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Gail S. Seeram

Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, aliens who depart the United States after being unlawfully present in the United States for certain periods can be barred from admission to lawful permanent resident status, even if they have obtained advance parole or have a pending adjustment of status petition.

Those aliens who have been unlawfully present in the United States for more than 180 days, but less than one year and who voluntarily depart the United States are inadmissible (or barred from entering the United States) for three years; those who have been unlawfully present for a year or more are inadmissible (or barred from entering the United States) for 10 years. Aliens, who are unlawfully present, depart the U.S. and subsequently reenter under a grant of parole may nevertheless be ineligible to adjust their status.

If an alien is subject to the three or ten year bar, adjustment of status will not be approved unless (s)he obtains a waiver. Even if an alien overstays, however, a bar will not apply unless (s)he leaves the US and re-enters. An alien who succeeds in re-entering the U.S in spite of an applicable bar needs a waiver in order to adjust status. On the other hand, an alien who would be subject to a bar if (s)he were to travel outside the U.S. will not be subject to the bar if (s)he never leaves the U.S. Note that the bars continue to apply if applicant travels while adjustment is pending, even if the alien obtains advance parole. A grant of permanent residence terminates applicability of the three or ten year bar.

It is imperative that all aliens with pending applications for adjustment of status to consult an immigration attorney before traveling outside of the United States. Traveling outside the United States may have severe consequences for certain aliens who are in the process of adjusting their status. Such aliens may be unable to return to the United States, their applications may be denied, or both.

The following example illustrates the three or/and ten year bar: An individual applies for and receives a ten-year visitor visa and enters the United States pursuant to such visa to visit family. At the border, the inspecting immigrations officer annotates Form I-94 by hand authorizing only a 90-day period of admission. The visitor, believing the visa authorizes his stay in the United States for the next ten years, does not realize that the annotated Form I-94 limits his period of stay and he remains in the United States for eleven months.

At day 91 of his stay, he begins to accrue unlawful presence and 180 days after that, he automatically becomes subject to the three-year bar on reentry. (If he were to stay in the United States for a year after hitting day 90, he would become subject to the 10-year bar on reentry.) As a result, even if this individual is eligible to become a permanent resident through family or employer sponsorship, he may be unable to attain that status.

Gail S. Seeram, an immigration attorney, handles cases involving family petitions, business/investors visas, citizenship, deportation, asylum, work authorization, and extension of status. Call her office toll free at 1-877-GAIL-LAW (1-877-424-5529), send an email at or visit her Web site at

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