We get this question a lot at Cardinal Immigration. The short answer is there is little you can do to correct this situation and obtain your green card. It’s an unfortunate and glaring hole in our immigration code if you ask us. Here’s the problem:
The Three and Ten-Year Bars
The three and ten-year bars were enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) in 1996 and was incorporated into the Immigration and Nationality Act (INA). The law basically states that when a visa holder remains in the united states after the expiration of his or her visa (also known as an “unlawful presence”), upon departure from the US, he or she triggers either the three or ten-year bar from re-entry into the US. If you maintained an unlawful presence in the US for more than 180 days, but less than one year, then you are subject to a three-year ban. If you maintained an unlawful presence for one year or more, then you are subject to a ten-year ban.
But you may ask, “But I’m married to a US citizen now, I can just apply for a green card without leaving the country and triggering the bar right?” Well, generally no. Whereas those with a valid visa in the situation may simply apply to adjust their status, those with an unlawful presence as a general rule must apply at the consular in their country of origin, thereby triggering either the three or ten-year bars. Thus, this presents a Catch-22 in most cases. It creates a situation where an immigrant with an unlawful presence in the US will simply remain in the US rather than take a risk of being barred. This is antithetical to the purpose our immigration code, and this was finally recognized in 2016, when a new rule was published that allowed for what is a called a “provisional waiver.”
I-601a Provisional Waivers
Under the provisional waiver scheme, an immigrant with an unlawful presence, who is married to a US citizen, may apply for a waiver of the three and ten-year bars in the US without leaving the US and triggering the bars and a long waiting period for processing a waiver petition. However, this means that the applicant must be able to meet the waiver requirements if he or she is to beat the three and ten-year bars. However, it is very difficult to qualify for a waiver. In order to qualify for the waiver, an applicant must show that “extreme hardship” would result to the applicant’s US citizen spouse if he or she were forced to leave the US. This can really only be shown in two circumstances:
Ultimately, a waiver is very difficult to obtain, and requires the skill of a US Immigration Attorney like those here at Cardinal Immigration, a West Virginia Immigration Law Firm.
The fact remains, it is extremely important to remain in lawful status if you are here on a visa. This is the best way to make sure that you are not subject to the three or ten-year bars. Nevertheless, if you find yourself in this situation, remember that a waiver or provisional waiver is possible. However, be realistic in your expectations If you have any doubt, it is always best to consult with a qualified Immigration Lawyer.
Seth Gaskins is an immigration lawyer and founder of Cardinal Immigration, an immigration law firm providing legal services in West Virginia and throughout Appalachia and other underserved areas. Seth believes that immigrants in these areas are underserved and strives to provide these individuals with exceptional legal services that otherwise would require travel to big cities and large fees.
Seth S. Gaskins, Esq. is a Divorce and Immigration Attorney in West Virginia.