Introduction

In addition to the 3 and 10-year bars of inadmissibility for accruing unlawful presence in the United States [see article], there is a more stringent bar of inadmissibility stemming from unlawful presence that is commonly called the “permanent bar.” The permanent bar of inadmissibility is found in INA Sec. 212(a)(9)(C)(i)(I). It stems from accruing at least one year of unlawful presence in the United States and then subsequently attempting to reenter or reentering the United States without inspection. As its name suggests, the permanent bar is a far more daunting bar to inadmissibility than the 3 or 10-year bars. However, there are limited scenarios in which a person may be allowed to waive the permanent bar or seek permission to reenter the United States after 10 years from the date of his or her last entry have elapsed. On May 6, 2009, United States Citizenship and Immigration Services (USCIS) issued an important policy memorandum titled Interoffice Memorandum on the “Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act” [PDF version] 1 (henceforth, “Neufeld Memo”), which clarified how United States Immigration and Citizenship Services (USCIS) would deal with issues pertaining to the permanent bar of inadmissibility.

Using relevant statues, case law, regulations, and agency memoranda, this article will explain how the permanent bar is triggered, potential waivers of the permanent bar of inadmissibility, and how an alien subject to the permanent bar may seek permission to reenter after 10 years from the date of his or her last entry into the United States.

Rules For Triggering The Permanent Bar Of Inadmissibility

Pursuant to statute, the permanent bar is triggered if an alien:

Has been unlawfully present in the United States for an aggregate period of more than 1 year or
Has been ordered removed under INA Sec. 235(b)(1), Sec. 240, or any other provision of law 2 and
Has subsequently attempted to reenter or has reentered the United States without inspection

Note: this definition does not include any period of time accrued or any unlawful entries before April 1, 1997.3

The word “aggregate” differentiates the permanent bar from its 3 and 10-year counterparts. While the 3 and 10-year bars require that the unlawful presence be accrued in a single stay, the permanent bar takes into account unlawful presence accrued over multiple stays toward exceeding 1 year of total unlawful presence.

The alien must leave the United States for the permanent bar to be triggered. If the alien who has accrued at least 1 year of unlawful presence and is then paroled into the United States, he or she would not be subject to the permanent bar upon leaving since parole does not constitute an unlawful entry. However, if he or she already had multiple unlawful entries, he or she would be subject to the permanent bar.

Finally, leaving the United States under a grant of advance parole does not constitute a “departure” pursuant to current BIA precedent, and as such would not trigger the permanent bar on inadmissibility.4

Narrow Waiver — Violence Against Women Act (Vawa) Self-Petitioners

The statute providing the rules for the permanent bar also provides for a very narrow waiver of the permanent bar of inadmissibility for Violence Against Women Act (VAWA) self-petioners.5 In order for a VAWA self-petitioner to qualify for a waiver, he or she must first demonstrate the following:

That he or she is a victim of “battery” or “extreme cruelty” by a spouse, parent, or by a member of spouse’s family residing in the same household and spouse or parent acquiesced to battery or cruelty; or
That he or she is a person whose child was battered or subjected to extreme cruelty by a spouse or parent of the alien (without the alien’s participation), or by a member of the spouse’s or parent’s family residing in the same household as the alien with the consent or acquiescence of the spouse or parent6

In addition, in order to qualify for the waiver, the VAWA self-petitioner must show that there is a connection between the battery or extreme cruelty on the VAWA petition and his or her “removal, departure from the United States, reentry or reentries into the United States; or attempted reentry into the United States.”7

Permission To Apply For Readmission For Those Subject To Permanent Bar Of Inadmissibility8

The Immigration and Nationality Act (INA) does not provide any other specific waiver of the permanent bar of inadmissibility. However, it does allow individuals subject to the permanent bar who have verifiably stayed outside of the United States for at least 10 years since their last departure to seek permission to reenter the United States.

In order to do this, an applicant must file a Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, demonstrating that he or she was outside of the United States for 10 years since his or her last departure and articulating a case for readmission.9 All applications are considered on a case by case basis. Adjudicators will consider whether granting the Form I-212 would serve any purpose (thus, if the alien would likely be inadmissible even if the Form I-212 was approved, adjudicators are instructed to deny the application).10 Applicants may file the Form I-212 in conjunction with a Form I-601, Application for Waiver of Grounds of Inadmissibility (note that in this case, the Form I-601 would be considered first, and if denied, the Form I-212 would likely be denied as well)11 or an application to adjust status.

Current BIA precedent holds that despite statutory provisions to allow adjustment of status for people with illegal entrances into the United States, there is no way to adjust status for people subject to the permanent bar before 10 years from their last departures elapse.12

Registry Benefits

Persons subject to the permanent bar may receive registry benefits13 if eligible. In order to be eligible, a person must:

Have entered the United States prior to January 1, 1972;14
Has had continuous residence in the United States since his or her entry;15
Is a person of good moral character (GMC); and16
Is not ineligible to citizenship and is not deportable under INA § 237(a)(4)(B) [link]17

Limited Waivers Of The Permanent Bar

There are very limited scenarios in which the permanent bar of inadmissibility may be waived aside from the VAWA-self petitioner scenario in the INA.

