Most Americans take it for granted that marriage to a U.S. citizen and other family relationships entitle an immigrant to a green card, but there are barriers that often prevent or delay these family members from becoming lawful permanent residents, even if they are already in the United States. Among these barriers are the “three- and ten-year bars,” provisions of the law which prohibit applicants from returning to the United States if they were previously in the U.S. illegally. Thousands of people who qualify for green cards based on their relationships to U.S. citizen or lawful permanent resident relatives leave the U.S. to obtain their green card are caught in a Catch-22—under current law they must leave the country to apply for their green card abroad, but as soon as they leave, they are immediately barred from re-entering the U.S. for three or ten years.
The Secretary of Homeland Security may waive the bar to admission if extreme hardship to a spouse or parent can be established. But there are no waivers available for others, even if it would mean hardship for U.S. citizen children. Unfortunately, current policies and interpretations of these provisions have made it difficult—and sometimes impossible—for many deserving applicants to obtain a waiver, especially if they initially entered the country illegally. Under current DHS policy, applicants must apply for the waiver from abroad, sometimes waiting months or years in another country before they learn whether the waiver has been granted and whether they will be permitted to return to their loved ones in the United States.
In other words, immigrants who have a chance to legalize their status are not able to do so because of a combination of overly punitive immigration laws and the rigid interpretations of those laws currently followed by DHS and Department of State. Immigrants have to choose between leaving the country and taking the risk they might not be able to return, or remaining in the country illegally. Where waivers are available, many of the immigrants most likely to be able to show extreme hardship are afraid to leave the country precisely because of that hardship. For example, a wife with a disabled husband must choose between departing the United States to get right with the law or taking care of her U.S. citizen husband.
Many have argued that the process need not be so complicated or unforgiving and that changes in existing policy could allow for the consideration of waivers before the applicant departs the United States. In order to understand how this issue affects the immigration debate, this IPC Fact Check provides background on the three- and ten-year bar issue.
What Are the Three- and Ten-Year Bars?
Sections 212(a)(9)(i) and 212 (a)(9)(ii) of the Immigration and Nationality Act (INA) impose re-entry bars on immigrants who are present in the U.S. illegally for a period of time, leave the U.S., and want to re-enter lawfully. An immigrant who enters the United States without inspection (illegally), or who overstays a period of admission by more than 180 days, but less than one year, and who then departs the U. S. voluntarily, is barred from being re-admitted or re-entering the United States for three years. If an immigrant is in the country illegally for more than one year, a ten year bar to admission applies.
Who Must Leave the U.S. for a Green Card and Why?
U.S. citizens and legal permanent residents may petition for green cards for certain family members. Sometimes the immigrant family members are outside of the U.S. when the petition is filed and when the visa becomes available, and sometimes those family members are already residing within the U.S. while they wait for their petition to be adjudicated and their visa to become available. Those in the U.S. may be here legally on a visa, or they may have come on a visa but that visa expired, or they may have entered the U.S. without proper documentation.
If the applicant for a family-based green card is the spouse, parent, or child under age 21 of a U.S. citizen (immediate relatives) AND if the applicant entered the U.S. with a valid visa (such as a visitor or student visa), that applicant may, in most cases, get their green cards in the U.S. through a process called “adjustment of status.”
However, all other people applying through the family-based system must go abroad and apply for their visa at a U.S. consulate in a procedure known as “consular processing.” The adult children and siblings of U.S. citizens, as well as the spouses and children of legal permanent residents, must leave the country to get their green cards, whether they initially entered on a legal visa or not.
Are Waivers of the Three- and Ten-year Bars Available?
A waiver of the three- or ten-year bar is available only where extreme hardship to an applicant’s citizen or permanent resident spouse or parent can be established. Hardship to the immigrant himself is not a factor, and hardship to the immigrant’s children is not a factor (even if the children are U.S. citizens).
The current system for processing and adjudicating these waiver requests requires immigrants to leave the U.S. and receive a formal determination of inadmissibility by a U.S. consular officer before a waiver application can even be submitted. Then the immigrants must apply for waivers of the three- or ten-year bar from outside the United States. In Ciudad Juarez, Mexico, one of the busiest consulates handling green card applications and waivers, there is currently a two to three month wait between submitting an application to the State Department and receiving a waiver interview with a USCIS representative. Approximately half of those applications can be decided immediately while the rest are sent to the United States for further review; the waiting time for that review can vary significantly, but averages at least another twelve months. Of course, not all waivers are granted, and those immigrants may not reunite with their family members for years. An appeal of a denied waiver can take up to 28 months or longer before the Administrative Appeals Offices adjudicates the appeal. This means longer periods of separation for family members.
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