Marriage & Fiance Visas and Immigration Bars

To overcome an immigration bar you may have to prove that your spouse’s absence from the U.S. could cause you extreme hardship.

Last updated on October 3rd, 2017

What if My Fiancé is Subject to a 3 or 10 Year Immigration Bar?

If your fiancé is in the United States unlawfully and he stays for more than 180 days, he will be barred from reentry if he decides to leave. When your fiancé is subject to a 3 or 10 year immigration bar, it can be stressful because your future plans with your loved one may have to wait. This article will provide you with some basic information on immigration bars and possible waivers so that you can be prepared for what’s to come.

What is an Immigration Bar?

Immigration bars prevent immigrants from coming back to the United States for a set amount of time, depending on how long that immigrant stayed in the country not in lawful presence. Immigration bars are often referred to as “time bars” or “3 year and 10 year bars.” Time bars are the U.S. government’s way of punishing those that stay in the country illegally and prevents an immigrant from obtaining a green card or visa.

If your fiancé is in the country without permission from United States Citizenship and Immigration Service (USCIS), he is in the country unlawfully. Unlawful presence, for the purpose of time bars, refers to time your fiancé spent in the U.S. when he had no legal right to be in the country, i.e., after your fiancé entered illegally or after your fiancé’s visa expired. Not all stays accrue unlawful presence. For example, your fiancé’s time in the U.S. will not be considered as unlawful presence if he:

  • Is under 18 years old
  • Was in the U.S. for short periods of time (less than 90 days each time)
  • Has a pending or granted asylum application with the USCIS
  • Is waiting for USCIS’s decision on an application for adjustment of status
  • Overstayed his visa because he was a battered spouse or child
  • Is under Family Unity protection
  • Was admitted to the U.S. as a refugee
  • Was granted Deferred Enforced Departure (DED)

What Is The Difference Between The 3 Year Bar And The 10 Year Bar?

If your fiancé accrued unlawful presence in the United States for more than 6 months (180 days), but for less than 1 year and he leaves before he is deported, he will be barred from the United States for 3 years.

If you fiancé accrued unlawful presence in the United States for more than 1 year (or 365 days) and leaves before any formal removal proceedings have begun, he will be barred from reentering the United States for 10 years.

Will My Fiancé Be Barred If He Is In The U.S. While Adjusting His Status?

Whether your fiancé is allowed to remain in the U.S. while waiting to receive his green card depends on a variety of factors. If your fiancé entered the U.S. legally and maintained his nonimmigrant status without letting his visa expire, he will likely be able to stay in the U.S. while waiting for a green card.

The main exception to this rule is if your fiancé participated in the Visa Waiver Program. In this case, he can only stay if he is applying for a green card as the immediate relative of a U.S. citizen. Immediate relatives are typically allowed to adjust their status while in the U.S. even if their visa has expired as long as they did not enter the U.S. without being inspected by a border official.

My Fiancé Is Subject To A Time Bar, Does He Qualify For A Waiver?

My Fiancé is No Longer in the United States

Your fiancé may be legally forgiven for his unlawful stay in the United States and his time bar will be waived.   A waiver is only available if the immigrant:

  • Is the child or spouse of a U.S. citizen or permanent resident; and
  • Can prove that if he is barred, his U.S. citizen spouse or parent will suffer extreme hardship

Extreme hardship is hard to prove because it is more than economic hardship or suffering as a result of family separation. To prove extreme hardship, your fiancé must provide documentation explaining how his family member will suffer extreme hardship. Extreme hardship to the immigrant is not what the USCIS is looking for and if it is included, it will not count.

My Fiancé is Still in the United States

If your fiancé is still present in the U.S., he may be able to obtain a provisional waiver. Provisional waivers are only available to certain immigrants. To be eligible, your fiancé must:

  • Be at least 17 years old
  • Still be in the United States
  • Have a spouse that is a U.S. citizen
  • Be able to show that that U.S. relative will be subject to extreme hardship
  • Be eligible for an immigrant visa by having an approved I-130 or I-360 petition
  • Have a pending immigrant visa with fees paid

To apply for a provisional waiver, your fiancé must file a Form I-601A. The provisional waiver application is for those that are inadmissible only because of an unlawful presence of more than 6 months. For example, if your fiancé is inadmissible for other reasons, he is not eligible for the provisional waiver.

If the provisional waiver is granted, your fiancé will be able to leave the United States knowing that he will not be barred with reentering. If the U.S. Consulate or Embassy approves his visa application after his interview, he will be able to return to the U.S. immediately. If the provisional waiver application is denied, there is a chance that USCIS will begin removal proceedings.

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