THE PERMANENT BAR – WHAT IT MEANS FOR YOUR IMMIGRATION STATUS

Obtaining a green card is a complex process that requires applicants to meet strict eligibility and qualifications. You could be prevented from obtaining an immigrant visa in numerous ways, one of which is known as the immigration permanent bar. The word “permanent” makes this particular ground of inadmissibility more concerning for many people attempting to get their green cards. So, let's discuss what the permanent bar means and how you may be able to apply for relief from it. 

WHAT IS AN IMMIGRATION PERMANENT BAR?

The Permanent Bar is a ground of inadmissibility to obtaining a green card for those individuals who re-entered or attempted to re-enter the United States illegally after being in the United States unlawfully/illegally for over a year or after an order of removal.

To determine if the permanent bar is triggered, under INA 212 (a)(9)(C), it is important to examine an individual's prior immigration history, including the number and approximate dates of entries and any unsuccessful entry attempts into the United States, periods of unlawful presence and whether a removal order exists.

Individuals are subject to the "permanent" bar if they fall within either of the two categories below:

• Unlawfully stayed in the U.S. for more than a year, departed, and then attempted to re-enter without going through proper inspection.
  
  OR,

• Departed the U.S. while under a deportation order (whether they left voluntarily or were removed) and then tried to re-enter without inspection.

Consider this one type of example to help clarify this Immigration legislation:

A person enters the U.S. illegally, stays in the country for one year, then returns to their home country. After a brief stay in their home country, they attempt to enter the U.S. again illegally/unlawfully. This second entry, or attempt to enter, combined with their year-long illegal stay previously, means they will be subject to a permanent bar.

This example also applies if the person departed with an outstanding order of removal from the U.S. for illegal immigration or any other reason based on U.S. law.   Moreover, someone who enters or attempts to re-enter the U.S. with an order of removal also runs the risks of reinstatement of the prior removal order.

Anyone falling within INA 212 (a)(9)(C) is permanently inadmissible unless granted consent to reapply for admission, which can only be filed after an individual has spent at least 10 years aboard.    The ten-year time period is measured by the last departure from the United States and not the date of a removal order, if one has been issued. 

CAN A PERMANENT BAR BE LIFTED OR WAIVED?

Most of the common grounds of inadmissibility may be waived (which is a form of forgiveness).  But the permanent bar is the only ground of inadmissibility that requires an individual to spend 10 years outside the United States prior to filing any form of relief to overcome it.  However, there are few exceptions for certain class of individuals who are seeking admission to the United States but otherwise may be subject to the permanent bar. 

Below are a few of the exceptions to the permanent bar which have strict qualifiers and only apply to a select group of individuals. For example:

• VAWA Self-Petitioners: If you qualify for the Violence Against Women Act (VAWA) and can show your abuse was a reason for your unlawful departure and reentry, you may be eligible for a waiver.  In this instance, the “permanent” bar may be waived, without waiting 10 years abroad.
• U/T Visa Applicants: Those seeking U-visas (Victims of Certain Crimes) or T-visas (Survivors of Human Trafficking) can apply for a waiver of the "permanent" bar while applying for their U/T visas without the having to wait ten years abroad.
• Cancellation of Removal: If you are a non-lawful permanent resident applying for cancellation of removal before an immigration judge, the "permanent" bar does not apply to you.

Under these limited exceptions, the "permanent" bar is not an absolute barrier for everyone. Certain individuals and specific circumstances may qualify for waivers or exemptions.  For those who do not qualify for an exception they must wait 10 years abroad before filing for permission to reapply for admission to the United States, using form I-212. The form must be approved prior to seeking to enter the United States.  Like most waivers, form I-212 is completely discretionary, which means that the Immigration Officer will weigh the positive factors of an individual's case against any negative factors.

For the foreseeable future it is unlikely, the "permanent" bar will be eliminated by Congress, if you need assistance requesting permission to reapply for seeking a green card if you are subject to the Immigration "permanent" bar or with any other immigration issue, contact our office at 954-302-8989 for a consultation. You can also visit Contact Us | TCB Legacy Law,  for more information.