Unlawful Presence and the Permanent Bar: Is it Really Permanent?

In a previous post, we provided an in depth discussion of the topic of unlawful presence and covered how the accrual of unlawful presence, i.e., remaining in the United States without lawful status, can lead to a three-year, ten-year and permanent bar to being admitted to the U.S. For the purposes of this post, we will focus on the permanent bar. Although the immigration statute does not actually use the word permanent when discussing this bar to admissibility, the consequences associated with triggering the bar, are often so insurmountable that many people simply do not qualify for relief from the permanent bar.

So how is the permanent bar triggered? Well, an individual will trigger the permanent bar if they have left the United States after accruing more than one year of unlawful presence and then attempt to re-enter the U.S. without proper inspection, whether or not they are successful. The permanent bar may also be triggered if an individual departs the U.S. (either voluntarily or not) with an outstanding removal order and subsequently attempts to re-enter the U.S. without proper inspection, whether successful or not.

For example, let's say that a person has crossed the border and was not admitted or inspected at a port of entry, i.e., they did not show ID, present a visa or proof of legal entry into the U.S. and answer questions from Customs and Border Patrol. That person then remains in the United States without lawful status for 2 years and then leaves the country to attend their parent's funeral. On their return back to the U.S. they are apprehended at the border while attempting to enter the United States. This hypothetical would trigger the permanent bar for this individual.

The greatest distinction between the three-year, ten-year and permanent bar, is that for the three and ten, there is a waiver available should the individual qualify. If the waiver is approved, those time periods are waived and the individual may enter the U.S. However, with the permanent bar, there is no waiver available. Instead, that person must wait outside the United States for ten years before they may apply for permission to re-enter the U.S. There is no way around this requirement. In fact, when applying for permission to re-enter, using the form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, you must show proof that you lived outside the U.S. for ten years.

For that reason, many people do not have the luxury or ability to reside outside the U.S. for that long. Very often, the individual who triggers the permanent bar has family and an entire life here in the U.S. and leaving that behind is simply non-negotiable. Now, of course, if that person is removed and sent back to their home country, they don't have a choice; however, most often those triggering the bar learn so through consulting with an immigration attorney or worse, in removal proceedings, and find themselves in an unfortunate situation.

The second most difficult factor that leads to the "permanent" nature of the permanent bar is that the I-212 process is completely discretionary. The adjudicators reviewing your application will consider "all pertinent circumstances relating to the applicant," such as length of residence in the U.S., hardship involved to the applicant and others, criminal history and evidence of rehabilitation, etc. When a process is discretionary, it means that even if you meet all of the requirements, your application may still be denied.

So, when it comes to the question of whether the permanent bar is truly permanent, the answer is that technically, it is not permanent; however, the hurdles that an applicant must overcome can be so great, that one might consider the process to be impossible. Although there have been many I-212 approvals, they are certainly not common and it is strongly advised that if you believe you may have triggered the permanent bar, you should consult with a qualified immigration attorney and learn more about the process and options available to you.

Disclaimer: This blog post and similar posts are not to be considered as providing legal advice. The discussion here is meant for educational and informational purposes only and shall not create an attorney-client relationship with the readers of this content.