The Ten-Year Reentry Bar

September 23, 2014 2:27 pm
by David Jakeman

Immigrants come to the United States every day. Many arrive here so they can work and hopefully provide a better life for their families. Others come to study, perform service, share their religious beliefs, or just visit on vacation. Sometimes, immigrants arrive without proper documentation, while others remain here beyond their authorized stay. If the unauthorized period of time spent in the United States exceeds a specific limit, certain consequences will result.

For example, under INA 212(a)(9)(B)(i)(II), “[a]ny alien (other than an alien lawfully admitted for permanent residence) who . . . 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.” This is known as the ten-year bar, meaning the immigrant will be unable to legally reenter the United States for ten years. “Unlawful presence,” as it is used in the INA, applies to aliens who remain in the United States following the expiration of their authorized stay and those who were never legally admitted or paroled.

Who Does the Ten-Year Bar Affect?

The ten-year bar creates a unique problem for many immigrants. For example, thousands of undocumented immigrants marry United States citizens every year. These marriages entitle the undocumented immigrants to apply for legal permanent residency as the immediate relatives of their U.S. citizen spouses. However, in order for them to apply, they must leave the United States and return to their country of origin to begin the application process. Of course, by leaving the United States and then seeking to reenter as immediate relatives, the immigrants trigger the ten year reentry bar.

This same scenario often occurs for those who overstayed a student or temporary work visa and then found a job with an employer willing to help them gain legal permanent residency. The alien would have to return to his home country to apply for the employment-based green card. However, the period of unlawful presence in the United States would prevent him from reentering for ten years.

Exceptions and Waivers

Exceptions to the ten-year bar exist for certain individuals including minors, asylees, battered women and children, victims of a severe form of trafficking in persons, and for those who qualify for a provisional unlawful presence waiver. However, in order to qualify for the waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate that “the refusal of admission . . . would result in extreme hardship to the citizen or lawfully resident spouse or parent” of the applicant. See INA 212(a)(9)(B)(v).

It used to be that the waiver application had to be filed in the immigrant’s home country, which added significant delays and separation from family. However, the United States Department of Homeland Security recently announced a rule change that will allow qualifying immigrants to apply for the waiver before they leave the United States. The new rule change will go into effect in March of this year and should help keep families together longer.