The 3 and 10 year bars and the waiver to forgive them

This page explains the unlawful presence bars and the waivers for them. It is general information, not legal advice. These rules are complex, and one wrong step can cost years. Use this page to prepare good questions, then get a lawyer's answer.

What are the 3 and 10 year bars?

They are penalties in federal law, at INA section 212(a)(9)(B). They apply when someone builds up "unlawful presence" in the United States and then leaves.

• 3 year bar: you were unlawfully present for more than 180 days but less than 1 year, then left on your own before deportation proceedings started. You cannot come back for 3 years.
• 10 year bar: you were unlawfully present for 1 year or more, then left or were removed. You cannot come back for 10 years.

The key word is leave. The bars do not start while you stay. They start the day you depart. That is why so many families are surprised: the person qualifies for a green card through a spouse or parent, goes abroad for the visa interview, and then is told they cannot return.

Green card holders are not covered by this bar.

What counts as unlawful presence?

Under the law, you are unlawfully present if you stay past the date your permitted stay ended, or if you are here without having been admitted or paroled.

Some time does not count:

• Time before your 18th birthday. None of it counts toward these bars.
• Time with a real asylum application pending, unless you worked without permission during that time.
• Time under the Family Unity program.
• Some survivors of abuse and trafficking, in the situations the law describes.
• Time with DACA. People with DACA are not counted as unlawfully present while they have it.

There is also a narrow rule that can pause the clock for up to 120 days for some people who were lawfully admitted, applied on time to extend or change status, and did not work without permission.

Counting unlawful presence is technical. Bring every entry and exit date you can find to your lawyer. See Papers that show how long you have lived in the United States and How to get a copy of your immigration file.

Can the 3 or 10 years pass while I am back in the U.S.?

Yes, according to USCIS. Its Policy Manual says the 3 or 10 year period starts the day you leave and keeps running no matter whether, or how, you came back during that time. Once the full period has passed since that departure, that bar no longer applies.

Be careful. USCIS also says the way you came back can create new unlawful presence or other problems, including the permanent bar below. This is a question for a lawyer, not a reason to travel.

What is the permanent bar?

A separate and harsher rule, at INA section 212(a)(9)(C), applies to someone who:

• was unlawfully present for more than 1 year in total, or was ordered removed, and then
• entered or tried to enter again without being admitted, such as crossing the border without inspection.

There is no regular waiver for this bar. The person generally must stay outside the United States for more than 10 years and then get permission to reapply (Form I-212) before coming back. A narrow waiver exists for some VAWA self petitioners when the abuse is connected to the departure or reentry.

If this sounds like your history, do not file anything and do not travel until a lawyer has reviewed it.

Who can get a waiver for the 3 or 10 year bar?

The law allows a waiver if you are the spouse, son or daughter of a U.S. citizen or green card holder, and you show that being kept out would cause extreme hardship to your U.S. citizen or green card holder spouse or parent.

Read that twice. For this waiver, hardship to your U.S. citizen children does not count on its own. Only a spouse or parent counts as the "qualifying relative." Hardship to your children still matters if it causes hardship to your qualifying spouse or parent.

The decision is discretionary, and the law says courts cannot review it.

What is the provisional waiver, Form I-601A?

It lets some people ask for the waiver before they leave for the consulate interview, so the family is apart for a shorter time. To be eligible, USCIS says you must:

• be in the United States when you file and go to your fingerprint appointment
• be 17 or older
• have an immigrant visa case pending with the State Department, such as an approved I-130 or I-140 with the visa processing fee paid, or be a Diversity Visa selectee or a family member of one
• show extreme hardship to your U.S. citizen or green card holder spouse or parent
• need a waiver only for unlawful presence, and nothing else

You cannot use it if you are in immigration court and your case is not administratively closed, or if you have a final removal order, unless USCIS already approved a Form I-212 for you.

What it does not do: an approved I-601A gives you no status, no work permit and no travel permission. It takes effect only after you leave, go to your interview, and the consular officer finds you otherwise eligible. If the officer finds another problem, the provisional waiver may not save you. File it by itself. Do not file it with other forms.

Proof USCIS asks for includes your State Department fee receipt showing "PAID," your petition approval, proof of your relationship and of your relative's status, proof of your admission or parole if any, evidence of extreme hardship, and evidence that you deserve a favorable decision.

What if I need a waiver after the interview?

That is Form I-601. You file it after a consular officer finds you inadmissible. It is a waiver of "grounds of inadmissibility," so it can cover unlawful presence and also some other problems that keep people out. Which ones it can fix depends on the ground. It costs $1,050. Ask your lawyer whether your case needs the I-601 instead of, or as well as, the I-601A.

