Unlawful Presence Bars: 3-Year and 10-Year Inadmissibility
Unlawful presence is one of the most misunderstood areas of U.S. immigration law.
Many people believe they are “barred” simply because they overstayed a visa.
In reality, the 3-year and 10-year bars depend on how time accrued and
what happened next.
What “unlawful presence” actually means
Unlawful presence is a technical legal concept defined by statute and agency policy.
It is not the same thing as being “out of status,” and it does not automatically make someone inadmissible.
The distinction matters because only unlawful presence—combined with a qualifying departure—
triggers the 3-year or 10-year bar.
Unlawful Presence and Inadmissibility (USCIS)
When the 3-year and 10-year bars are triggered
Unlawful presence by itself does not create a bar. The bar is triggered only
when a person with sufficient unlawful presence departs the United States.
followed by departure from the U.S.
followed by departure from the U.S.
but face serious problems if they leave and try to return through consular processing.
Adjustment of status vs consular processing
Many immediate relatives of U.S. citizens can apply for a green card without leaving the country,
avoiding the departure that would otherwise trigger a bar.
Departing the U.S. after accruing unlawful presence often triggers a bar,
which is why waiver planning becomes critical before leaving.
Waivers for unlawful presence
In some cases, unlawful presence bars can be waived.
The most common waiver path involves the I-601A provisional waiver,
which is designed to reduce family separation during consular processing.
Provisional Unlawful Presence Waiver (Form I-601A)
Unlawful presence and marriage green cards
Marriage to a U.S. citizen does not automatically erase unlawful presence.
Strategy depends on how the case is processed and whether departure is required.
Leaving the U.S. without understanding unlawful presence bars and waiver eligibility
can create long-term problems that are difficult to undo.