INA §212(a)(9)(B), 8 U.S.C. §1182(a)(9)(B)
Immigration law imposes harsh consequences on people who have stayed in the United States without legal immigration status. If someone has been out of status for six months in the United States, then departs, she is barred from returning for three years. If she has been unlawfully present for one year or longer, then departs, she is barred for ten years. These are universally referred to by immigration lawyers as the “3- and 10-year bars.”
This rule does not apply only to those who entered the United States illegally. It also applies to those who overstay visas. It can also apply to someone who violated the terms of her visa status while she was in the United States.
If your fiancée or spouse has never been to the United States then this ground of inadmissibility cannot be an issue. If she has traveled to the United States, carefully ensure that she did not violate the terms of her visa.
The very unusual thing about the 3- and 10-year bars Is this: they are triggered only after a person leaves the United States.
Example: Juan enter the United States on a tourist visa when he was three months old. He is now 25 years old and is marrying a United States citizen. Because he had a lawfully inspected entry he is eligible to file for adjustment of status. Although he has been out of legal immigration status for over 24 years, he still has not triggered the 3- or 10-year bars.
When do bars become an issue? The most common scenario is when somebody is currently in the United States, but is ineligible to pursue adjustment of status because they did not have a lawfully inspected entry.
Example: Let’s assume the same facts as above, except that Juan was smuggled into the United States. Because he was not inspected at a port of entry, he does not qualify for adjustment of status. To proceed with a marriage base visa – his alternative – he will need to return to his home country to process the visa application at that consulate. By doing so, he will trigger the 10 – year bar, and be unable to return to the United States unless he secures a waiver.
If an individual is found to be subject to the 3- or 10-year bar, this is a serious issue. The only way to overcome such a finding is to submit a conflicts waiver application. A waiver can basically be thought of as requesting a pardon from the immigration agency. Successfully pursuing such a waiver requires you to demonstrate that your qualifying U.S. citizen family members will face hardship if you are not allowed back to the United States. The complexity of such a waiver application greatly exceeds that of the underlying visa or adjustment of status case.