What is the Ten-Year Bar?

Welcome back to Kreizelman Burton & Associates’ series on immigration terms and abbreviations. I’m Erin Cobb, and we’re going to be talking about the 10-year bar. What it is, when it applies, and what you can do about it will be all be discussed in today’s post. 

So, who does the 10-year bar apply to? The simplest way to think about it is that it applies to someone who is here without status for more than one year. However, that is oversimplifying things. Really, it applies to someone who is here and has accrued unlawful presence for more than one year. Now, unlawful presence is a special word with a special meaning. 

Congress and immigration services have set out some special situations where someone might be here without any status, but sill does not accrue unlawful presence. Some of the most common of these situations include:

• You have DACA
• You have a pending asylum application, except if you’ve worked without permission
• You’re under 18, no matter your status
• You’re in valid visa status 
• You’ve filed to extend or change your visa status, such as a visitor to a student, and are still waiting on a decision
• Your visa is one that is valid for the duration of status or D/S, like some F, J, or M visas

If you are in the U.S. without status, and none of the situations apply to you, you are occurring unlawful presence. If you have more than one year of unlawful presence and depart the country, you will have to wait outside for 10 years before you can even apply to come back in. There is, however, a waiver available that can prevent this 10-year bar from blocking you. If you can show that your permanent resident or U.S. citizen spouse or parent would suffer extreme hardships if you are not permitted to return immediately. This waiver is known by a couple of names. Commonly, we refer to it as an unlawful presence waiver or an I-601 waiver, as that is the form that is used for it.

There is another waiver that can help you lessen the penalties and time you’d have to spend outside the U.S. This waiver is called a provisional waiver. This is a great option for many because you can apply for the waiver before leaving the country. The standard is the same as the I-601 waiver, but it takes out some of the risk and length of time you’d have to wait outside the country prior to applying to enter again. 

While there are additional bars that prevent immigrants from entering the country, this is the most common. As you can tell, this is all quite complicated, and the effects can be both life-changing and long-lasting. So, if you are thinking about departing the U.S. to apply for your immigrant visa, please be sure to talk to an immigration attorney first to have everything in place before you go. This can help you complete the immigration process faster once you can re-enter the country.

As always, if you or someone you know is in need of an immigration lawyer, please do not hesitate to contact the attorneys at Kriezwelman Burton & Associates. We are here to help you navigate the complex world of immigration.