Under the Immigration and Nationality Act (INA) there is a long list of grounds of inadmissibility. Basically, these are things about you, or about your circumstances, that would prevent you from being allowed into the U.S. They can also prevent you from successfully adjusting status to a green card holder even if you are already in the U.S.
The so-called permanent bar is especially important to understand because it is permanent. The full text of Section 212(a)(9)(C)(i) is shown at the bottom of this post. The bar applies to two different groups of people. We’ll take a look at each one, then cover some of the basics of the permanent bar.
Those illegally present in the U.S. for 1 year or longer.
The first group subject to the permanent bar is those who have been unlawfully in the United States for a total (“aggregate”) period of one year or longer. Unlawful presence can be a very technical term in immigration law, though in most cases a person knows whether she has been unlawfully present. The most common examples are someone who entered the U.S. illegally (e.g., using a fake visa or sneaking into the country) or someone whose visa has expired.
It is very important to understand that it is the total period of unlawful presence that matters.
Example. Florian sneaks into the U.S. on January 1, 2010 and leave 6 months later. Two years later she comes back into the U.S. on a tourist visa, but the visa expires and she stays an additional 7 months. Then she leaves the U.S. but wants to return. Florian will be subject to the permanent bar because she has more than one year of total unlawful presence.
Those previously removed (deported).
The second group subject to the permanent bar is individuals who have been previously ordered removed (meaning ordered to be deported). There are different procedures that can be used to deport someone but generally any removal order will fall under this category.
In some circumstances an individual may not know if he has been deported. When someone has been caught entering the U.S. the government can put that person in “expedited removal proceedings.” In that case the person never even sees an immigration judge, but the result is still a deportation order. But the government can also just allow the person to return to her home country. If you were caught entering the U.S. how do you know if you were deported? It is not always easy. Sometimes the only way to tell is by filing a Freedom of Information Act request with the border patrol. These requests are free, but can take over a year to process. Worse, sometimes the border patrol cannot find any records.
Illegal entry or attempted reentry.
It is not enough only to have someone fall into one of the two groups above. To be subject to the permanent bar the person must fall into one of those two groups and enter – or try to enter – the U.S. illegally. The permanent bar is triggered at the time the person tries to reenter the country.
Example. Suzan is illegally present in the U.S. for 2 years and leaves the country. She then tries to sneak into the U.S. and is caught. Since she was her for longer than one year and then got caught trying to enter illegally she is subject to the permanent bar. By comparison, Luis has been illegally present in the U.S. for two years but is still in the country. Since he has not left the U.S. the permanent bar does not yet apply to him.
Here is one important point. The permanent bar is not the only immigration law that might create problems for someone with illegal presence or a removal order. A person who has been ordered deported cannot apply for most immigration benefits for a period of 5 or ten years. It can even be 20 years for someone with a second deportation order. You have to think about more than just the permanent bar issue.
Example. Juan was ordered removed five years ago by an immigration judge but is still present in the United States. Since he has not left the U.S. the permanent bar does not apply to him. But his prior order of removal still prevents him from applying for most immigration benefits.
How are the 3- and 10-year bars different?
You may have heard about the 3- and 10-year bars, which are also caused by illegal presence. The 3-year bar applies to someone who has 6 months of illegal presence in the U.S. And the 10-year bar applies to someone who has 1 year of illegal presence. Just like the permanent bar, these bars are triggered when you leave the U.S.
Example. Samuel overstayed his visa by 7 months, then returned to his home in Canada. Starting the moment Samuel leaves the U.S., he is barred from returning for 3 years.
Remember that the permanent bar applies to a person who tries to illegally enter the U.S. By contrast, the 3- and 10-year bars do not have that requirement. Once a person has been illegally present and leaves the U.S. that triggers the bar. Another very important difference is that the 3- and 10-year bars may sometimes be waived. As discussed below, a waiver is like a type of pardon.
Another difference is the way unlawful presence is calculated. Remember that for the permanent bar we could total unlawful presence. So if the person has more than one period of time illegally in the U.S., those will be counted together. For the 3- and 10-year bars it is different. Multiple periods cannot be combined. Instead, the government looks at only uninterrupted unlawful presence.
The permanent bar and 245(i).
To apply for a green card in the U.S. a person usually has to legally enter the country. There is an exception, though, for someone who had a petition filed before April 30, 2001. The program is called 245(i) adjustment after a section of the immigration statute. Someone eligible for this program can apply for a green card in the U.S. even though she entered illegally. But the program is not available to someone who has the permanent bar.
Applying for a waiver.
Even though it is called “permanent,” a person is eventually allowed to apply for a waiver of the permanent bar. A waiver is like applying for a type of legal pardon. With the permanent bar, the individual must wait 10 years before she can even apply for a waiver. The government calls this procedure a request for consent to apply for a visa. Even if the request is approved is not guarantee that the visa will be approved. It is just permission to apply for a visa.
The consent request is made by filing a Form I-212. What factors will the government consider?
- Why the person was deported;
- How recently the person was deported;
- How long the person lived in the United States;
- The person’s moral character;
- Whether the person has shown respect for the law;
- The person’s family responsibilities;
- Whether the person is inadmissible for other reasons;
- Hardship to the person and to others;
- Whether the United States would benefit from the person’s return
There is also a separate waiver available to a very small group of people. These are individuals who were abused by a U.S. citizen or lawful permanent resident. The individual must have been married to the abuser. Also, the abuse needs to be the reason why the person left the United States.
The Section 212(a)(9)(C)(i) reads:
Aliens unlawfully present after previous immigration violations.-
(i) In general.-Any alien who-
(I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or
(II) has been ordered removed under section 235(b)(1), section 240, or any other provision of law [basically any order of removal, which is what deportation is called], and who enters or attempts to reenter the United States without being admitted is inadmissible.
(ii) Exception.-Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the alien’s last departure from the United States if, prior to the alien’s reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, he Secretary of Homeland Security has consented to the alien’s reapplying for admission.