Skip to main content

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.

Comments

Popular posts from this blog

If You Are An Immigrant (even a US Citizen), Here Are 9 Things You Should Know

Are you a Naturalized U.S. Citizen, Lawful Permanent Resident, Visa Holder, or an Undocumented Immigrant? We recommend you take the following steps to protect yourself in our current version of America.
The last couple of weeks have reminded immigrants, even naturalized U.S. citizens, that they were not born in the United States. Our office has received countless phone calls, emails, and social media messages from people worrying about what their family’s future in the United States holds.
Most people want to know what they can do now to protect themselves from what promises to be a wave of anti-immigration activity by the federal government. Trump's Executive Order on Interior Enforcement has some provisions that should make most Americans shiver.  We recommend the following actions for each of the following groups:
Naturalized U.S. citizens. In particular if you have a foreign accent, and you are traveling within 100 miles of any US Border (including the oceans), we strongly rec…

Why is USCIS Taking So Long to Renew DACA Work Permits?

If the calls to our office are any indicator, there are thousands of DACA recipients whose work permit applications were filed at least three months prior to expiration, who are still waiting for their renewed work permits.  Without renewed permits, these individuals lose the right to work legally, the right to drive, and may once again accrue unlawful presence.

The DHS published a notice in October 2014 advising DACA recipients that they could file their request for extension up to 150 days (5 months) prior to expiration.  As with all things government, very few of the DACA recipients, who tend not to frequent government websites, knew about the memo and many did not file so far before expiration perhaps thinking that extending a work permit was a like extending a drivers license, its is done in a few minutes.  As an experienced immigration lawyer will tell you, the USCIS does nothing quickly, and certainly does not worry that a person may lose their job or their driver's licens…

LOS DERECHOS DE LOS EXTRANJEROS EN LOS ESTADOS UNIDOS

Todas las personas en los Estados Unidos, incluidos los extranjeros y aun los con ordenes de deportacion, tienen ciertos derechos básicos que deben ser respetados por los agentes de Inmigración y Aduanas (ICE). Estos derechos se derivan tanto de la Constitución de los Estados Unidos. y las leyes de Estados Unidos. Como extranjero, usted tiene los siguientes derechos:

SU DERECHO A DENEGAR LA ENTRADA A SU CASA
Usted tiene el derecho de negar la entrada a un agente de ICE a su casa sin una orden válida. Esta orden debe ser firmado por un juez. Usted puede negarse a abrir la puerta, o se puede cerrar la puerta después de descubrir que el agente no tiene una orden válida. Los agentes del ICE generalmente no vienen con una orden judicial. Estos agentes suelen venir a la casa de alguien con una orden final de deportación, muy temprano en la mañana. Si alguien está golpeando en su puerta a las 6:00 am, no le es requerido abrir la puerta. Mirar fuera de primera. Si es un agente del gobierno, ust…