March 4, 2011: Do the 3 or 10 Year Bars Affect This Person?

Do the 3 or 10 Year Bars Affect This Person?

Is there a 3 or 10 year bar from reentering the USA that applies to the J-1 visa overstay? For example, if I came to the USA on a J1 visa, then changed status to the B2 category (without leaving the country) and then overstayed by 2 years, which visa overstay would apply (J1 or B2)?
— Anonymous

The three year bar against reentering the USA after an overstay becomes effective upon departure from the USA after 180 days of unlawful presence. The 10 year bar becomes effective upon departure after 1 year of unlawful presence. So with the facts you present, you will most likely be barred from returning to the USA for 10 years if you have been in unlawful presence status for two years and then depart.

There are exceptions to this. For example, if at your last entry you were give “D/S” status incident to the admission as a J-1 or an F-1, and you completed the program or schooling, stayed over more than one year and then departed, the bars would not take effect because you would not be deemed “unlawfully present” as that term has been interpreted by USCIS. However, you changed your status to B-2 and were most likely given a finite time in which to depart the USA. You failed to depart rendering you unlawfully present. You are therefore likely to be subject to the 10 year bar.

If this sounds confusing, it is. The concept of the bars and unlawful presence, and whether it affects you should be made by a skilled immigration lawyer only after a complete review of all your paperwork.

Michael Shane and Evan Shane, Immigration Attorneys

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