This article describes the permanent bar in US immigration law, and the steps needed to overcome that bar.

What Is the Permanent Bar?

The Permanent Bar is a punishment imposed by U.S. Citizenship and Immigration Services (USCIS) to prevent foreign nationals from entering the U.S. if they previously lived in the country without proper authorization, left, and then returned again. This restriction is officially known as the Permanent Unlawful Presence Ground of Inadmissibility. Basically, the U.S. government will not consider any applications for temporary or permanent visas from individuals who were deported or overstayed their visas by more than a year, and then attempted to or successfully re-entered the country without authorization.

Limitations Imposed by the Permanent Bar

Being subject to a permanent bar significantly restricts your ability to:

• Apply for any type of U.S. visa;
• Request a green card to become a permanent resident; or,
• Legally enter the U.S. through any port of entry.

However, entering or residing in the United States without legal documentation does not automatically result in a permanent bar. The U.S. Immigration and Nationality Act (“INA”) specifies the factors that determine whether a person triggers a 3 year bar, 10 year bar, or a permanent bar:

•         Your immigration status throughout your stay;
•         The duration of your presence in the U.S. without valid authorization;
•         Whether you were deported or departed voluntarily;
•         Compliance with the temporary bar durations, if applicable;
•         Any attempts or successes in unlawfully re-entering or residing in the U.S. post-deportation; and,
•         Any attempts or convictions for crimes committed in the U.S. or existing criminal records.

We highly recommend that you request a consultation with an immigration attorney to determine how these factors and your immigration history will impact your ability to obtain a visa to come to the United States.

Understanding the Aggregate Period

The aggregate period is the cumulative duration of time you were present in the U.S. without proper authorization, spanning all your visits. The process of accruing days within this period begins once you are identified as unlawfully present in the U.S. This could occur upon arrival if you entered without any authorization, known as “entry without inspection” (“EWI”). If you entered with a visa, your unlawful presence would start when your authorized stay ends, such as when your visa expires.

Merely overstaying a visa or entering the country without one does not automatically result in a permanent bar. To be subject to a permanent bar, you must accumulate at least one year, or 365 days, of unlawful presence. These days do not need to be consecutive; cumulative days of unlawful presence that total a year or more can lead to a permanent bar.

In addition, you must have attempted or successfully entered the United States EWI (or without a visa) to be faced with a permanent bar.

Exceptions to Accruing Unlawful Presence

Certain noncitizens without lawful status may be temporarily exempt from accruing unlawful presence under special circumstances, including:

• Asylees;
• Minors under the age of 18; and,
• Individuals with Temporary Protected Status or under the protection of a family unity program.

Petitioning for a Visa or Legal Status After a Permanent Bar

Although a permanent bar is deemed indefinite by USCIS, there are avenues to request permission for legal re-entry. However, regaining legal entry is more challenging if you have been permanently barred.

Initially, you must spend a minimum of 10 years outside the U.S. following your most recent departure. This period serves as a probationary phase. During this time, you are generally ineligible to apply for a visa or seek consent to apply.

Once you have completed the 10 years outside the United States, you would then have to file a Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. Generally an I-212 must be filed from outside the United States, before you return to the United States. We would need to provide proof that you have remained outside the United States for at least ten years.

Filing the I-212 Waiver for the Permanent Bar

The I-212 Waiver requires a showing that the reasons to allow the person to enter the United States outweigh the reasons to deny entry. There are no legal prerequisites such as a qualifying family member or hardship showing to be eligible for an I-212 Waiver. The process is entirely up to the discretion of the USCIS officers. These officers will weigh the favorable factors against the unfavorable and consider “all pertinent circumstances relating to the applicant.”

These factors that will be considered by the USCIS in deciding whether to approve the Form I-212 Waiver include:

• The basis and recency of deportation;
• Length of residence in the U.S.
• Moral character of the applicant
• Criminal history and evidence of rehabilitation
• Family responsibilities of applicant
• Inadmissibility to the U.S. under other sections of law
• Hardship involved to the applicant and others
• The need for the applicant's services in the U.S.

When preparing the Form I-212 Waiver, we generally include the following documents and materials:

• A completed Form I-212, with the legal basis for the application clearly marked.
• A copy of the relevant deportation, exclusion, or removal order and proof of departure, if applicable.
• A detailed statement by the applicant setting out the facts that give rise to the application, such as dates showing more than one year unlawful presence, attempted unlawful entry after removal. The statement should describe the reasons for entering and overstaying, and highlight positive equities.
• Proof of relationship to U.S. citizen or LPR family members. This can include marriage and birth certificates, as well as proof that they are citizens or LPRs. It is important to note, however, that having a qualifying relative is not a requirement for a Form I-212 waiver.
• Proof of residence abroad, showing that the person met the minimum time abroad. Evidence showing presence in the country can include school or work records, medical records, tax records, phone and other utility bills, receipts of purchases, lease or home purchase documents as well as rent or mortgage payments, and any other documentation that would tend to show the person was physically present outside of the U.S. for the required time abroad.
• Criminal records, if applicable. If there are convictions, certified copies of the abstracts of judgment should be submitted.
• Extensive evidence of positive equities, including but not limited to the factors listed above. Such evidence should include a combination of witness declarations, primary evidence of family and community ties such as photos and employment records, and the client's own declaration. If there would be hardship to family members or particularly sympathetic facts, such as unusual effects of family separation, health problems, or poor country conditions, that should be included as well.
• Payment of filing fee. As of this writing, the filing fee for an I-212 is $1,175.

If the USCIS approves the Form I-212, you would receive permission to return to the United States.

If you would like to discuss your qualifications for a waiver of the permanent bar, contact World One Law Group today! You can complete the Contact Form on this website, email [email protected], or call 425-250-8110.