Waiver of the 3/10 Year Bar

What you need to know to get a better chance of success

“Just because you overstayed in the U.S. and are not supposed to come back for years does not mean you cannot get a Waiver of the 3/10 year bar prepared to be able to immigrate or stay in the U.S.”

— Brian D. Lerner, Attorney at Law

The Qualifying Relative

In order to be able to file the Waiver of the 3/10 year bar, you must have what is known as a qualifying relative. This is a person who has a specific relationship to you and will suffer considerable hardship if you are not allowed back into the U.S. or not allowed to remain in the U.S. In this particular case, the qualifying relative must be a lawful permanent resident or U.S. Citizen spouse or a lawful permanent resident or U.S. Citizen parent. Only those relationships qualify for this waiver. If you have a child who is a U.S. Citizen or Resident, that will not qualify. However, the child can be ‘bootstrapped’ to the qualifying relative to show they will suffer more hardship because of the child.

Preparation of the Waiver

The preparation of a Waiver is not easy. Many people do some research on the internet and think all they have to do is complete Form I-601 and that it will simply be granted. That is like reading the cover of a book and saying you have read the whole book. In fact, the I-601 Form is exactly like the cover of a book and only introduces the Waiver. It is the legal brief, declarations, affidavit, supporting evidence and all other materials that properly make a Waiver approvable.

After a 1996 change in immigration law created what are known as the “unlawful presence bars,” leaving the U.S. so their green card applications could be processed at a consulate was no longer a viable option for most people who had entered the U.S. without inspection. This is because, under the unlawful presence bars, people who have been in the U.S. without permission for six months are barred from reentering the U.S. for three years once they leave. In addition, anyone who has been in the U.S. without permission for one year or more is barred from reentering the country for ten years, unless the person is granted a waiver.

The DHS rule announced in 2013 reduces the risk of family separation for certain people with U.S. citizen family members. The rule allows qualifying people to apply for a “provisional waiver” before departing the U.S. People whose provisional waiver applications are approved are then able to travel abroad for consular processing knowing that a waiver has been granted for the “unlawful presence bar,” reducing the risk that they would be denied reentry. Being granted the waiver also reduces the time that such people spend abroad apart from their families, since a time-consuming part of the green card process will already have been completed before they leave the U.S.

The Provisional Waiver and Who can File it

If you are inadmissible under any other ground, then you would most likely not qualify for the Provisional Waiver. An example might be you committed a crime in the past which requires its own criminal waiver. Alternatively, you committed fraud making it necessary to do a fraud waiver. The reality is that if the provisional waiver of the 3/10 year bar is denied, you will probably not leave the U.S. However, if approved, many people have to go only for the interview and this takes many times less than a week outside the U.S.k.

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