We often speak to clients completely misguided as to the impact of their past overstay in the US. For example, a common misconception is that if they trigger the 10-year bar they believe they have to remain outside the U.S. for 10 years, before they are permitted to re-enter, this is incorrect.
We often hear the following from clients, if they have remained outside the United States for a 10-year period, they triggered the 10-year bar they will have no issues re-entering – this is incorrect.

When are the three and 10 years inadmissibly bars triggered:
The three- and ten-year bars to admissibility are found under Section 212(a)(9)(B)(i) of the Immigration Nationality Act 9INA), and the permanent bar to admissibility is found under Section 212(a)(9)(C)(i)(I) of the INA.
If you are unlawfully present in the United States for more than 180 days but for less than one year, and you voluntarily depart the United States prior to the initiation of any removal or deportation proceedings, you will trigger a three-year bar from the date of your departure from the United States. This means you are barred from re-entering the US within three years. EXCEPTION TO ENTERING BEFORE 3 YEARS: Waiver approved.
If you are unlawfully present in the United States for one year or more and then depart the United States, you will trigger the ten-year bar from the date of your departure or removal from the United States. This means you are barred from re-entering the US within 10 years. EXCEPTION TO ENTERING BEFORE 10 YEARS: Waiver approved.

WE HELP CLIENTS ENTER THE US BEFORE EITHER 3 OR 10 YEAR WHEN BARS TRIGGRED:
Depending on your circumstances, you may not need to wait the full three or ten years because there are waivers available to overcome your prior unlawful presence in the United States.
In other words, if you have triggered a ten-year bar and you have been outside the United States, for example, for five years, you do not need to wait another five years before you can seek to request reentry; neither do you need special circumstances such as the death of a loved one. You can file a waiver. This waiver is discretionary on whether Immigration will approve. If the waiver is approved, then you will be permitted to enter the States on or before the 3- or 10-year bar whichever you triggered.

What is unlawful presence:
There are various interpretations of unlawful presence, and you should speak to us so we can tell you whether we feel unlawful presence has been triggered. Any time spent inside the United States that is beyond the authorized period of stay on the I-94 arrival record is considered to be unlawful presence.

What is a permanent bar and when is it triggered:
There are two types of permanent bars:
One is the aggregate period of more than one year in unlawful presence after April 1, 1997, and you depart the United States and then enter as an “IW” (entered without inspection) or you enter illegally, or you attempt to enter without inspection or illegally. It’s the attempt also that’s very important here. “Aggregate” means the total time, not over a single stay.
The second type of permanent bar, is if you’ve been ordered removed and you then enter as an “IW,” entering without inspection or illegally or attempting to enter without inspection or illegally after 1997.
If you trigger the permanent bar, then a waiver is not available until you are outside the United States for ten years. Your options would be to either wait ten years or more from your last departure or to file a waiver. There are also special circumstances; for example, if you are a VAWA applicant (Violence Against Women Act applicant).