Why the 3/10 year bar encourages illegal immigrants to stay and does not act as a deterrant

The 3/10 year bar is the greatest paradox of American immigration law. The 3/10 year bar is a immigration law that says that anyone who enters the country illegally and without inspection by a U.S. immigration official and stays for 6 months is banned from returning for 3 years. If the persons who enters illegally and stays for 1 year then the person is barred from returning for 10 years. The law was passed in 1996 with the intent of "deterring" immigrants from entering the U.S. illegally. Interestingly, no one seems to have considered the likelihood of foreign nationals would be up to date on their U.S. immigration law. Surprisingly, the average Mexican immigrant didn't seem to know about this law (or understand it for that matter.)

The interesting (or frustrating) aspect about this law from an immigration standpoint is that it only applies upon entry to the U.S. Thus, for example, if a Mexican national enters the U.S. without being inspected (sneaks across the border) and then marries a U.S. Citizen he or she must return to Mexico to apply for lawful permanent residency. (This is because a person who enters the county without inspection is not entitled to adjustment of status.) However, if the Mexican national has been in the U.S. for 6 months or more the 3/10 year bar will apply to him if he leave the U.S. and tries to reenter the U.S. Thus, the only procedure for an illegal immigrant to legalize his or her status is to depart the U.S. which in turn subjects them to the punitive 3/10 year bar. The only remedy for persons in this position is to apply for a waiver of the bar. The willingness of consular officials to grant these waivers varies from post to post and the success rates are not high in some locations. In short, it is a great risk.

I have spoken to countless immigrants who wish to legalize their status in the U.S. but they are faced with the choice of taking the risk of returning to their county and having to hope that they can obtain a waiver of the bar or remain in their county for 3 or 10 years. In many cases, these immigrants have been in the U.S. for many years and have U.S. spouses and children. In effect there are no good options for these people.

The interesting result of this marvelous piece of legislation is it accomplished something completely contrary to what its insightful authors intended--it discourages unlawful immigrants from leaving the U.S. and taking the correct path towards lawful permanent residency.