Are You Barred From Reentry?

To many people, the general belief is that marriage to a U.S. Citizen can solve all immigration issues for individuals who are currently in the United States on an “unlawful status.”  This may be true for spouses of U.S. citizens applying for family based green cards who entered and remained in the United States with a valid visa that have overstayed, as these individuals may be able to get their Green Card from within the United States through the “adjustment of status” process.  However, individuals who are considered “EWI” or “entered without inspection” must apply from outside the United States.   The main issue that results for individuals that are either 1) considered EWI and must apply from outside the U.S. or 2) individuals that have entered with a valid visa that subsequently overstay the period of authorized admission and decide to leave the U.S. to apply for a Green Card from outside the U.S., is that these individuals may be subject to a reentry bar under the relevant section of the Immigration and Nationality Act. 

The Three-Year and Ten-Year Bars

Re-entry bars are imposed on immigrants who have accrued “unlawful presence” in the United States.  Unlawful presence in the United States is generally applicable to 1) individuals who have entered the U.S. without inspection and 2) individuals who have entered the U.S. with a valid visa but have overstayed their period of authorized admission.  Individuals who accrue more than 180 days but less than 1 year of unlawful presence in the U.S. are subject to a Three-Year Bar from reentry or re-admittance into the United States.  Individuals who accrue more than 1 year of unlawful status in the U.S. are subject to a Ten-Year Bar from reentry or re-admittance into the United States.  Clearly the Three-Year and Ten-Year Bars are problematic for couples that wish to marry and begin their married lives together in the United States.  In some cases, waivers to these bars to reentry may be available.  It is important to consult with a licensed attorney when contemplating how to reach your family immigration goals. 

 Author: Matthew D. Pineda, J.D., LL.M., LLMLE

Note: The information in this blog post is provided as a service to the internet community, does not constitute legal advice, and should not be construed as legal advice or legal opinion on any specific facts or circumstances.