In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) which contained a number of provisions intended to strengthen the nation’s immigration laws, including what has come to be known as the 3 year/10 year bar. This provision:
- Bars re-entry into the U.S. for 3 years for anyone who was found to have been in the country illegally for a duration of between 6 months – 1 year;
- Makes it unlawful for someone who has stayed in our country illegally for 1 full year or more to re-enter the U.S. for at least 10 years.
The Act’s stated purpose is to punish immigrants who did not “play by the rules,” but a serious side effect is that it has caused a great deal of hardship to people who are here trying to find steady work and keep their families together.
Here are some facts to consider when revisiting the wisdom of the 3 year/10 year bar:
- Most of the out-of-status individuals penalized by this law entered the U.S. legally on a visa, but overstayed their visa. This is most often due to their desire to continue living in the U.S. because of the opportunities offered them and their families – or fear of returning to their countries of origin. But by overstaying their visas by only six months, individuals will not be allowed back for at least 3 years if they leave the United States. Oftentimes I have clients that have not seen their parents or grandparents still living in their home country. Many years may pass and they do not have the option to return, even to visit the sick and dying. The client must choose to stay in the United States where their present family resides, and must suffer what no one should have to go through: the inability to visit their loved ones far away.
- The Act provides incentives that can actually weaken Immigration laws. For example, an immigrant who has overstayed his or her visa by more than a year has more of an incentive to stay in the U.S. than to return “home” and wait 10 years to return – especially if he or she has a family here.
- A waiver of the 3 or 10 year bar is available only when extreme hardship can be established. The waiver process is an uncertain, sometimes unfair one, and the adjudication itself can take several months.
The 3 year/10 year bar is a provision which separates families and sends a message to out-of-status workers that they had better stay where they are or face dire consequences. The provision is punitive and unfair, and after 17 years it is time to repeal it.
Winograd and Schwartz Attorneys at Law, PC
Tel. (201) 770-9990