BAR TO ADMISSIBLITY: Three Year and Ten Year Bars to Admissibility to the United States

THE BAR TO ADMISSIBILITY
FOR PERSONS WHO HAVE OVERSTAYED
OR WHO HAVE WORKED WITHOUT
EMPLOYMENT AUTHORIZATION

Beware, people who have overstayed their authorized stay in the United States, or who have worked without employment authorization - - With the exception of Spouses and Step Children and Parents of U.S. Citizens, a BAR TO ADMISSIBILITY applies, preventing an overstaying person from being admitted to the United States as a Nonimmigrant, or becoming a U.S. Permanent Residents through adjustment of status, or consular visa issuance, until they have left the USA for a specified period of time, either three or ten years.

"BAR TO ADMISSIBILITY"
INTO THE UNITED STATES FOR ANY PURPOSE

(Note: Any person who applies for permanent residence or for a nonimmigrant visa,
even though they are physically present in the United States, is "applying for admission".)

Section 212(a)(9)(B) of the Immigration & Nationality Act, effective April 1, 1997, created two "Bars" to admissibility for aliens who were "unlawfully present" in the United States, i.e., overstayed a period of authorized admission by a period specified in the law, accepted unauthorized employment, or entered without inspection [inspection means inspection by an immigration officer.

"Bar", in this instance, means "prohibition" and "Admissibility" means entry into the United States for any purpose, either nonimmigrant, or as an immigrant permanent resident. Since (with the exception of INA 245(c) exempt persons) persons who are out of visa status, and persons who entered uninspected (illegally) can neither change status or adjust status to permanent residence within the United States, they must all leave the United States to apply for immigration benefits. It is upon leaving the United States that the Bar to Admissibility raises, and the person is prohibited from returning to the United States until they have satisfied the requirements of the Bar to Admissibility.

Note that even if a person manages to make it back tot he USA without the Bar to Admissibility issue being spotted (such as on a Visa Waiver), this does not waive the Bar to Admissibility, and that person may be caught by the immigration service if they apply for future immigration benefits.

THERE ARE TWO DIFFERENT BARS TO ADMISSIBILITY . . . . .

BAR 1:

An alien unlawfully present for more than 180 days but less than one year, but who left the United States voluntarily before removal proceedings began, is inadmissible for three (3) years from the date of departure or removal from the United States.

BAR 2:

An alien unlawfully present for 365 days or more is inadmissible for 10 (ten) years from the date of departure or removal from the United States.

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The "Bar to Admissibility", under the definitions contained in
Immigration & Nationality Act Section 212(a)(9)(B) applies to:

      • a person who entered the United States without inspection (illegally) and stayed longer than the requisite period of time, or . . . .

      • a person who overstayed a nonimmigrant visa for longer than the requisite period of time,
        unless they qualify for a Waiver*, or . . . .

      • a person who engaged in unauthorized employment in violation of the terms of their nonimmigrant visa, cannot be admitted for permanent residence until the applicable departure time requirement of the "bar" has been satisfied, by remaining outside the United States for a period of three (3) or ten (10) years, unless they qualify for a Waiver*.
* EXCEPTIONS (WAIVER) TO THE BAR,
OR SATISFYING THE BAR TO ADMISSIBILITY REQUIREMENTS

The Bar to Admissibility can be satisfied by the alien leaving the United States for the required period of time. In addition, exceptions to the Bars to Admissibility exist for minors, asylees, family unity beneficiaries, spouses, parents, and minor children of U.S. citizens, spouses, and minor children of lawful permanent residents, and battered spouses and children.

Also, the "unlawfully present" periods are tolled for up to 120 days for those who were admitted or paroled and who thereafter filed a "nonfrivolous" application for change or extension of status before their authorized stay expired, and were not employed without employment authorization.

A person who made an uninspected entry (entered illegally without being inspected by an immigration officer) into the United States is not eligible for the Waiver of the Bar to Admissibility while they are in the United States, even if they are in one of the otherwise excepted categories.

Adjustment of status to that of Permanent Resident is not allowed within the United States for persons who entered illegally without inspection by an immigration officer. They MUST go to the U.S. Embassy or Consulate in their home country for issuance of a Permanent Residence Visa, after the Relative Petition is approved by the Immigration Service and an interview is scheduled.

Upon proper application at the U.S. Embassy or Consulate at the time of the permanent residence interview, the "Bar to Admissibility" may be waived for an immigrant who is the spouse or minor child of a U.S. Citizen or the spouse of a lawful permanent resident who made an unlawful entry, if extreme hardship would result to the qualifying U.S. Citizen or permanent resident alien relative. As a practical matter, his type of waiver is routinely given at the U.S. Consulate outside the United States without strict application of the hardship rule.

The law relating to the Bar to Admissibility and its exemptions are very complex. We advise seeking the advice of competent legal counsel for assistance in all family and business related immigration matters.

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