Immigration Law's Catch-22: The Case for Removing the Three and Ten-Year Bars

Abstract

Congress has made family immigration a priority in statute but the unlawful-presence bars, also known as the three and ten-year bars, create unique barriers for family reunification that prevent many immigrants from legalizing their status through the existing immigration system. The three and ten-year bars prevent immigrants who have overstayed their visas or entered unlawfully from earning a green card even if they are otherwise capable of legally acquiring it. Removing or reforming the unlawful presence bars would remove a major legislative catch-22 that impedes the legalization of many unauthorized immigrants.

Take the example of Maria, a 23 year-old woman from Mexico who enters the United States without inspection and later marries the love her life, Mathew, a United States citizen. She can be separated from her husband for several years because of an unlawful-presence bar. In another example, Madthu, a 50 year old software engineer from India with a Master’s degree in engineering enters the United States lawfully but overstays his visa for one year. She can be banned from returning to the United States for ten years after she departs.

This paper examines the background and consequences of the unlawful-presence bars, and explores possible policy changes that would mitigate its harmful impact on noncitizens and their families.