In order to apply for a green card, one must be “admissible” to the United States. While oftentimes someone can apply for a waiver if he or she is inadmissible, there are cases in which someone has what we refer to as the “permanent bar,” which means that no waiver is available until the person spends 10 years outside the United States. This post discusses how someone can end up with the permanent bar, and the few cases in which is can be waived.
The Permanent Bar: Unlawful Presence >1 Year and Re-entry without Permission
The first way someone can end up with the permanent bar is by having done the following:
- Accrued more than one year of unlawful presence and then departed the United States; and
- Re-entered or attempted to re-enter the U.S. without permission
The unlawful presence is the amount of time you have spent in the U.S. without permission. It is measure in the aggregate, meaning that you can have multiple trips where you are accumulating unlawful presence, and if the total when you add them up is more than one year, than you may have the permanent bar.
The clock for unlawful presence can start in two different ways:
- You enter the U.S. without permission (this starts the unlawful presence clock at day #1 on the day you enter the U.S.) or
- You stay past the allotted time on your I-94 (which is different than the expiration of your visa).
However, accruing more than one year of unlawful presence does not necessarily mean that you have the permanent bar. Many people enter the U.S. without permission and stay for years and are able to apply for a waiver and obtain permanent residency (i.e. a green card). The second “requirement” for the permanent bar is that you had to have departed the United States and re-entered or attempted to re-enter without permission.
We have heard heartbreaking stories of clients who came to the U.S. at a young age, and returned to their home countries to care for a sick parent or attend a loved one’s funeral and then return. If the person was in the U.S. for longer than one year prior to departing, and then re-entered without permission, this person has the permanent bar. It can be devastating.
Permanent Bar: Prior Deportation and Re-entry without Permission
The second way in which someone can end up with the permanent bar is by having been removed or deported, and then re-entering without permission. This scenario often plays out when someone has been deported at the border, and then re-enters the U.S. soon thereafter. However, it is extremely important to note that just because someone was stopped at the border and turned away does NOT necessarily mean they were deported. It is quite possible the person was given what was called a “voluntary return” and was not deported. Our office oftentimes requests records from Customs and Border Patrol in order to determine whether a client was deported or given a voluntary return because the client is unsure.
When the Permanent Bar is Waivable or Does not Apply
There are certain circumstances in which the permanent bar is waivable or does not apply. Some instances include:
- U Visas for crime victims
- Asylum, Withholding of Removal, and Protection under the Convention Against Torture
- Cancellation of Removal
- VAWA Deferred Action
What the Permanent Bar Means
If you have the permanent bar, you must stay outside the U.S. for ten years before applying for a waiver.
If you are uncertain whether the permanent bar applies to you, please contact our office to schedule a consultation. We would never want to see someone leave the United States to apply for permanent residency only to discover they are not eligible because of the permanent bar.
For more information, see INA 212(a)(9)(c).