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The Three And Ten Year Bars Revisited: When It Helps To Be Put Into Removal Proceedings

by James D. Eiss and Danielle Rizzo

Section 301 of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") of 1996 created bars to admissibility for aliens who were "unlawfully present" in the U.S.[1] Under INA 212(a)(9)(B)(i)(I), aliens who have been "unlawfully present" in the United States for more than 180 but less than 365 days, and then depart from the U.S., are inadmissible for the next three years. Under INA 212(a)(9)(B)(i)(II), aliens who are "unlawfully present" in the United States for more than 365 days, and then depart from the U.S., are inadmissible for the next ten years.

The Difference Between Being "Out of Status" and Acquiring "Unlawful Presence"

There is a critical difference between being "out of status" and being "unlawfully present." There are innumerable ways to go out of status. Any violation of nonimmigrant status puts the alien "out of status." For example, if an alien is in a nonimmigrant status, such as H-1B or TN, that requires him to work exclusively for the petitioning employer, and he either works for an additional employer or changes employers all together without prior authorization from USCIS, then he goes out of status upon the first such violation. An alien who ceases employment with the petitioning employer (other than an H-1B employee who is benched with pay) is also out of status. The dependent child of a nonimmigrant who turns twenty-one (and is therefore no longer eligible for dependent status as a "child"), is out of status.

"Unlawful presence," on the other hand, has a very specific meaning. An alien begins to accrue unlawful presence only when:

  1. her I-94 has expired and she failed to timely file a non-frivolous request for extension or change of nonimmigrant status.

    If she has timely filed an extension of stay or change of status, then she does not accrue any unlawful presence, even after her I-94 expires, for as long as the petition remains pending. If that petition is ultimately approved, then she never acquires any unlawful presence. If it is ultimately denied, then she accrues unlawful presence starting on the date the denial notice is issued; or

  2. USCIS or an Immigration Judge finds that the alien has violated her status.[2]

For certain nonimmigrant statuses (F-1 and J-1), I-94s are endorsed "D/S," meaning "duration of status." Since there is no specific expiration date, aliens holding "D/S" I-94 cards do not begin to accrue unlawful presence unless USCIS makes an affirmative finding that the alien has violated his or her status.[3] For example, if an alien holding F-1 status with an I-94 marked D/S applies for a change of status to H-1B, and the change of status is denied because USCIS finds that the alien has violated his F-1 status, then the alien begins to accrue unlawful presence upon the denial of his change of status application, even though the I-94 never "expired." Similarly, if an Immigration Judge makes a determination of a status violation in a removal proceeding of an F-1 or J-1 nonimmigrant who is admitted D/S, unlawful presence begins to accrue even though the I-94 never "expired."

Any nonimmigrant, no matter what his status, who is found by USCIS or an Immigration Judge to have violated his status, begins to accrue unlawful presence upon the date of that finding, even if his I-94 has not expired. Again, USCIS would generally only make such a finding in connection with an application for a benefit, and an Immigration Judge would make this determination in proceedings.

Finally, it is important to note that "unlawful presence" is only relevant to accrual of time toward the three and ten year bars to admission. It is not a ground for removal from the U.S. (although people who are unlawfully present are also out of status, which is a ground for removal). Individuals do not trigger the bar to admission until they actually leave the United States.

When Unlawful Presence Does NOT Accrue

There are certain exceptions to the unlawful presence rules. Section 301(b)(3) of the IIRIRA says that unlawful presence accruing prior to April 1, 1997 does not count toward the three- or ten-year bars. In addition, INA 212(a)(9)(B)(iii) expressly excludes minors, asylees, and beneficiaries of family unity protection from accruing unlawful presence. For the purpose of the bars, "minors" are individuals under age 18. A minor who is unlawfully present while under age 18 does not accrue any time toward the 3 or 10 year bars, but immediately upon turning 18 he begins to accrue unlawful presence toward the bars.

Unlawful presence is "tolled" (does not accrue) during the pendency of a timely-filed, nonfrivolous petition to change or extend nonimmigrant status. In addition, the alien must not have worked without authorization before the change of status or extension of stay was filed, or while it was pending[4]. A petition is considered timely-filed if it is filed prior to expiration of the alien's previous I-94 card.[5] It is "nonfrivolous" if it has an arguable basis in law or fact. An example of a frivolous filing would be a petition to change to H-1B status when the beneficiary has no education or work experience.

If that timely-filed petition is ultimately approved by USCIS, it will be back-dated to when the previous I-94 expired and no unlawful presence will accrue. If the petition is ultimately denied, unlawful presence accrues from the date of denial. (If, however, a timely-filed application is denied because it was frivolous or because the alien engaged in unauthorized employment, any time after the I-94 expiration date will be considered "unlawful presence". Or, in the case of an alien admitted D/S, unlawful presence begins to accrue on the date of denial.

How the Bars Affect People

Aliens who accrue the three or ten year bars are in a sticky situation. Because these aliens are out of status, they are not eligible to reenter a lawful nonimmigrant status by filing for a change of status or extension of stay. 8 CFR 214.1(c)(4) and 8 CFR 248.1(b) require, respectively, that to extend or change nonimmigrant statuses, one must have maintained the previously authorized status. But on the other hand, if these individuals leave the United States, they are ineligible to reenter for three or ten years. This affects not only people who wish to remain in nonimmigrant status, but also those who qualify for permanent residency. An alien who is subject to the three or ten year bars cannot obtain an immigrant visa using consular processing unless he also obtains a waiver of his inadmissibility, because his departure from the U.S. will trigger the bar. Adjustment of status may be the best option for such individuals.

