Examining an Increasingly Complex Tapestry: The Unintended Effects of the Three- and Ten-Year Unlawful Presence Bars (Kristi Lundstrom, 76 Law & Contemp. Prob. 389, 2013)

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), focusing immigration law and policy on greater enforcement and centering the enforcement system around departures, in an attempt to deter immigrants from overstaying their visas. One major enforcement tool instituted by IIRIRA was the creation of three-and ten-year “unlawful presence” (ULP) bars, which are triggered when an out-of-status alien departs the United States. Since the law went into effect in 1997, the creation of these bars has had important consequences not only for immigrants, but also for their communities and the United States as a whole. Significantly, many of these effects are directly contrary to Congress’s intended purpose in enacting IIRIRA, as well as longstanding national immigration policy generally.

Many of these harmful effects are fueled by the ULP bars’ significant incentives to immigrants to extend, instead of shorten, their length of stay in the United States. Extended stays consign these immigrants to an undocumented underclass, validating common but largely incorrect stereotypes. Negative community stereotypes then influence legislators and others, fueling harsher immigration legislation and policy (like the ULP bars themselves), thus perpetuating a cycle of harmful stereotyping and stricter enforcement schemes. The bars also contribute to widespread economic challenges and weighty detrimental impacts on families of both immigrants and citizens.