The three- and ten-year unlawful presence bars
A non-LPR who accrues unlawful presence and then departs becomes inadmissible. Unlawful presence of more than 180 days but less than one year, followed by voluntary departure before removal proceedings begin, triggers a 3-year bar. Unlawful presence "for one year or more" triggers a 10-year bar running from "the date of such alien’s departure or removal from the United States." 8 U.S.C. § 1182(a)(9)(B)(i)1
- Departure triggers the bar — Both bars attach only on departure, followed by a later application for admission. The 3-year bar requires a voluntary departure "prior to the commencement of proceedings." 8 U.S.C. § 1182(a)(9)(B)(i)(I)–(II)1
- What counts as unlawful presence — Presence "after the expiration of the period of stay authorized by the Attorney General" or "without being admitted or paroled." 8 U.S.C. § 1182(a)(9)(B)(ii)1
- Time that doesn't count — Time under age 18; time with a bona fide asylum application pending (unless the applicant worked without authorization); family-unity protection; and qualifying battered spouses or children and trafficking victims. 8 U.S.C. § 1182(a)(9)(B)(iii)1
- Tolling — For a lawfully admitted or paroled person who timely filed a nonfrivolous change or extension of status and did not work without authorization, the clause (i)(I) period is tolled during the application, "but not to exceed 120 days." 8 U.S.C. § 1182(a)(9)(B)(iv)1
- Waiver — A waiver is available to the spouse, son, or daughter of a USC or LPR on a showing of "extreme hardship to the citizen or lawfully resident spouse or parent." It is unreviewable. Immigrant-visa applicants can seek a provisional waiver from USCIS before departing. 8 U.S.C. § 1182(a)(9)(B)(v)1; 8 C.F.R. § 212.7(e)2
Practice notes
- The bar period can run while the person is in the United States. Such noncitizens "are not required to reside outside the United States during this period in order to subsequently overcome this ground of inadmissibility." Matter of Duarte-Gonzalez, 28 I&N Dec. 688 (BIA 2023)3
- Don't confuse these bars with the § 1182(a)(9)(C) "permanent" bar. That bar applies to someone who, after more than one year of aggregate unlawful presence or a removal order, "enters or attempts to reenter the United States without being admitted." 8 U.S.C. § 1182(a)(9)(C)(i)1