The Long-Lasting Impact of the nearly “Permanent” Bar

In the wake of President’s Biden’s “Keeping Families Together” parole program, the long-drawn-out consequences of the “permanent” bar continue to surface. Assuming the parole program is allowed to continue, individuals who may otherwise benefit greatly from the parole program may receive little to no benefit because of the changes made to the Immigration and Nationality Act (INA) nearly 30 years ago. These harsh consequences not only affect potential applicants under this new parole program, but they have also prevented countless immigrants from receiving benefits under long-established family, employment, and humanitarian petitions. As will be discussed below, the permanent bar requires that someone leave the United States for 10 years before that are able to apply for a green card.

To qualify for different kinds of immigration statuses in the United States, individuals must be admissible to the United States. That is, applicants must show that they have not committed certain disqualifying acts, such as immigration violations, criminal offenses, or suspected conduct that would be considered against national security, just to name a few.

In 1996, as part of the overhaul of our immigration laws, Congress passed the Illegal Immigration Reform Act and Immigrant Responsibility Act (IIRAIRA). With it, Congress created the “permanent” bar, making a person inadmissible to the United States if that individual:

• Departs the United States after having been unlawfully present in the United States for an aggregate period of more than one year or has been ordered removed

And

• Enters or attempts to enter the United States without inspection.

Generally, unlawful presence accrues during any period of time following an individual’s unlawful entry into the United States or any period of time following an overstay of a visa.  Of note, the one-year period of unlawful presence that triggers the “permanent” bar does not need to occur during a single stay; it may occur in the aggregate. An individual may have 6 months of unlawful presence in one trip and 6 months in a separate trip, but if that individual attempts to enter the United States unlawfully thereafter, they would trigger the “permanent” bar. It is also important to note that, any period of unlawful presence, even if accumulated as a minor, can trigger the “permanent bar”. It even applies to young children who were brought back and forth by their parents. To be clear, this applies to everyone, even people who have never been arrested or otherwise committed a crime.

Most grounds of inadmissibility permit an individual to file a waiver to request forgiveness; only the permanent bar requires that an individual first spend 10 years outside the United States. In many instances, individuals who have triggered this “permanent” bar will be in the United States and will not have requested permission to re-enter the United States prior to entering unlawfully. Such individuals will be permanently ineligible for many immigration benefits, including adjustment of status to lawful permanent residence, unless they spend that 10-year period abroad and request advanced permission to apply for admission into the United States. Even individuals that may qualify for “245(i)” relief may still be ineligible for adjustment if they trigger the “permanent” bar. There are not even exceptions in cases of extreme medical hardship to a U.S. citizen spouse, parent or child.

There are limited exceptions for certain individuals seeking admission to the United States that may be subject to the “permanent” bar:

• The “permanent” bar may be waived, even prior to waiting 10 years abroad, for self-petitioning individuals who qualify for VAWA (Violence Against Women Act). Self-petitioners must show a connection between the battery or extreme cruelty and their departure from the United States and their unlawful reentry or attempted reentry to qualify for this limited waiver.
• Individuals seeking U-visa status (Victims of Certain Crimes) or T-visa Status (Survivors of Human Trafficking) may file Form I-192 to seek a waiver of the “permanent” bar in connection with the U/T applications without needing to wait the 10-year period abroad.
• Certain applicants for nonimmigrant visas may be eligible to waive the permanent bar in conjunction with their nonimmigrant visa, but they would not eligible to obtain a green card without first spending 10 years outside the United States.
• The “permanent” bar does not prevent an individual from qualifying for asylum, withholding of removal or protection under the convention against torture.
• Individuals applying for cancellation of removal for non-lawful permanent residents before an immigration judge are not subject to the “permanent” bar.

Individuals that do not fall under one of these exceptions must wait the 10-year period abroad prior to filing for permission to reapply for admission into the United States. Even if the 10-year period abroad has elapsed, an individual must still file Form I-212 and have the request approved prior to reentering the United States. The decision to allow an individual to return to the United States after the 10-year period abroad is entirely discretionary. This means that the U.S. government will weigh the positive factors that relate to an individual case against the negative factors. The following is a non-exhaustive list of factors that the government will consider in deciding whether to approve a request for consent to reapply for admission:

• Immigration history
• Basis for deportation and recency of deportation
• Length of Residence in the United States
• Applicant’s moral character
• Criminal History and evidence of rehabilitation
• Ties to the United States, particularly family responsibilities
• Whether any other grounds of inadmissibility apply to the applicant
• Hardship to the applicant or others
• Record of the applicant’s service or need for service in the United States
• Whether the applicant is likely to become a public charge.

Individuals requesting consent to reapply using Form I-212 should provide as much documentation as possible as it relates to the above factors, particularly criminal history and rehabilitation, evidence of good moral character, and hardship factors.

Absent immigration reform, the “permanent” bar is expected to continue to make many individuals ineligible for adjustment of status notwithstanding executive action such as the “Keeping Families Together” parole program. If you have questions about whether you or a family member may be subject to the “permanent” bar or whether you may be eligible for one of the exceptions, please schedule an appointment with one of our experienced immigration attorneys.