Individuals with problematic immigration cases may already be aware of the three and ten-years bars, which typically apply after a person has accrued the requisite “unlawful presence” and then departed the United States. If a person is deemed to have been unlawfully present for 180 days or more, but less than one year, and then left the country, he/she will face the three-year bar. If a person has one year or more of unlawful presence, and then departed the country, he/she will be barred for ten years. What is less known, and perhaps more insidious, is something called “the five-year bar,” which can prove even more formidable than the unlawful presence bar.
In the legal community, the five-year bar refers to Section 212(a)(6)(B) of the Immigration and Nationality Act. This statute applies to foreign national individuals who without reasonable cause fail to appear for their removal proceeding hearing or who have “in absentia” orders of removal. Under the provision, “any alien who without reasonable cause, fails or refuses to attend or remain in attendance at a proceeding to determine the alien’s inadmissibility or deportability, and who seeks admission to the United States within five years of such alien’s subsequent departure or removal is inadmissible.” In plain English, this essentially refers to a five-year bar to re-entry if you have failed to appear in immigration court without good cause and are applying for admission within five years.
Some important things to note:
· This bar is separate and different than any other bars that might apply to an individual. For example, a person who has failed to appear in court will also likely incur inadmissibility under 212(a)(9)(A). Reopening one’s court case and rescinding the order does not address or eliminate the five-year bar. Similarly, an individual may have successfully applied for and received approval of an I-601A, which lifts the unlawful presence bar, as well as an I-212, which grants permission to reapply for admission after admission. Nevertheless, if the person failed to appear in court, a consular officer can refuse admission under 212(a)(6)(B).
· The five-year bar applies to people placed into court proceedings after April 1, 1997.
· Unlike the unlawful presence bars, there is no waiver for the five-year bar. That being said, an individual may overcome the five-year by either waiting the five years outside the US before applying for admission; or demonstrating that there was “reasonable cause” behind the individual’s failure to appear.
In light of potential application of this bar, it is critical that anyone with an in absentia order, or anyone who failed to attend his/her removal proceeding, consult with an immigration attorney prior to departing the US. As can be seen, the consequences can be devastating.
The above is general information only and not intended to serve as legal advice. It does not create an attorney client relationship, nor should it be relied upon in lieu of consultation with an immigration attorney.