What is the Permanent Bar of Inadmissibility?
The “permanent bar of inadmissibility” is found in section 212(a)(9)(C)(i)(I) of the Immigration and Nationality Act (INA). Although it is similar to the more common 3- and 10-year bars of inadmissibility, there are differences in how the permanent bar is triggered and the penalties proscribed.
Triggering the Permanent Bar of Inadmissibility
Triggering the permanent bar of inadmissibility is a two-step process. First, an alien must either accrue more than 1 year of unlawful presence in the aggregate, or be removed under section 235(b)(1) of the INA, section 240, or any other provision of the law. Second, the alien who meets one of those two aforementioned conditions must also attempt to reenter the United States or successfully reenter the United States without inspection. To be clear, accruing 1 year of unlawful presence in the aggregate or being removed does not trigger the permanent unlawful presence bar without a subsequent illegal reentry attempt, and an illegal reentry attempt does not trigger the permanent bar without one of the two prerequisites.
It is important to note that leaving the United States under a grant of advance parole does not constitute a “departure,” and therefore does not constitute a prerequisite to the permanent bar of inadmissibility.
Distinguishing Triggering the Permanent Bar from the 3- and 10-Year Bars
In understanding the permanent bar, it is also important to distinguish the permanent bar from the 3- and 10-year bars of inadmissibility. The 3- and 10-year bars of inadmissibility deal only with aliens who accrue certain amounts of unlawful presence (more than 180 days but less than 1 year for the 3-year bar; 1 year or more for the 10-year bar) and then voluntarily depart the United States (3-year bar) or departs under any other circumstances (10-year bar).
The first difference one will notice with the permanent bar, relative to the 3- and 10-year bars, regards the prerequisite to the permanent bar that an alien have accrued more than one year of unlawful presence in the aggregate. The 3- and 10-year bars only consider unlawful presence accrued over a single stay. For example, an alien who accrues more than 1 year of unlawful presence over three separate stays would not be subject to the 10-year bar of inadmissibility. Such an alien may, however, be subject to the permanent bar if he or she subsequently endeavors to enter without inspection after departing.
The second difference is that a prerequisite to the permanent bar may be removal from the United States under section 235(b)(1) of the INA, section 240, or any other provision of the law, without regard to unlawful presence. This is not the case for either the 3- or 10-year bar, which are triggered only if the alien has accrued the requisite unlawful presence. For example, an alien who is removed but who has between 6 months and 1 year of unlawful presence would not be subject to the 3-year bar of inadmissibility.
Finally, the 3- and 10-year bars attach upon an alien’s qualifying departure from the United States after having accrued the requisite unlawful presence. They then merely prohibit the subject alien from being admitted without a waiver of inadmissibility during the applicable 3- or 10-year period. However, the permanent bar does not trigger upon an alien having accrued more than a year of unlawful presence in the aggregate or upon the alien’s removal under section 235(b)(1) of the INA, section 240, or any other provision of the law, but it is triggered after one of the occurrence of those requirements things followed by an attempted entry without inspection. This means that an alien who meets one of the two permanent bar prerequisites but who has not re-entered or tried to re-enter without inspection is not ineligible to be admitted on account of the permanent bar (the alien may be inadmissible on other grounds, such as the 10-year bar). The permanent bar only attaches after the attempted or successful entry without inspection.
Why is it called the “Permanent” Bar of Inadmissibility?
Certain aliens subject to the 3- or 10-year bars of inadmissibility may seek an unlawful presence waiver of inadmissibility. The repercussions of the permanent bar of inadmissibility are more severe because the statutory provision does not provide for a general waiver of inadmissibility. There are, however, limited circumstances in which an alien subject to the permanent bar may endeavor to seek lawful admission into the United States.
The circumstances in which the permanent bar may be overcome are set forth in a 2008 USCIS Memorandum: Memo, Neufeld, Scialabba, and Chang, USCIS Interoffice Memorandum, “Consideration of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act,” (May 6, 2009).
