Democratic presidential candidates Hillary Clinton and Bernie Sanders both said this week that they'd like to do away with an immigration rule that bars some immigrants from returning to the U.S. legally if they’ve lived here without legal status.
It's often referred to as the “three- and 10-year bar,” part of a 1996 immigration law signed by President Bill Clinton. Here's how it works: If someone has lived in the U.S. illegally for six months to a year, they can't come back legally for three years. If they've been here longer, they're barred from legally re-entering for 10 years.
Most often, the rule hits people when they try to legalize their status through marriage to a U.S. citizen, or a petition from a relative. In order to adjust to legal status, people who came to the U.S. illegally must leave the country and go to a U.S. consulate in their nation of origin to complete the process of getting a green card. This is where people run into the three-year, 10-year bar.
"When does this apply? When someone is ready to adjust their status within the U.S. to get a green card, or when they go abroad to the American embassy in their home country to get their green card through a relative," said Alma Rosa Nieto, a Los Angeles immigration attorney and board member with the American Immigration Lawyers Association. "Then they learn that they have a bar, and that they cannot come in until they are out for three or 10 years."
Because of this, some people have become stuck abroad indefinitely and separated from their families. That's become less of a problem in recent years following a policy change by the Obama administration.
Immigrants who are barred from returning legally can apply for what's referred to as a "hardship waiver," which allows them to prove that their absence for several years will cause “extreme hardship” to their U.S citizen spouse. In 2012, the Obama administration made this waiver process easier, allowing people to apply for the waiver before they leave the U.S. - and not once they're already stuck in their home country.
This has some criticizing Clinton's and Sanders' comments this week as political grandstanding.
"Getting rid of it (the 3-10 bar) at this point wouldn't make much of a difference," said Mark Krikorian with the Center for Immigration Studies, a Washington, D.C. think tank that advocates for reduced immigration. "I think it's mainly an effort by Democratic candidates to point to something that will communicate solidarity with the anti-enforcement activist groups, but not come back to bite them in the general election."
Some of those who are in the legalization process disagree. Elizabeth Alonso, a U.S. citizen whose husband is an immigrant from Mexico, is trying to become a legal U.S. resident. She said she was encouraged by the Democratic candidates' comments, even if her husband already has his appointment at the U.S. consulate in Juarez, Mexico next month.
"At least they have the initiative to try to do something different for us," Alonso said.
Alonso's husband, Refugio, has lived in the U.S. for more than 20 years and was recently granted a hardship waiver. However, Elizabeth fears he might still be separated from his family if his legal resident visa isn't granted in Juarez.
"We’ve been together so long, we’ve worked so hard to raise a family, to raise our kids the right way, to offer them a better future – and then one person deciding he can’t come back?” she said.
Nieto said repealing the three-year and 10-year bars to legal re-entry could encourage some immigrants who were afraid of having to leave the U.S. for several years to finally adjust their immigration status. They would still need to travel to their home countries to complete the process, she said, but it would be less risky.
This might all be easier said than done, though: Repealing the rule would have to be done with the approval of Congress.