You are expected to leave the United States before expiration of your visa. Chances are, nobody is going to knock on your door, put you on a plane and send you home. However, this doesn’t mean there are not consequences of overstaying your visa, especially if you want to one day make the United States your permanent home. You also may be detained and deported upon being identified under other circumstances, such as an arrest or a traffic stop.
The 3 and 10-Year Bar to Re-Entry
The three and ten-year bar refers to the amount of time you are not allowed back into the country if you overstay your visa. Here’s how it works.
If you have been in the United States illegally for more than 180 days, but less than a year, you trigger the three-year bar when you voluntarily leave the country. Even if you are currently in the process of getting your green card or you are married to a U.S. citizen, you are not permitted to return for three years once you leave the U.S.
If you have been unlawfully in the country for one year or more, you trigger the ten-year bar when you voluntarily leave, regardless of marriage to a U.S. citizen or a pending application for legal resident status.
Should You Leave the Country?
Since the act of voluntarily leaving the country triggers the three and ten-year bar rule, you should carefully consider the consequences before departing the country for more than 180 days (six months). You may have options for gaining legal status as long as you remain in the country.
Most commonly, you can apply for a green card based upon marriage to a U.S. citizen. Two issues are likely to arise. First, be aware that the fact that you married while residing in the U.S. unlawfully will raise red flags and prompt the immigration officer to give your application more scrutiny.
Also, be prepared for questions about your unauthorized employment while living in the United States. While you are exempted from the bar to adjustment, you may face hurdles for failing to pay taxes on your earnings.
Unfortunately, unmarried overstays have few options. However, you may explore whether you qualify under the Violence Against Women Act, which applies to both women and men, or laws pertaining to certain U.S. Armed Forces members and their spouses and children. Other less common scenarios might also apply to you.
What Should You Do If You Have Already Left?
Your options dwindle considerably as soon as you depart U.S. soil. You should, therefore, avoid leaving the country if at all possible if the three and ten-year bar applies to you. A short holiday overseas or a visit home could create substantial barriers to reentry.
To return to the United States within the three or ten-year period, you may be eligible for an I-601 waiver by proving that your absence causes an extreme hardship to your U.S. citizen or legal permanent resident spouse or parent. “Extreme hardship” is more than missing your loved ones. Examples of extreme hardship might include being the primary caretaker of an elderly parent or the sole provider to your U.S. citizen spouse and young children, who are now at risk of losing their home.
A relatively new provisional waiver program allows certain immigrants to remain in the United States during pendency of the I-601 waiver. The provisional waiver program originally just applied to spouses of U.S. citizens, but was expanded on August 28, 2016 to immigrants who can prove extreme hardship to a U.S. citizen or legal permanent resident spouse or parent. Families are, thus, not torn apart while awaiting a waiver.
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*The content and materials available via Ask Ellis are for informational purposes only and do not constitute legal advice