Three- and Ten-Year Re-Entry Bars | Policy Brief (2024)

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What are the three- and ten-year bars?

The three- and ten-year bars are immigration policies that prohibit entry to the United States through a legal channel for some years. The bars are applied as an additional penalty for time spent in the U.S. without authorization, known as “unlawful presence”. Individuals who accrue a certain amount of time of unlawful presence are inadmissible, or ineligible to receive a visa or adjust their status.

Remaining in the U.S. without authorization for more than 180 days but less than a year triggers a three-year bar; more than one year is a ten-year bar. An individual who stays without authorization long enough to trigger a bar and then reenters or attempts to reenter the U.S. without authorization is subject to a permanent bar. Individuals who remain in the U.S. without authorization are also subject to removal.

The unlawful presence bars are generally applied when an individual has remained in the U.S. without authorization, then leaves the country and attempts to reenter through a legal channel. If they had accrued enough unlawful presence to trigger a bar, they would be denied reentry until the time on that bar runs out.

"For many immigrants—especially those who have built lives in the United States, are working, have bought homes, married, and have children who are U.S. citizens—the prospect of being separated from their families and their homes indefinitely is too great of a risk."

What impacts do the three- and ten-year bars have on immigrants?

Because of immigration barriers like the three- and ten-year bars, many people who have been undocumented in the United States are not able to adjust their status without remaining outside the U.S. for many years.

The immigration bars bars affect millions of immigrants who could qualify for a green card by being sponsored by a family member who is a U.S. citizen or permanent resident, or by an employer. If those individuals originally entered the U.S. without authorization (as opposed to entering with a visa), however, they must first leave the U.S. and go through consular processing before returning in a legal status.

But leaving the U.S. triggers the bars, making reentry impossible until the bars run out or are waived.

For many immigrants—especially those who have built lives in the United States, are working, have bought homes, married, and have children who are U.S. citizens—the prospect of being separated from their families and their homes indefinitely is too great of a risk. As a result, many individuals simply remain undocumented rather than attempt to use these pathways.

That is partly why the undocumented population in the U.S. has grown so significantly since the bars were implemented, and why the majority of undocumented immigrants in the U.S. have lived here for ten years or more. The harsh penalties of the bars have effectively closed off the existing available pathways for individuals to correct their status.

“FWD.us estimates that approximately 1.1 million undocumented immigrants living in the U.S. have a spouse who is a U.S. citizen who could sponsor them for a green card.”

How many people are affected by the three- and ten-year bars?

It is impossible to know how many immigrants are subject to the three- and ten-year bars, in part because the bars do not really come into play until after an individual has left the U.S. and attempts to reenter.

However, we can estimate a number based on who we know is most likely to be affected by a bar—that is, individuals who have been living in the U.S. without authorization and who likely have someone who could sponsor them easily for a green card, like a spouse who is a U.S. citizen.

FWD.us estimates that approximately 1.1 million undocumented immigrants living in the U.S. have a spouse who is a U.S. citizen who could sponsor them for a green card. On average, these individuals have lived in the U.S. for 16 years, are 41 years old; most have been married to their U.S. citizen spouse for at least a decade. Potentially, hundreds of thousands more outside of the U.S. are separated from their U.S. citizen families.

Additionally, FWD.us estimates that as many as 90,000 DACA recipients have a U.S. citizen spouse who could sponsor them. The bars are especially harmful for DACA recipients, who came to the U.S. at a young age and grew up here. They are very likely to have a potential sponsor through a spouse or employer, but also often do not know their full immigration history, and may not know they will be subject to a bar until they have already left the U.S. to change status and find themselves stuck in a country they barely remember. This can keep many DACA recipients from adjusting to a permanent status.

Why should the three- and ten-year bars be reformed?

Reforming the three- and ten-year bars is a narrow fix for a relatively recent immigration policy that has had the unintended consequences of limiting legal immigration and putting millions of mixed-status American families at risk of separation.

Allowing undocumented immigrants to receive relief from the bars would restore access to existing legal immigration avenues, allowing them to adjust their immigration status in a reasonable and measured way. This would not be a special pathway, just an opportunity to access the formal process for which they already qualify.

Reform would also prevent family separations that have been caused by the bars. This happens when a U.S. citizen attempts to sponsor their undocumented spouse for legal status, and finds out they are subject to an immigration bar. That forces the family to make an impossible choice: to voluntarily separate for many years, or to uproot their family and move abroad while they wait out the bars.

Often, individuals may not even find out they are subject to a bar until after they have left and attempted to return. They may have gotten bad legal advice, or they may not have remembered or did not understand something that happened in their immigration history (such as an unlawful entry or misrepresenting facts to an immigration officer) that comes up in their interview. In these cases, families are expecting the person to come home, only to find out they will not be able to return for many years.

“Regardless of their original intent, the three- and ten-year bars have become ineffective, prohibiting access to existing legal immigration avenues for undocumented immigrants and putting American families at risk of separation.”

What can Congress and the Biden administration do to address the impact of the bars?

Congress should advance legislation to reform the three- and ten-year bars and to expand discretion in applying the bars in cases involving U.S. citizens.

FWD.us supports the American Families United Act (H.R.1698), which would affirm that separation is a hardship for families. It would allow immigration officers and judges to consider the impacts of the bars on U.S. citizen family members in cases involving undocumented immigrants, giving those officials more discretion to grant relief in such cases.

FWD.us also supports legislation to reform the bars themselves, including repealing the three- and ten-year bars, narrowing the application of other bars for misrepresentation, and providing more access to waivers and reapplication. Such language is included in the Fairness for Immigrant Families Act (S.819) and the Reuniting Families Act (H.R.5560).

The executive branch can take other steps to relieve the harmful impacts of the bars, such as providing parole-in-place or some other administrative relief to spouses of U.S. citizens living in the U.S., and surging resources to reduce backlogs for provisional unlawful presence waivers (completed before leaving the country, to minimize risk of separation).

Regardless of their original intent, the three- and ten-year bars have become ineffective, prohibiting access to existing legal immigration avenues for undocumented immigrants and putting American families at risk of separation. Congress should reform the bars and restore access to the legal immigration process.