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3-year or 10-year bar to admissibility because of unlawful presence in the United States.

Immigration and Nationality Act ("INA") section 212(a)(9)(B) codified at 8 U.S.C. section 1182(a)(9)(B), bars an individual from the United States for 3-years, 8 U.S.C. section 1182(a)(9)(B)(i)(I), if the individual left the U.S., voluntarily or was removed, after accumulating more than 180 days, but less than 1-year, of unlawful presence in the U.S.. A 10-year bar to returning to the U.S. results if the individual left the U.S. after accumulating 1-year or more of unlawful presence in the U.S. before leaving the U.S.. 8 U.S.C. section 1182(a)(9)(B)(i)(II).

An individual subject to either of these time bar must apply for a waiver. The individual present in the U.S. can apply for a provisional waiver with U.S.C.I.S. and if the provisional waiver is approved would then leave the U.S. and be interviewed by a U.S. Department of State Consular officer overseas for the immigrant visa or nonimmigrant visa. The individual in immigration court would also need to apply for the waiver in court, if applicable. If a person is outside the U.S., the individual would apply for a waiver to the Consular officer or to an officer with U.S. Customs and Border Patrol (CBP) at the port-of-entry.

If the person has been outside the U.S. for more than the 3-year or 10-year time period, then a waiver is not needed when applying for an immigrant or nonimmigrant visa or adjustment of status.

If you have any questions on this issue or any other employment, investment, family, or individual immigration or citizenship issues please contact the law office at (213) 290-3606 or click the "Contact" tab above.

Before traveling, international students (F-1 & M-1) are advised to be careful.

Most international students on F-1 and M-1 student status are back in the United States (U.S.) as most U.S. schools have re-opened from summer break and the fall academic term has started. The fall and winter seasons offer opportunities when U.S. schools traditionally close, for example Thanksgiving and Winter school breaks, for students to travel back home or travel outside the U.S.

Before international students travel outside the U.S. for their annual vacation or because of a school break (authorized break in studies) (an F-1 student can take an annual vacation once per academic year after the completion of an academic year) (M-1 students get no annual vacation)), students are advised to do the following:

Meet with the Designated School Official (DSO)

  • Before leaving the U.S., meet with the DSO to inform about travel plans.
  • Have the DSO check the student's record in Student Exchange Visitor Information System (SEVIS) to see information is up-to-date and shows student is in ACTIVE status.
  • Confirm the DSO has signed the Form I-20 Certificate of Eligibility for Nonimmigrant Student Status within the last year. Student should take the signed Form I-20 to show the Customs and Border Patrol (CBP) officer when returning to the U.S.
  • Student should confirm the departure from the U.S. will not be for more than 5 months.
  • Student should get the DSO's up-to-date daytime telephone number at the school and a 24-hour emergency phone number.
  • If there is a pending training application with the United States Citizenship and Immigration Services (USCIS), the student should not leave the U.S.
  • If the USCIS has approved the training application, student should take the Employment Authorization Document (EAD) before leaving the U.S. to have it when returning to the U.S and show the CBP officer.

Double check student has the following documents before leaving the U.S. [These documents should be on you or in your carry-on luggage NOT in checked luggage.]

  • The student visa.
  • Passport (must be valid for at least 6 months after date of U.S. entry).
  • Signed Form I-20.
  • For M-1 student, most recent Arrival/Departure Record Form I-94.
  • Note, a I-901 SEVIS fee does not need to be repaid to re-enter the U.S. after travel.

If student does not have a document or other information when asked by a CBP officer when arriving back in the U.S., ask the CBP officer if she will issue you a Form I-515A.

  • A Notice to Student or Exchange Visitor (Form I-515A) will allow the student to be temporarily admitted to the U.S. for up to 30 days in order to obtain and submit the required documents and information to Student and Exchange Visitor Program (SEVP).

If you have any questions on this issue or any other employment, investment, family, or individual immigration or citizenship issues please contact the law office at (213) 290-3606 or click the "Contact" tab above.