Overcoming the 3 and 10-Year U.S. Immigration Bars

What the 3 and 10-year bars are

Many families who apply for a visa or green card at a U.S. embassy or consulate abroad worry about the unlawful presence bars. INA 212(a)(9)(B)(i) sets two of them.

A person who was unlawfully present for more than 180 days but less than one year, and who left voluntarily before removal proceedings began, is inadmissible if they seek admission again within 3 years of leaving. A person who was unlawfully present for one year or more is inadmissible if they seek admission again within 10 years of leaving or removal.

The bar is not a penalty for the stay itself. It applies when the person leaves and then asks to come back within the period. That is why the question matters most for people who must attend an immigrant visa interview abroad.

The same section also lists exceptions. For the people they cover, certain time in the United States is never counted, so the bar may not apply at all.

Under 18: time before the 18th birthday does not count

INA 212(a)(9)(B)(iii)(I) says: "No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence." USCIS repeats this in its unlawful presence guidance.

An example: a child stays in the United States for several years after a visitor stay ends. Before turning 18, the child leaves for an immigrant visa interview abroad, for example in the F2A category for children of permanent residents. For the 3 and 10-year bars, the child's unlawful presence is zero days, so an unlawful presence waiver (Form I-601) is not needed for that ground.

An adult with the same history would have to deal with the 10-year bar. The protection ends at 18: days after the 18th birthday count. For a child who is close to 18, the timing of the interview can decide whether a bar applies.

• The exception is about unlawful presence only. The overstay is still a status violation.
• For a child of a permanent resident, that status violation can block adjustment of status inside the United States. See I-485 or DS-260 for an F2A child with an overstay.

Asylum: time with a pending application does not count

Under INA 212(a)(9)(B)(iii)(II), time during which a person has a bona fide asylum application pending is not counted as unlawful presence, "unless the alien during such period was employed without authorization in the United States."

This matters for people whose asylum case is later denied. The time spent waiting for a decision from USCIS or an immigration judge is not counted, as long as the application was bona fide and the person did not work without authorization.

If such a person later qualifies for an immigrant visa, for example through marriage to a U.S. citizen or through an employer, the pending period does not create a 3 or 10-year bar. Time after the application stops being pending can count again.

A removal order is a separate question. INA 212(a)(9)(A) sets its own bars for people who were ordered removed, and the asylum exception does not cover them.

Family Unity, abuse survivors and trafficking victims

INA 212(a)(9)(B)(iii) lists three more exceptions:

• Family Unity (clause III): time as a beneficiary of Family Unity protection under section 301 of the Immigration Act of 1990 is not counted.
• Battered women and children (clause IV): the bar does not apply to certain survivors of abuse, where there is a substantial connection between the abuse and the unlawful presence. The test comes from INA 212(a)(6)(A)(ii).
• Trafficking victims (clause V): the bar does not apply to a person who shows that a severe form of trafficking was at least one central reason for the unlawful presence.

What the exceptions do not cover

The exceptions stop unlawful presence from counting for the 3 and 10-year bars. They do not make a past stay lawful, and the consular officer still reviews every other eligibility requirement.

Some conduct is a status violation even when no unlawful presence accrues. For example, under 8 CFR 214.2(b)(7) a B-1 or B-2 visitor "violates the conditions of his or her B-1 or B-2 status if the alien enrolls in a course of study." Work without authorization is another example.

Inside the United States, a status violation can bar adjustment of status under INA 245(c)(2) for family preference applicants, such as F2A children. In that situation, consular processing abroad (Form DS-260) may be the cleaner route.

USCIS also says these exceptions apply only to the 3 and 10-year bars. They "do not apply to the inadmissibility grounds under INA 212(a)(9)(C)(i)(I)," the permanent bar for a person who was unlawfully present for more than one year in total and then enters or tries to enter without being admitted.

The rules for adults are changing

For adults, case law on departures is moving. In Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), the Board of Immigration Appeals held that a departure on advance parole is a "departure" under INA 212(a)(9)(B)(i)(II). The Board overruled Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012).

Each history has its own dates of entry, departure and filing, and one wrong date can change the result. Before relying on an exception, have an attorney check the full timeline against the statute and current USCIS and State Department guidance.