New York Lawyer's Legal Updates

Permanent Bar: Possible Solutions

Author: New York Immigration lawyer Alena Shautsova

A permanent bar is a scary thing for any immigrant: a permanent bar means that a person is disqualified from any relief in the US until he/she serves 10 years outside of the United States. There is no waiver for a permanent bar. In addition, after the 10 years are served, a person has to obtain government’s consent to apply for any visa.

Under the law, Section 212(a)(9)(C)(i), permanent bar applies to:

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.

For example, Linda is trying to come to the US, she is denied entry at the airport and is deported under Section 235(b). The next day she enters the US by crossing the border. Linda is subject to a permanent bar. Another example: Michael crossed the border and had lived in the US for seven years before he decided to go outside the US to visit his sick relative. He spent several months outside the US and crossed the border back to the US. Michael is subject to the permanent bar.

There are very limited situations where a person may be able to still apply for relief in the US, even if he/she is subject to the permanent bar.

VAWA self-petitioners

A Vawa- self-petitioner may be able to have the permanent bar forgiven to them if they can show the connection between the abuse and battery and the re-entry/removal/attempts to re-enter.

U Visa applicants

U visa beneficiaries also may have a chance: U visa is issued to victims of crime, and during the process, the U visa applicant may submit a waiver that waives pretty much every ground of inadmissibility, including the permanent bar.

Waiver of the Permanent Bar under Section 212(a)(9)(C)(i)(I) of the Act

 

HRIFA and NACARA Applicants

A waiver can be granted at the discretion of USCIS. The waiver is sought by filing Form I-601, Application for Waiver of Grounds of Inadmissibility. See 8 CFR 245.13(c)(2) and 8 CFR 245.15(e)(3). However, the standard that applies to the adjudication is the same standard as if the alien had filed Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal.

 

Legalization, SAW, LIFE Act Legalization, and Legalization Class Settlement Agreement Applicants

A waiver can be granted to such an applicant if the applicant establishes that a waiver should be granted based on humanitarian reasons, to ensure family unity, or because granting the waiver would be in the public interest. The waiver is filed on Form I-690, Application for Waiver of Grounds of Excludability under section 245A or section 210 of the Act. See 8 CFR 210.3(e) , 8 CFR 245a.2(k) , and 8 CFR 245a.18(c).

 

Asylee and Refugee Adjustment Applicants under Section 209(c) of the Act

Asylee and Refugee applicants for adjustment of status may obtain a waiver of inadmissibility in lieu of consent to reapply. The waiver is filed on Form I-602, Application by Refugee for Waiver of Grounds of Excludability. See 8 CFR 209.1 and 8 CFR 209.2(b)

Nonimmigrants

An alien who is inadmissible under section 212(a)(9)(C)(i)(I) may, as a matter of discretion, be admitted as a nonimmigrant under section 212(d)(3) of the Act.

21 March 2018
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