Haitian Refugee Immigration Fairness Act Of 1998 (Hrifa) And Nicaraguan Adjustment And Central American Relief Act (Nacara)

USCIS has jurisdiction under HRIFA and NACARA to consider waiving the permanent bar of inadmissibility for eligible applicants who file Form I-601s.18 USCIS will apply the same standard to evaluating these waiver requests as it does for Form I-212 applications to apply for permission for readmission.19

Legalization Applicants, Special Agriculture Workers (Saw), Legal Immigration Family Equity (Life) Act, And Legalization Class Settlement Agreement Applicants

Similarly to HRIFA and NACARA applicants, USCIS may waive the permanent bar for applicants in any of these four categories. These persons may be granted a discretionary waiver based on humanitarian reasons, to ensure family unity, or because granting the waiver is deemed to be in the public interest. A waiver application for applicants who qualify under these categories is submitted on a Form I-690, Application for Waiver of Grounds of Inadmissibility Under Sections 245A or 210 of the Immigration and Nationality Act.

Temporary Protected Status (TPS) Applicants

Applicants for TPS [see article] may be granted waivers of the permanent bar of inadmissibility.20 TPS applicants may qualify for waiver of the permanent bar waived on account of humanitarian reasons, to assure family unity, or if the granting of the waiver is deemed to be in the public interest.21

However, since there is a lower standard for granting a TPS waiver than for granting a waiver that requires the applicant to demonstrate “extreme hardship,” the TPS waiver does not waive the permanent bar for purpose of eligibility to adjust status. Thus, although a person granted a TPS waiver of the permanent bar of inadmissibility will be allowed into the United States, he or she will still have to wait 10 years from the date of his or her last departure to apply to adjust status.

Asylee And Refugee Adjustment Applications22

Asylee and refugee applicants who are subject to a permanent bar of inadmissibility may obtain a waiver of inadmissibility instead of filing a Form I-212. In order to do this, the asylee or refugee applicant must file a Form I-602, Application by Refugee for Waiver of Grounds of Excludability, unless the adjudicator deems the filing of the Form I-602 to be unnecessary.23

The 10-year waiting period for consent to reapply does not apply to refugee and asylee adjustment applicants.24

Nonimmigrants

Persons subject to the permanent bar of inadmissibility may receive nonimmigrant waivers of inadmissibility in order to obtain a nonimmigrant visa.25 These waivers are discretionary, but tend to be liberally granted, provided that the adjudicator does not find that granting the waiver would be “contrary to U.S. interests.”26 However, the waiver does not waive inadmissibility for any purpose aside from obtaining a nonimmigrant visa. The alien would still need to seek consent to reapply after ten years from his or her last departure from the United States in order to eventually obtain permanent residence.27 However, short trips to the United States on a nonimmigrant visa after being granted a nonimmigrant waiver of inadmissibility are not counted toward the ten year requirement.

  1. Memo, Neufeld, Scialabba, and Chang, USCIS Interoffice Memorandum, “Consideration of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act,” (May 6, 2009)
  2. INA § 212(a)(9)(C)(i)(I) and (C)(i)(II);
  3. See; Matter of Rodarte, 23 I&N Dec. 905 (BIA 2006); Neufeld Memo
  4. In Re ARRABALLY, YERRABELLY, BIA 25 I&N Dec. 771 (BIA 2012)
  5. INA § 212(a)(9)(C)(iii)
  6. INA 212(a)(6)(A)(ii), explaining VAWA requirements with regard to “violation of the terms of alien’s nonimmigrant visa”
  7. INA § 212(a)(9)(C)(iii)
  8. INA § 212(a)(9)(C)(ii)
  9. See 8 C.F.R. § 212.2 for regulations regarding the adjudication Form I-212s; but see Neufeld Memo explaining that sections (i) and (j) of the regulation are inapplicable due to Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006)
  10. AFM ch. 43.2(d)
  11. Id.
  12. Kurzban, Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. (ALIA Publications 14th ed. 2014) 116, citing; Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006) [holding that I-212 waiver cannot retroactively waive inadmissibility to those subject to permanent bar]; and Matter of Briones, 24 I&N Dec. 355 (BIA 2007) [holds that applicant subject to permanent bar cannot adjust status until 10 years have elapsed since his last departure from the United States]
  13. INA § 249
  14. Id.
  15. Id.
  16. Id.
  17. Id.
  18. See Neufeld Memo citing 8 C.F.R. § 245.13(c)(2) and 8 C.F.R. 245.15(e)(3) for applicable regulations
  19. Neufeld Memo, citing February 14, 2001 Office of Field Operations Memorandum, Changes to Section 202 of the Nicaraguan Adjustment and Central American Relief Act (NACARA), and the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA), based upon the Provisions of and Amendments to the Legal Immigration Family Equity Act (LIFE)
  20. See Neufeld Memo, citing INA § 244(c)(2)
  21. Neufeld Memo
  22. See INA § 209(c)
  23. Neufeld Memo, citing; AFM ch. 41.6
  24. Neufeld Memo
  25. See INA § 212(d)(3)
  26. 9 FAM 40.301 N1
  27. Neufeld Memo

Resources and materials:

INA § 212(a)(9)(C)(i)(I)

INA § 212(a)(9)(C)(iii)

INA 212(a)(6)(A)(ii)

INA § 249

INA § 209(c)

INA § 212(d)(3)

8 C.F.R. § 212.2

In Re ARRABALLY, YERRABELLY, BIA 25 I&N Dec. 771 (BIA 2012)

Matter of Rodarte, 23 I&N Dec. 905 (BIA 2006)

Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006)

Matter of Briones, 24 I&N Dec. 355 (BIA 2007)

Memo, Neufeld, Scialabba, and Chang, USCIS Interoffice Memorandum, “Consideration of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act,” (May 6, 2009)

AFM ch. 43.2(d)

AFM ch. 41.6

9 FAM 40.301 N1

Kurzban, Ira J. Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 116, Print. Treatises & Primers.