What counts as extreme hardship?

More than the usual pain of separation. USCIS says the "common consequences" of being kept out, like family separation, money loss, or poorer schools or medical care abroad, are not enough alone. But it also says officers must look at everything together, and common problems added up can reach extreme hardship. The standard is lower than the one used for cancellation of removal in court.

USCIS looks at factors such as:

• Family ties and impact: who the relative cares for, their age, how long they have lived here, ties abroad
• Social and cultural impact: language, loss of community, access to courts and services
• Economic impact: job loss, debts, cost of care
• Health: medical or mental health conditions and whether care is available abroad
• Country conditions: safety, travel warnings, and whether the relative was granted asylum or refugee status from that country

Strong cases show both sides: the hardship if the relative stays here alone, and the hardship if they move abroad with you. See What extreme hardship means for an immigration waiver.

Can travel on advance parole trigger a bar?

Yes, it now can. On August 13, 2026, the Board of Immigration Appeals decided Matter of Delcarmen-Lara. It says a trip on advance parole counts as leaving for the 10 year bar, overruling an older decision that had protected these trips. The Board said it applies the new rule going forward.

USCIS follows it. Its Form I-131 page, updated October 7, 2026, says that as of August 13, 2026, leaving on advance parole is a departure for both the 3 and 10 year bars. So a person with more than 180 days of unlawful presence who travels on advance parole now can be barred when they come back. USCIS does not say how it treats round trips finished before that date. If you traveled earlier, ask your lawyer how your trip counts.

If you have past unlawful presence, talk with a lawyer before any trip on advance parole, including with DACA or a pending green card case. See Advance Parole: who can get it and how to apply and Is it safe to travel outside the US with DACA right now?

What mistakes cause the most harm?

• Leaving "just for the interview" without a waiver plan. This is the classic trap.
• Missing the permanent bar. A reentry without inspection after more than a year here changes everything.
• Filing the I-601A while in court without administrative closure. It will be denied.
• Thin hardship evidence. A short letter saying "we will be sad" rarely wins. Bring records.
• Trusting a notario. Only lawyers and DOJ accredited representatives may give immigration legal advice. See Warning signs of an immigration scam.

Questions people ask us

I came on a tourist visa and stayed. Do I even need a waiver? Maybe not. Some spouses, parents and children of U.S. citizens who were admitted can apply from inside the U.S. and never leave, so the bar never starts. See Can I still apply for a green card inside the US after the May 2026 memo?

I was under 18 the whole time. Time before 18 does not count toward these bars. Check carefully when you turned 18 and what happened after.

My only U.S. citizen relative is my child. Your child can petition for you once they are 21, but for this waiver your child is not a qualifying relative. Ask a lawyer about all your options. See Can my US citizen son or daughter sponsor me?

How long does the I-601A take? It varies, and it can be long. Look up Form I-601A on the USCIS processing times page for the current estimate. Plan for the wait before anyone books travel.

What happens if my I-601A is denied? There is no appeal and no motion to reopen. You can file a new I-601A if you still meet every requirement, including an open visa case with the State Department. Or you can apply for a regular waiver after you leave, go to the interview, and the consulate decides your case (8 CFR 212.7(e)(9) and (e)(11)). That second route means waiting abroad. Ask your lawyer which is safer before anyone travels.

Who can help?

You don't have to decide this alone. These are free or low cost nonprofits. Contact them to confirm hours, languages and openings. Being listed here is not a referral or a promise of service.

• Anywhere in the U.S.: the DOJ list of pro bono legal service providers, by state, or ImmigrationLawHelp.org by zip code.

For San Mateo and Santa Clara county residents:

• Community Legal Services in East Palo Alto (CLSEPA): 650-326-6440
• Immigration Institute of the Bay Area, Redwood City: (650) 587-1558, by appointment
• Catholic Charities San Francisco (serves San Mateo County): (650) 285-6451
• Catholic Charities of Santa Clara County: (408) 468-0100
• Asian Law Alliance, San Jose: (408) 287-9710

Anywhere in California:

• California Department of Social Services: the state's map of free immigration legal services, or call (916) 651-8017.

See Free or low cost legal help in the Bay Area for more.

Is there a checklist I can print?

Yes. Fill it in before your first meeting.

Waiting years for a family to be whole is heavy. Many families have come through this with good planning and patience. Take the first step, and let trusted people walk it with you.