Explainer: The Need to Reform or End the 3- and 10-Year Bars

Introduction

Immigration restrictions have been known to yield unintended consequences. Notably, the creation of the so-called 3- and 10- year bars, which create severe immigration consequences for undocumented people who reside in the United States for extended periods, has created significant distortions, keeping families apart and – counterintuitively – incentivized long-term unlawful presence in the U.S.

While intended to decrease the number of long-term unauthorized residents by barring them from reentering the U.S. for either 3 or 10 years, the bars have had the opposite effect, discouraging migrants seeking short term work from returning to their home countries. The bars also distort other aspects of our immigration system, preventing many unauthorized immigrants who would be eligible to adjust their immigration status from doing so and breaking up families.

This paper will provide background on the 3- and 10- year bars and their origins. It will then examine the consequences of their creation over 25 years ago, specifically how they likely increased the U.S. unauthorized immigrant population and threaten to keep families apart. Finally, this paper will review possible reforms to address these challenges and create a more fair and effective immigration system.

Background

The 3- and 10-year bars were established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), legislation that was intended to reduce the growing unauthorized immigrant population by imposing new and increased penalties for immigration offenses. Both bars are applied in the same manner; the only difference is length of the penalty, which varies depending on the amount of time an individual unlawfully has remained in the U.S. Table 1 provides a breakdown of the different penalties.

In order for the bars to apply, periods of unlawful presence in the U.S. must be continuous. In other words, the 3- and 10- year bars are only enforceable once an unauthorized immigrant resides unlawfully in the U.S. for 180 consecutive days – the bars do not take effect after multiple shorter stays.[1] Unauthorized immigrants subject to the 3-year bar must leave before removal proceedings begin. However, the 3-year bar does not apply if the unauthorized immigrant departs the U.S. after the initiation of removal proceedings. Unauthorized immigrants subject to the 10-year bar need not leave before removal proceedings begin; they can leave the U.S. any time before, during or after removal proceedings are finalized.

There is some confusion over where the bars can be served. By statute, the 3-year or 10-year bar commences upon deportation or removal from the U.S., but it does not specify where they must be served. While most people serve their bar outside the U.S., there are certain circumstances in which the bar can be served while still residing in the U.S. These include if the unauthorized immigrant is subsequently paroled or admitted into the U.S. following departure or if they simply illegally reentered the country. A 2006 opinion letter from the USCIS Office of the Chief Counsel stated that if a previously barred individual re-enters the U.S. on a non-immigrant visa or via parole, the re-entry bar will continue to run only for the length of the visa or parole. If the individual decides to stay in the U.S. illegally after the visa’s or parole’s expiration, the bar would cease to run until he is removed from the U.S., thereby exposing him to a new re-entry bar upon departure. This ruling also made clear that the re-entry bars would also not continue to run for anybody who illegally re-entered the U.S.

However, due to the absence of formal guidelines regarding this topic, the judgment of where either re-entry bar can be served occurs on a case-by-case basis. This has led to the Board of Immigration Appeals (BIA), the federal body tasked with interpreting U.S. immigration law, to break with prior USCIS rulings and declare in multiple cases that the re-entry bars do not have to be served outside the U.S., even if the individual illegally re-entered the country. Yet, USCIS has also returned verdicts indicating that re-entry bars must be served outside the U.S. The issue remains unsettled.

Consequences and Effects

In the 25 years following the enactment of the 3- and 10- year bars, their consequences and effects on the U.S. immigration system have become clearer. The impacts are most apparent in four areas: (1) the population of unauthorized immigrants in the U.S., (2) the length of stay of unauthorized immigrants, (3) the number of immigrants who unlawfully overstay their visas, and (4) barriers to family reunification. Each one of these topics is addressed below.