Consent to Apply for Readmission
The statute for the permanent bar provides for an exception for an alien who is subject to the permanent bar and who, more than 10 years after the date of his or her last departure, seeks consent from the Secretary of Homeland Security to reapply for admission. It is important to note that this is not a general waiver of the permanent bar for those who remain outside of the United States for at least 10 years. Rather, it allows such aliens to seek consent to apply for readmission from the United States Government. Such an application must be filed on the Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. If the alien is granted a favorable exercise of discretion, he or she may then reapply for admission into the United States, which may or may not be granted. The Form I-212 may be filed in conjunction with a Form I-601, Application for Waiver of Grounds of Inadmissibility, or with an application for adjustment of status.
Under the Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006), an alien subject to the permanent bar may not seek consent to reapply for admission to seek adjustment of status until 10 years have elapsed from the date of his or her last departure.
VAWA Waiver
The only waiver of the permanent bar provided for by statute is for Violence Against Women Act (VAWA) self-petitioners. In order to be granted a VAWA waiver of the permanent bar, the self-petitioner must establish a connection between his or her battering or subjection to extreme cruelty and his or her removal or departure from, or reentry, or attempted reentry into the United States.
Other Limited Waivers
The United States Citizenship and Immigration Services (USCIS) also provides for a variety of limited-use waivers from the permanent bar.
First, applicants for adjustment of status under the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA) and the Nicaraguan Adjustment and Central American Relief Act (NACARA) may be granted a discretionary waiver of the permanent bar by filing a Form I-601. The USCIS will use the same standard for adjudicating such waiver requests as it would had the alien filed the Form I-212.
Second, applicants for legalization, Special Agricultural Workers (SAW), LIFE Act Adjustment of Status (section 245(i)), and Legalization Class Settlement Agreement Applicants may be granted a discretionary waiver of the permanent bar for humanitarian reasons, to ensure family unity, or because the granting of such waiver is determined to be in the public interest. These applicants will generally apply for a waiver by using the Form I-690, Application for Waiver of Grounds of Inadmissibility Under Sections 245A or 210 of the Immigration and Nationality Act.
Third, applicants for temporary protected status (TPS) may be granted a waiver of the permanent bar of inadmissibility. This waiver may be granted for humanitarian reasons, to ensure family unity, or if the granting of the waiver is deemed to be in the public interest. However, a waiver for TPS does not waive the permanent bar for any purpose aside from TPS. This means that a person who obtains a waiver of the permanent bar for TPS would have to wait 10 years from the date of his or her last departure to apply for consent to reapply for admission and seek adjustment of status.
Fourth, asylees and refugees seeking adjustment of status may apply for a waiver of the permanent bar by filing the Form I-602, Application by Refugee for Waiver of Grounds of Excludability, unless it is determined that such application is unnecessary. Asylee and refugee adjustment of status applicants are not subject to the 10-year waiting period for consent to reapply for admission.
Finally, persons subject to the permanent bar may procure nonimmigrant waivers of inadmissibility to seek nonimmigrant visas. Such waivers are generally liberally granted. However, such a waiver would only apply to obtaining a nonimmigrant visa. The alien would still be required to seek consent to reapply for admission after 10 years from the date of his or her last departure in order to seek permanent residence. Short trips to the United States on a nonimmigrant visa after being granted a waiver are not counted toward the 10-year requirement.
Conclusion
The permanent bar can be avoided with certainty provided that an alien does not endeavor to enter the United States without inspection. Without such an attempt, even satisfying one of the first two criteria for triggering the permanent bar – over 1 year of unlawful presence in the aggregate or removal – will not render the alien subject to the permanent bar. Avoiding even the attempt of unlawful entry is imperative for an alien who has accrued the requisite unlawful presence for the permanent bar or who has been ordered removed from the United States. With regard to unlawful presence, an alien should understand the rules of his or her status in the United States and consult with an experienced immigration attorney regarding the rules for the accrual of unlawful presence.
If an alien is subject to the permanent bar, he or she should consult with an experienced immigration attorney for an individualized case assessment and an evaluation of whether any avenues for relief may be available.
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On December 7, 2016, the United States Citizenship and Immigration Services (USCIS) issued a reminder regarding the new fees for the Form I-924A, Annual Certification of Regional Center [news release].