;But on the other hand, adjustment of status may be a problem for individuals subject to the three and ten year bars as well. As per INA 245(c)(2), an applicant is ineligible for adjustment of status if she "is in unlawful immigration status on the date of filing the application for adjustment of status or ... has failed ... to maintain continuously a lawful status since entry into the United States." However, this does not apply to spouses of U.S. citizens, whether they are applying for permanent residence based on the marriage or based on employment. Also, under INA 245(k), an employment-based applicant for adjustment of status is forgiven up to 180 days of time spent out of status. If an individual fits into one of these exceptions to adjustment ineligibility, then she can adjust status even if she is subject to the three or ten year bar. If an alien is both (1) subject to the three or ten year bar and (2) ineligible to adjust status, then her only option for obtaining an immigrant visa is to apply using consular processing and either get a waiver of the bar from the consulate, or wait abroad for the three or ten years to run.

It should be noted for the benefit of those who are eligible to file for adjustment of status, that the filing of an adjustment of status application tolls any further accrual of unlawful presence. It is also possible to obtain a nonimmigrant waiver of inadmissibility, as outlined below.

Relief From the Bars

There are three ways an individual can find relief from the bars. The first, mentioned above, is to obtain a waiver under INA 212(a)(9)(B)(v). The waiver is limited to immigrants who are, "the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence," and can only be issued if the alien can establish that her being barred from the U.S. would result in "extreme hardship" to the US citizen or LPR relative. "Extreme hardship" is a very high standard to meet.

The second form of relief is to obtain a nonimmigrant waiver. Under INA 212(d)(3), nonimmigrants can apply for waivers of inadmissibility, and on that ground can be granted visas or admission to the U.S. For Canadian citizens, who are visa exempt, a nonimmigrant waiver is applied for on form I-192 through a Customs and Border Patrol agent. For citizens of other countries, a nonimmigrant waiver is applied for at a U.S. consulate in conjunction with a nonimmigrant visa application and no specific form is required. The standard of proof for a nonimmigrant waiver is much easier to meet than for an immigrant waiver. The following factors are considered in granting a nonimmigrant waiver:

  1. Risk of harm to society if the applicant is admitted.
  2. The seriousness of the applicant’s prior immigration law, or criminal law, violations, if any.
  3. The nature of the applicant’s reasons for wishing to enter the United States.[6]

While a nonimmigrant waiver is easier to obtain, the drawback is that it is temporary. It is valid for a five year period but only authorizes nonimmigrant admissions. It does not authorize an alien to apply for permanent residence. Only the immigrant waiver can accomplish that.

The third and final form of relief is permitted based on the wording of INA 212(a)(9)(B)(i), which imposes the bars. It states:

Any alien (other than an alien lawfully admitted for permanent residence) who—

  1. was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)[sic]) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or
  2. has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States, is inadmissible.

[Emphasis added]. While those subject to the ten year bar are flat-out inadmissible for ten years after departing from the U.S., the Act says that those who are subject to the three year bar are only inadmissible if they fail to depart "prior to the commencement of proceedings under section 235(b)(1) or section 240." This language has been interpreted to mean that an alien who is subject to the three year, and who is granted "voluntary departure" by an Immigration Judge in removal proceedings, is not subject to the bar upon readmission to the United States.

In practice, individuals who are subject to the three year bar are not ordinarily in removal proceedings on that ground alone. (While they are technically removable from the United States, they would be a low enforcement priority for Immigration and Customs Enforcement, or ICE). In order to be granted voluntary departure, they would need to have themselves placed voluntarily into removal proceedings. In some jurisdictions this is impossible to do; it all depends on the attitude of the local ICE office. However, aliens are not restricted to being placed into proceedings by their local ICE office; they can have themselves placed into proceedings anywhere in the U.S. In the past year, our office has helped two aliens in this situation to be placed into proceedings so that they could get voluntary departure. Both lived in California and were placed into proceedings by the ICE office in Buffalo, NY. Several member attorneys of the American Immigration Lawyers Association report that their local ICE offices will not put an alien into removal proceedings in this situation.

An individual who is granted voluntary departure is told by the Immigration Judge how much time (up to 120 days) he has to depart the U.S. Aliens who are subject to the three year bar and granted voluntary departure must depart within the specified time period. Once they leave the U.S., the three year bar is effectively erased, and they can be immediately readmitted if they otherwise qualify for admission to the U.S. Practically speaking, in many instances this would require getting a new petition approved by USCIS and/or getting a new visa from a U.S. consulate abroad. Again, this option is not available for those who are subject to the ten year bar.

Aliens who are in this situation should consult with a competent immigration attorney prior to having themselves placed voluntarily in proceedings. There are many issues which could complicate the matter.


1 P.L. 104-208, Division C.

2 “INS Advises on Unlawful Presence,” Paul Virtue Memorandum, 09/19/1997.

3 “No Section 212 Unlawful Presence for Some Departures,” Michael A. Pearson Memorandum, 03/03/2000. AILA Doc. No. 00030774.

4 Id.

5 See 8 CFR § 214.1(c)(4) regarding timely filing of extensions of stay, and 8 CFR § 248.1(b) regarding timely filing of changes of status.

6 See Matter of Hranka, 16 I &N Dec. 491 (BIA 1978).

About The Author

James D. Eiss, Esq. is a former INS officer who has been practicing immigration law in the Buffalo, NY area for the past 16 years.

Danielle Rizzo is a third year law student and has been a paralegal at the Law Offices of James D. Eiss for the past 4 years.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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