There is the three-year bar. There is also a ten-year bar. But many unsuspecting undocumented aliens are shocked to learn that there is also something loosely termed the “permanent bar.” Unlike the three and ten year bars, which last for three and ten years, respectively, the permanent bar bans an alien indefinitely from the US. Unlike the 3 and 10-year bars, which provide for waivers to cancel or waive the bars, there is no waiver for the permanent bar. The closest thing to a “waiver” is the I-212, which aliens may use to apply for permission to come back to the US only after 10 years outside the US. (There is also a limited exception available related to Violence Against Women or VAWA applicants who have been abused by their US Citizen or Lawful Permanent Resident spouses.)
The permanent bar is found in Immigration and Nationality Act Section 212(a)(9)(C)(i) and may be triggered two ways. To paraphrase, the first group of people are those who have been unlawfully present in the US for an aggregate period of more than 1 year. The second groups are those who have been ordered removed under section 235(b)(1), section 240, or other provision of law. Section 235 refers to expedited removal and section 240 refers to regular removal proceedings in the US. Essentially, if an individual from either one of these groups enters or attempts to enter the US without being admitted, he or she will incur the penalties of the permanent bar. For example, if a person was placed in removal proceedings and ordered removed for 10 years, and then sneaks back into the US the next month after being removed, the permanent bar will be invoked. Similarly, if an alien is caught trying to enter at the border, receives an expedited removal order, and then sneaks back two weeks later, again the permanent bar is likely to be used by the government to foreclose any relief.
When and why is this all important? It is extremely relevant to a number of contexts including but not limited to when:
· A person has been to the US more than once
· A person has ever overstayed their visa
· A person has ever entered and stayed in the US illegally
· A person has ever been caught, apprehended, or stopped at the border
· A person has even been to Immigration Court
· A person has entered or attempted to reenter the US illegally
· A person has stayed illegally in the US and departed
These are just some examples of when the permanent bar needs to be explored to determine whether it is applicable to a person’s case. The potential applicability and consequences of the permanent bar should never be underestimated. For some, it can mean being unable to apply for status in the US and for others, it means being unable to immigrate unless and until the US government grants consent to apply for permission.
The above is general information only. It is not legal advice nor does it create an attorney-client relationship. Please consult with an attorney.