The number of times you enter, exit, and re-enter the United States without a visa affects your immigration status. If you've ever entered the United States without inspection, continue reading to understand how your border crossings may have made you ineligible for future visas.
I'm going to discuss the following common scenario: a non-U.S. citizen marries a U.S. citizen.
Under federal law, the noncitizen is eligible to apply for permanent residency based on the marital relationship. However there are several things you must prove when you apply, other than just your lawful marriage. One of these includes proving you did not enter and exit the country without permission too many times, or stay for too long.
Why does it matter how many times I exited and re-entered the country?
The Immigration and Nationality Act includes penalties for individuals who unlawfully enter the United States. If you entered without a visa you begin to accrue what is called "unlawful presence." This is the amount of days you have spent in the U.S. without permission. These number of days do not reset if you leave the country. The total number will affect how you proceed with your application for permanent residency.
Once the total amount of days you've been in the U.S. without permission reaches 180, if you leave the United States you will be barred for 3 years for receiving any visa.
Once the total amount of days you've been in the U.S. without permission reaches 365 (1 year), if you leave the United States you will be barred for 10 years for receiving any visa.
If you accrued at least 1 year of unlawful presence, exited the United States, and then re-enter, you will be subject to what is called the "permanent bar." It is not actually permanent, however practically speaking it will bar you permanently for a visa.
If I have a 3-Year, 10-Year, or Permanent Bar, can I still apply for a Green Card?
Yes, you can still apply. But you will have stricter requirements for obtaining your visa. Remember, each bar does not start until you exit the country. This is important because for those who did not enter with a visa, all interviews must take place at the U.S. embassy or consulate in your home country. Once you exit the U.S. the bar will kick in, and you will be ineligible for a visa during that time.
Adjustment of Status
If you entered the United States with a visa, and marry a U.S. citizen, you will eligible to "adjust your status." (One exception to this is if you enter using a visitor's visa and intended to marry.) Exceptions aside, this means you can remain in the United States and apply for permanent residency without traveling to your home country. This is only for people who were inspected by a U.S. immigration officer and admitted at the border or a port-of-entry. If you overstay your visa, you will start to accrue "unlawful presence" and will be subject to one of the above-bars if you leave the country. However, you will not be required to return to your home country since you entered on a visa, and you will therefore not be affected by the bar (since it only begins once you leave). You could overstay your visa for years and still be eligible for adjustment of status so long as you never left the United States.
For everyone else who did not enter with a visa, the process is much more complicated. With a very small exception for people who first applied many years ago, you will ultimately have to travel back to your home country for the consular interview.
The following scenarios are examples of how you can be affected by these bars:
I entered the U.S. unlawfully one time, but I never left
Under this scenario, if you've been in the U.S. unlawful for a year or more you will be subject to the 10-year bar. This means once you leave for your consular interview, you'll be denied. If you keep applying you will keep getting denied for 10 years (or 3 years if you have a 3-Year bar for staying unlawfully at least 6 months but less than 1 year).
However, under this scenario, you also have an option available to you to waive the 10-year wait period. It is called a Waiver. If you can prove that your U.S. citizen spouse will suffer extreme hardship if you are not approved for your visa, then the 10-year wait period will be thrown out. Meaning you won't have to wait due to your unlawful presence.
I entered the U.S. unlawfully but only stayed a couple days, left, and came back
Remember "unlawful presence" is the total amount of days you've been in the U.S. without permission. The bars only kick in once you've reached 180 or 365. So if you enter the U.S. without permission, stay for a month and then leave, you will not yet have a bar because your unlawful presence is only 30 days. However, if you keep doing this and eventually you reach 180 you will have then reached the point of the 3-year bar. At this point you'll need to apply for the Waiver unless you plan on waiting.
I entered the U.S. unlawfully, stayed for over 1 year, left, and came back
Lets say you entered without permission and stayed for 1 year. Then you left the U.S. and stayed in Mexico for a couple years. Then you came back to the U.S. and have been here since. Under this scenario you are now subject to the Permanent Bar. As soon as you've (1) accrued 1 year or more of unlawful presence; (2) left the United States; and (3) re-entered the United States, you have the permanent bar. And unfortunately the Waiver is not available in this scenario. Which means you will have to wait 10-years outside of the United States before being eligible to reapply. And then after the 10-years have passed, you cannot simply send in your application. You must first ask for permission to apply. And there is no guarantee you will be given permission. So it is in this regard why it is called the Permanent Bar. It is not officially permanent, but in reality you will not be eligible for any future visa.
Final Note: The 3-Year, 10-Year, and Permanent Bars exist now, but they were created in 1996 by Congress. These rules didn't apply before 1996, and if the immigration laws are amended they may not exist in the future. So while you may not have any option at this present time, there is still a chance you will in the future. Additionally, there are some applications for relief in Immigration Court that are not affected by these bars. So each person's scenario is different and there is not the same answer to every person's dilemma. So when you hear stories about how "my friend was allowed to stay in the U.S. to get his papers" or "my friend didn't need a waiver" its probably because of something as small as the specific amount of days of unlawful presence, or how long ago they applied for their green card. Before you start down this path, contact an immigration attorney so you know what you're getting in to.