Growing U.S. Unauthorized Immigrant Population

With the undocumented population increasing from an estimated 3.5 million people in 1990 to 5.7 million in 1995, the 3- and 10- year bars were created to help deter illegal immigration and disincentivize overstays. By establishing strict penalties for unlawful presence, IIRAIRA’s sponsors intended that the bars would result in (1) a decrease the number of unauthorized immigrants in the U.S. and (2) deterrence of future unlawful immigration to the U.S. However, the growth of the unauthorized population after 1996 suggests that the 3- and 10-year bars have failed to achieve either goal.

Source: Department of Homeland Security

Note: Data not available between FY 2001-FY 2004

Following the implementation of the 3- and 10- year bars, the U.S. actually saw a significant increase in its estimated undocumented population. Figure 1 shows the growth of the U.S. unauthorized immigrant population since 1996 and suggests that the 3- and 10- year bars had little impact on reducing it, or were less significant than other factors driving the increase. In 1996, the estimated unauthorized immigrant population was 5.6 million; by 2007, it had more than doubled to 11.8 million and has remained around 11 million since.

Incentive to Stay?

Another noteworthy aspect of the unauthorized immigrant population is that they are, on average, remaining in the U.S. for longer periods of time, as seen in Tables 2 and 3. From 1995 (just before the creation of the 3- and 10- year bars) to 2017, the percentage of unauthorized immigrants in the U.S. for more than 10 years doubled while the number in the U.S. for 5 years or less almost halved. A similar trend is seen in the median term of residence for unauthorized immigrants, which more than doubled between 1995 and 2017. This data also suggests that the 3- and 10- year bars had little effect in decreasing the number of unauthorized immigrants in the U.S. In fact, it appears that unauthorized immigrants are deciding to stay in the U.S. for longer periods of time because they know that if they leave, the bars would prevent their reentry.

Instead of becoming a deterrent to those who plan on residing illegally in the U.S., the bars have become a significant reason why unauthorized immigrants decide to remain in the U.S. for longer periods of time, as the data suggests. These fears also apply to undocumented immigrants who are eligible to receive a family-sponsored permanent residence visa as waivers that would excuse their illegal residency are hard to obtain.

The Effects of Visa Overstays

A major driver of the increasing number of undocumented immigrants residing in the U.S. for longer periods of time has been the growth of visa overstays. Recent estimates suggest that more than half of undocumented immigrants in the U.S. are visa overstays. Additional analysis has also indicates that overstaying a visa has become the primary method by which people become undocumented, as seen in Table 4. Government data between FY 2015 and FY 2019 suggests visa overstays have remained at high levels, indicating that the two bars are likely not serving as the deterrent factors they were originally envisioned to be.

Barrier to Family Reunification

A final major consequence of the 3- and 10- year bars is that they break up families, especially mixed families consisting of one or more family members who are U.S. citizens or lawful permanent residents (LPRs, also known as “green card holders”) along with one or more family member who are undocumented.

Since those who are not present (or are not lawfully present) in the United States are required to apply for a green card from a U.S. State Department consulate abroad for an entry visa before adjusting status, those who attempt to do so may be barred reentering the U.S. for years – even when these individuals already have established families and livelihoods. However, by requiring individuals to leave the U.S. to attempt to obtain a green card, those who have unlawfully remained in the U.S. for extended periods are barred from reentering. With limited alternatives, many families face terrible dilemmas. These punitive measures have led many unauthorized immigrants either related to or married to U.S. citizens or LPRs to not adjust their immigration status, even when otherwise eligible to do so. It is estimated that the 3- and 10- year bars are preventing around 1.2 million spouses of either U.S. citizens or LPRs from acquiring green cards.

Inadmissibility Waivers

While the bars disqualify tens of thousands of people from applying for a visa, there are a few inadmissibility waivers through which inadmissible noncitizens can come legally to the U.S. The waivers, however, are discretionary and do not guarantee relief to all applicants.

