The Permanent Bar to Immigration for Certain Repeat Violators

The U.S. Immigration and Nationality Act (I.N.A.) contains a number of grounds of “inadmissibility,” including one called the “permanent bar.”

By , J.D. · University of Washington School of Law

The U.S. Immigration and Nationality Act (I.N.A.) contains a number of grounds of "inadmissibility," including one called the "permanent bar." In literal terms, someone who is inadmissible to the U.S. will be denied any request for an immigrant visa (green card) or in many cases a temporary (nonimmigrant) visa. In this article, we'll discuss the effect of the permanent bar and whether it's truly permanent.

Reading the Law Concerning the Permanent Bar

Broadly speaking, the grounds of inadmissibility are barriers to U.S. entry based on things like criminal and security violations, health troubles, likelihood of becoming a "public charge" and requiring need-based government assistance, and immigration violations.

The permanent bar comes from Section 212(a)(9)(C)(i)(I) of the I.N.A., which makes inadmissible "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, and who enters or attempts to reenter the United States without being admitted." This part of the law came from legislative changes made in 1996, called the Illegal Immigration Reform and Immigrant Responsibility Act or IIRIRA.

For example, let's say someone crossed the U.S. border from Mexico illegally, stayed for a year, went home for a while, and then tried crossing the U.S. border a second time. That second attempt (whether it succeeded or not) makes the person inadmissible under this section. Leaving and coming back a few times so that no stay is longer than one year would not have helped, either. The word "aggregate" in the law means that it's enough that the person's stay added up to one year in total.

Similarly, someone who was ordered removed from the U.S., leaves or is transported to the home country, and then tries to enter without going through the required admission procedures, will be subject to the permanent bar.

What Is Unlawful Presence Under U.S. Immigration Law?

The first thing to understand in unpacking this part of the law is what "unlawful presence" means. In general, it refers to someone who either entered the U.S. illegally (such as by crossing the border secretly, or stowing away in a boat or car) or one who came to the U.S. legally (on a visa or the Visa Waiver Program/VWP) and then failed to leave on time.

Exceptions to Who Is Subject to the Permanent Bar

One of the main exceptions to the permanent bar has to do with timing. Since this section of the law went into effect on April 1, 1997, people who last reentered the U.S. before April 1, 1997 after a previous deportation are not subject to the permanent bar. Also, people who accrued unlawful presence before April 1, 1997 need not count this time towards the aggregate one year needed to trigger the permanent bar.

Unfortunately, the drafters of this law failed to spell out an exception for minors (people under the age of 18) with regard to accruing unlawful presence for purposes of the permanent bar. They made a clear exception for them in the case of a related bar for unlawful presence of over six months, leading many to believe that they'd intended it to apply in this situation, as well. U.S. government policy has gone back and forth on this, but in early 2024 the trend seems to be to hold to the letter of the law, and say that even a young person's unlawful time in the U.S. counts toward the permanent bar.

Is the Permanent Bar Truly "Permanent"?

Many grounds of inadmissibility can be waived, or automatically expire after a set period of time. But the permanent bar is harder, though not impossible, to overcome.

The statute says that someone subject to the permanent bar can request permission to enter the U.S. after waiting ten years first. The government interprets this to mean ten years outside the United States. But after these ten years, you can't just go ahead and submit a visa or green card application by the usual methods. You must first obtain the U.S. government's "consent" to your application.

To request this consent for a green card application, most applicants must use a form called "Permission to Reapply for Admission" or I-212, issued by U.S. Citizenship and Immigration Services (USCIS). For a nonimmigrant visa, you'll need to request an exercise of discretion. Asylees or refugees who are applying to adjust status would instead file a Form I-602, "Application by Refugee for Waiver of Inadmissibility Grounds." (Also according to 2009 USCIS memo.)

There is also a waiver to the permanent bar available to VAWA self-petitioners who can show a connection between their having been battered or subjected to extreme cruelty and their removal, departure from the U.S., reentry or reentries into the United States, or attempts at reentry.

What's more, refugees and asylees who are applying to adjust status in the United States need not wait until ten years are up to apply for USCIS consent to apply for a green card. (This is according to a 2009 USCIS memo.)

Other, more limited exceptions to the permanent bar also apply in unusual cases.

Getting Legal Help

If you think you might be eligible for a visa or green card, but are potentially affected by the permanent bar, definitely consult an experienced immigration lawyer. The lawyer can confirm whether you are subject to this bar and help develop a strategy for overcoming this in your quest for a visa or green card.

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