” depending on calculate how much unlawful presence an individual has accrued before they left the country, and whether they have reentered afterwards.  A “bar” prevents the individual from obtaining certain U.S. immigration benefits, including visas and adjustments of status.  The period of time that the immigrant is not eligible for immigration benefits depends on how much unlawful presence they have accrued, and they must usually wait outside of the country, usually in their home country, until the “bar” time passes.  Of course, there are exceptions to this, too, depending on what type of bar, and how and when you reentered.

The current law applies to unlawful presence after April 1, 1997.  Below are the three most common “bars” relating to unlawful presence.

The Three-Year Bar

If the individual has been present in the United States for 180 days, but less than one year, they will trigger the three-year bar upon leaving the U.S.   The unlawful presence must be continuous and uninterrupted.

For example, if the individual crosses the border illegally into the U.S., stays a month, and goes back, then re-enters the U.S. illegally again for 179 days, and exits back to their home country, he or she is not subject to the three-year bar, or any other bar.

There is a waiver available for this bar, if you qualify.

The Ten-Year Bar

If the individual has been present in the United States for one year or more, they will receive the ten-year bar.  Similar to the three-year bar, the unlawful presence must be continuous and uninterrupted.

There is also a waiver available for this bar, if you qualify.

The [Dreaded] Permanent Bar

 This bar applies to individuals who accrue one year or more of unlawful presence, and then re-enter or attempt to re-enter the country illegally.   Unlike the other two bars, the unlawful presence does not have to continuous.  The total number of days present in the U.S. unlawfully is counted.

Likewise, the permanent bar is applied to individuals who are ordered removed from the United States, and then re-enter or attempt to re-enter illegally.

An individual with the permanent bar must wait outside of the United States for ten years before applying for any immigration benefits, just like the ten-year bar.

The difference is that there is no waiver available for the permanent bar.  There is no way around it.  In addition, once the ten years have elapsed, the individual must apply for a separate waiver from the government for permission before they can apply for any benefits, like permanent residency.