To apply for an inadmissibility waiver, applicants must demonstrate sufficient family and community ties to the United States. If an applicant meets all other statutory and regulatory requirements of the waiver, consular officers must determine whether to approve the waiver as a matter of discretion. Nevertheless, meeting the statutory and regulatory requirements alone does not entitle the applicant to relief.

The applicant bears the burden of proving that he or she merits a favorable exercise of discretion. The approval of a waiver depends on whether the positive social factors and humanitarian considerations in the applicant’s case outweigh the unfavorable ones. For instance, demonstrating honorable service in the U.S. armed forces, having property or business ties in the U.S., or being the primary caretaker of a terminally ill U.S. citizen or LPR relative can improve the chances of getting a waiver. Granting waivers, however, rely on the discretion of consular officers, and it can take months to get a final resolution.

Possible Reforms

Rather than reducing unauthorized immigration, the 3- and 10- year bars have had unforeseen consequences that have increased the undocumented population and kept families apart. Congress should act to make reforms to mitigate the negative impacts of the bars or eliminate them entirely.

Eliminate the 3- and 10-Year Bars

Eliminating the bars would be the most straightforward method to address the bars’ negative consequences. President Biden on his first day in office sent Congress an outline of the U.S. Citizenship Act of 2021, which among many reforms would eliminate the 3- and 10- year bars. However, as of the date of this paper’s publication, the bill has not received floor votes in either the House of Representatives or the Senate.

Reinstate Section 245(i) Adjustments

Reinvigorating Section 245(i) adjustments is another way to mitigate the harms created by the 3- and 10-year bars. Section 245(i) is the part of the Immigration and Nationality Act (INA) that allows certain unauthorized immigrants to adjust their immigration status without having to leave the U.S. along with paying a $1,000 penalty. Created in 1994 and further amended by the Legal Immigration Family Equality (LIFE) Act, the adjustment currently only applies to those unauthorized immigrants who had an employment or family-based visa filed on their behalf prior to April 30, 2001. Consequently, there are exceedingly few cases currently where this adjustment can be applied. Although Congress has the power to extend or eliminate the current 2001 deadline, it has not done so.

If Congress were to extend or eliminate the deadline, as in recently proposed legislation such as the Fairness for Immigrant Families Act, an estimated 2.3 million unauthorized immigrants could become eligible for an adjustment of status and placed on a path to acquiring legal residency.

Reduce the Time Penalty of the Bars

If eliminating the 3- and 10- year bars entirely proves to be politically impossible, reducing the time penalty of the bars or scaling the time penalties to correspond to the severity of the immigration offense or public threat would be an attractive alternative.

These reductions would bring the U.S. in line with other destination countries, which maintain bars to reentry, but for shorter periods of time. For example, Canada bars unauthorized immigrants from re-entry for one year, Australia does so for up to three years. The Netherlands and Germany both have multiple reentry bars depending on additional aggravating factors, with longer bars applying for those who pose serious risks to public safety or national security – not just unlawful presence. Additional details can be seen in Table 6.

Conclusion

The 3- and 10- year bars were originally designed to deter to future illegal immigration and to decrease the undocumented immigrant population. However, they have failed on both counts and likely served to increase the undocumented population by discouraging those with unlawful presence from leaving the U.S. The 3- and 10-year bars have kept families apart and prevented immigrants otherwise eligible to adjust immigration status from doing so, undermining and distorting an already over-complicated U.S. immigration system.

Until reforms are made to address the 3- and 10-year bars, these problems will persist. Congress should act to eliminate the bars, create exceptions like Section 245(i), or at least reduce the time penalties in order to end a failed policy. Doing so will open opportunities for hundreds of thousands of otherwise eligible immigrants to apply for and receive legal status in the U.S.

***

[1] The bars do not apply to minors under 18 years of age, even if they have unlawfully resided in the United States.

The National Immigration Forum would like to thank Joshua Rodriguez, policy intern, for his extensive contributions to this explainer.