Periods of unlawful presence in the U.S. can make a green card applicant ineligible to be approved for a green card. There are some foreign nationals that are currently in the U.S. and that have petitions approved for them or are in some other categories that are nevertheless ineligible to apply for a green card (Adjustment of Status) from within the U.S. For instance, they may have entered the U.S. illegally and therefore are not permitted to adjust their status in the U.S.
If those foreign nationals have more than 180 days of unlawful presence in the U.S. and leave the U.S. to apply for a green card at a U.S. Consulate abroad, then they will be prevented from returning to the U.S. for a period of years. If those persons have more than 180 days but less than 365 days of unlawful presence in the U.S. then they will be barred from reentering the U.S. for 3 years. If they have 365 days or more of unlawful presence in the U.S. then they will be barred from reentering the U.S. for 10 years. This is sometimes referred to as the “3/10-year bars.”
Those bars to reentry are triggered when the person exits the U.S. So on the one hand the foreign national cannot apply for a green card in the U.S., and if instead he or she leaves the U.S. to apply for a green card abroad, the reentry bars are triggered.
There is a possible waiver to certain applicants that are subject to the 3/10-year bars if they can prove extreme hardship to a close qualifying relative. Previously, foreign nationals who left the U.S. and thus triggered the bars would need to first apply at the U.S. Consulate where their green card applications would be denied because of their previous periods of unlawful presence in the U.S. The applicants would then need to apply for an extreme hardship waiver while abroad. That process can take up to a year, causing extended family separation. If their waiver applications were approved then they would return to the U.S. Consulate. If their waiver applications were denied then they had to remain outside of the U.S. until either the 3 or the 10 years (whichever period applied to them) elapsed.
The 3/10-year bars were implemented as part of U.S. Congressional legislation 1996, in order to penalize unlawful presence in the U.S. They are found in U.S. law at Section 212(a)(9)(B) of the Immigration and Nationality Act.
In March 2013, USCIS initiated a new process to allow certain immigrant visa applicants who are immediate relatives (spouses, children, and parents) of U.S. citizens to apply for “provisional unlawful presence waivers” before leaving the United States for their consular interview. In August 2016, the provisional waiver was expanded to allow all individuals who are statutorily eligible for an immigrant visa (immediate relatives, family-sponsored or employment-based immigrants as well as Diversity Visa selectees) who only need a waiver of inadmissibility for unlawful presence to apply for that waiver in the United States before they depart for their immigrant visa interview.
The provisional unlawful presence waivers process was implemented to lessen the time that U.S. citizens and green card holder family members are separated from their foreign national relatives while those relatives are obtaining immigrant visas to become lawful permanent residents of the U.S. Form I-601A is only used to apply to waive the unlawful presence grounds of ineligibility for a green card.
There are certain other grounds of ineligibility for a green card that may also be waived, such as for fraud or misrepresentation. Or the person with previous unlawful presence in the U.S. may currently be outside of the U.S. Form I-601 is used to apply for waivers in those situations.
Foreign nationals, who may subject to the 3/10-year bars because of unlawful presence, or subject to other grounds of ineligibility such as for misrepresentation, should work closely with an experienced immigration attorney. Waiver cases involve a great deal of analysis and preparation. USCIS strictly applies the extreme hardship standard. Note that extreme hardship is more than the hardship that would be expected if a married couple were separated, for instance. The government’s view is that any couple would experience hardship under those circumstances. USCIS is looking for specific factors and supporting documentation of extreme hardship.
Note that the I-601 or I-601 waivers do not apply to a foreign national that has 1 year of more of unlawful presence in the aggregate. The aggregate means adding up multiple periods of unlawful presence. For example, the person may have 5 months of unlawful presence for one unlawful entry, left the U.S., and then another 10 months of unlawful presence for an unlawful entry at a different time. That adds up to more than 1 year of unlawful presence in the aggregate. There is no I-601 waiver for an aggregate period of one year or more. The person would need to remain outside of the U.S. for at least 10 years.
The 3/10-year bars apply to the nonimmigrant visa categories as well, such as visitor, work, and student visas. However, only foreign nationals who are applying for immigrant visas use the I-601 and I-601A waiver application forms. There are different government procedures for foreign nationals who apply for nonimmigrant visas and need waivers for inadmissibility.