Unlawful presence, the 3- and 10-year bars and the I-601A waiver

How unlawful presence is counted

The clock generally starts when you remain past the date on your I-94 record or when you enter without being inspected and admitted or paroled. Some periods do not count. Time before your 18th birthday generally does not count, and certain pending applications, such as a timely filed bona fide asylum application or a properly filed adjustment of status application, can stop accrual while they remain pending.

Unlawful presence is different from being out of status. A person can violate status without accruing unlawful presence, depending on how they were admitted and whether USCIS or an immigration judge has made a finding. These distinctions decide whether a bar applies, so build an exact timeline of every entry, exit and filing.

The three-year, ten-year and permanent bars

The three-year bar applies to someone who accrued more than 180 days but less than one year of unlawful presence in a single stay and then departed. The ten-year bar applies to someone who accrued one year or more and then departed. Both bars are triggered by the departure itself, which is why a trip abroad for a visa interview can be the moment the problem begins.

A separate and harsher bar applies to people who, after more than one year of total unlawful presence or after a removal order, enter or try to enter again without being admitted. That bar is often called the permanent bar. The I-601A waiver does not cover it, and relief generally requires remaining outside the United States for years before requesting permission to reapply.

The provisional waiver on Form I-601A

The I-601A lets an eligible applicant who is physically present in the United States request a waiver of the three-year or ten-year bar before leaving for the immigrant visa interview. You must show that refusing your admission would cause extreme hardship to a US citizen or permanent resident spouse or parent. Hardship to you or to your children alone is not enough, although its effect on the qualifying relative can be considered.

Extreme hardship is evaluated from the whole picture, including medical, financial, family, educational and country-condition factors. Strong applications explain how each factor affects the qualifying relative, with evidence such as medical records, financial statements and expert letters.

• The waiver only covers unlawful presence, not other grounds such as fraud or certain crimes.
• An approved I-601A takes effect only when you leave and the consular officer confirms no other ground applies.
• If another ground is found at the interview, the provisional waiver can be revoked and a different waiver may be needed.