Musings on Immigration

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What is the “permanent” bar? And is it really permanent?


The permanent bar comes from a 1996 law called the Immigration Reform and Immigrant Responsibility Act (“IRAIRA”). This law amended the Immigration and Naturalization Act (“INA”), which is where all U.S. immigration laws are contained. Section 212 (a)(9)(C) of the INA is the provision that talks about the permanent bar. This section states that any alien who has been unlawfully present in the United States for an aggregate period of more than one year, and who enters or attempts to reenter the United States without being admitted, is inadmissible (meaning, cannot obtain lawful admission to the U.S.). Although called “permanent,” this bar lasts for only 10 years but there is no waiver an immigrant can give to U.S. Citizenship and Immigration Services—this is why it is usually referred as permanent.

How does the permanent bar work in real life?  Let’s use a hypothetical: Sarah crosses the U.S./Mexico border (with no visa) as an undocumented immigrant.  She stays in the U.S. for one year and then goes back to her native country. She later crosses back to the U.S. and remains in the country. Sarah has a permanent bar under immigration law and she cannot submit any waiver to cure it or fix it. The law says that she must remain outside the U.S. for at least 10 years in order to not have this bar anymore.

A person who initially comes to the U.S. on a valid visa and who later overstays may also be subject to the permanent bar. Let’s say that Sarah come to the U.S. with a visitor visa and her authorized period of stay (as displayed on her Form I-94 Arrival/Departure Record—not the expiration of her visa) is 6 months. Sarah ultimately spends more than one year in the U.S. after the expiration of her Form I-94, leaves the U.S., and later tries to come back.  She would be subject to the permanent bar. Even where Sarah tries to come back with another visa, Homeland Security could still argue that she had previously violated the terms of her first visa, so her second visa was improperly issued to her, and her latest entry to the U.S. should not count as valid. In this last scenario, Sarah could also be subject to the permanent bar.

As you can see, this is a harsh law. Many undocumented immigrants in the U.S. right now are permanently barred from legalizing their status and do not even know it. There is not much they can do to resolve their situation but to stay out of the country. Even immigrants who are married to U.S. citizens and have U.S. citizen children find themselves unable to resolve their immigration status because they are subject to the permanent bar.  Even where an immigrant returns after being 10 years outside of the U.S., gaining admission is not as simple as just showing up at the border; one needs to request permission from the Department of Homeland Security and the manner in which this is done depends on whether the immigrant is asking for a nonimmigrant or immigrant visa.

This is why immigration reform is extremely important. When one has spent several years in this country, has obtained steady employment, and developed ties to the community by forming friendships, getting married, and having children, one is highly unlikely to leave for a decade, so a different path to legalization is needed and only Congress can provide definite solution for the millions of families in the U.S.

There may be some exceptions to the permanent bar.  To truly find out if you have—or not—the permanent bar, you should consult with an immigration attorney who can help you calculate the time.

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