The Permanent Bar to U.S Immigration, distinguished from 3 and 10 years bar
The “permanent bar of inadmissibility” is defined in section 212(a)(9)(C)(i)(I) of the Immigration and Nationality Act (INA). It is similar to the more common 3 and 10 year bars of inadmissibility but, 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 involves a two-step process, as:
- First, an alien must either accrue more than 1 year of unlawful presence in the aggregate, or be removed under section 235(b)(1) or 240 of the INA, or any other provision of the law.
- Second, the alien who meets one of those two aforementioned conditions must also attempt to or has successfully re-entered the United States.
Distinguishing Triggering the Permanent Bar from the 3 and 10 Year Bars:
- The permanent bar as compared to the 3 and 10 year bars, regards that an alien should have accrued more than one year of unlawful presence in the aggregate.
- A prerequisite to the permanent bar may be removal from the United States under section 235(b)(1) or section 240 of the INA, , or any other provision of the law, without regard to unlawful presence which is not is not the case for either the 3 or 10 year bar.
- The 3 & 10 year bars attach upon an alien’s qualifying departure from the United States after having accrued the requisite unlawful presence.
Permanent Bar of Inadmissibility:
Aliens who are subjected to the 3 or 10 year bars of inadmissibility are allowed to seek an unlawful presence waiver of inadmissibility. The repercussions of such bar are more severe, which is due to the statutory provision that does not provide for any general waiver of inadmissibility. However, there are limited circumstances in which an alien subject to the permanent bar may endeavour to seek lawful admission into the States.
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 by providing an opportunity to reapply for admission. It allows such aliens to seek consent to apply for readmission from the United States Government which shall be filed on the some relevant forms provided 10 years have elapsed from the date of his or her last departure.
Violence against Women Act (VAWA) Waiver:
The only waiver provided for by statute is for Violence against Women Act where a 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
- re-entry, or
- attempted re-entry
into the United States.
Other Limited Waiver:
The United States Citizenship and Immigration Services (USCIS) also provides for a variety of limited-use waivers from the permanent bar.
- Application for legalization, Special Agricultural Workers (SAW), LIFE Act Adjustment of Status (section 245(i)), and Legalization Class Settlement Agreement.
- Applications 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.
- Applications may be granted a discretionary waiver of the permanent bar for humanitarian reasons, to ensure family unity.
- Asylees and refugees seeking adjustment of status may apply for a waiver of the permanent bar by filing the Form I-602, unless it is determined that such application is unnecessary.
- Also, they for temporary protected status (TPS) may be granted a waiver of the permanent bar of inadmissibility. This waiver may be granted for humanitarian reasons.
Concluding Remarks:
Aliens who are subjected to the permanent bar shall consult with an experienced immigration attorney. This shall provide for an individual case assessment and for an evaluation of avenues for relief that are available.
