In the previous article, I briefly discussed the pitfalls to overstaying a visa and accruing unlawful presence in the United States. It is a 3-year bar from the United States if an immigrant accrues more than 180 days of unlawful presence in the United States. It is a 10-year bar if the immigrant accrues 1-year or more of unlawful presence. This is known as “the 3/10 year bar.”

The 3/10-year bar equally applies whether an immigrant overstays a visa for more than 180 days or the immigrant enters the United States unlawfully and remains in the United States for more than 180 days.

However, an important note about the 3/10-year bar is that it only takes effect once the immigrant leaves the United States. As long as the immigrant is still in the United States, the 3/10-year bar does not take effect.

This article will focus on the waiver of the 3/10-year bar.

Only an immigrant who has a spouse or parent who is a United States citizen or lawful permanent resident (green card holder) is eligible to apply for the waiver of the 3/10-year bar. These are called “qualifying relatives.” United States citizen children are not qualifying relatives for the 3/10 year bar waiver and thus do not qualify an immigrant for this waiver.

The waiver is filed with the United States Consulate when the immigrant is applying for an immigrant visa to return to the United States as a lawful permanent resident.

To get the waiver, the immigrant must establish that his spouse and/or parent will suffer extreme hardship if the waiver is not granted. Unfortunately, there is no hard and fast rule as to what constitutes this level of hardship. But, most Consulates want to see hardship that stretches beyond what most families would suffer in this situation. Emotional hardship from a long-term separation is generally not enough because that is a hardship that all families in this situation suffer. Usually, the Consulates want to see more. Some factors the Consulates consider are serious financial hardships that would be placed on the qualifying relative if the immigrant could not reenter the United States, serious medical issues with a qualifying relative, and what other family is legally present in the United States to assist the qualifying relative.

If the qualifying relative is a spouse, the Consulate will take into consideration how long they have been married. Recent marriages are usually much more difficult to establish hardship, than long-term marriages, especially those marriages with children. Although the Consulate cannot consider hardship to a United States citizen child, the Consulate can consider hardship on the U.S. spouse if she is left to care for and support the child alone.

Waivers are difficult to obtain. They must be well documented with affidavits, financial records, medical records, etc.
Waivers are discretionary, and for this reason, the success rate of waivers varies by consulate. There is no appeal right if a waiver is denied.

Needless to say, it is wise to consult with an experienced immigration attorney if you believe you may be subject to the 3/10-year bar. Experienced guidance in this situation can make the difference.

Audra R. Behné has a practice dedicated to immigration law and is a member of the American Immigration Lawyers Association and the Los Angeles County Bar Association, Immigration Division. Her main office is located at 14724 Ventura Blvd., 2nd Floor, Sherman Oaks, CA 91403 ● Tel. (818) 881-2155 ● www.audrabehne.com email: audrabehne@aol.com 

This article is for informational purposes only and is not meant to provide legal advice in any specific case. Results may vary depending on the facts of a particular case. We make no prediction, warranty or guarantee about the results of any case, nor do we assume any legal liability for the completeness of any information and its impact on the results of any case. Each case is different and results depend on the facts of each case. Consult with and retain if you need legal advice.