I-212 Waivers –Unlawful Presence, Prior Deportations and So-Called “Permanent Bar”

Attorney Ekaterina Powell from our law office has prepared the following article about the effects of prior deportations and unlawful presence on the possibility to immigrate to the U.S. Many Applicants come to our office to inquire about the consequences of prior deportations and periods of unlawful presence in the U.S.

There are two common scenarios.

The first scenario is usually similar to this: a foreign citizen had been previously deported from the U.S. and then entered or attempted to enter the U.S. illegally. Then the foreign citizen gets married to a U.S. citizen. The U.S. citizen comes to our office to inquiry about the immigration process for the spouse and to find out whether there are any issues associated with the alien spouse’s prior immigration violations.

Another common situation: a foreign citizen has been unlawfully present in the U.S. for more than 1 year, then departs the U.S. and enters or attempts to enter the U.S. illegally. Then that foreign citizen marries a U.S. citizen and tries to lawfully immigrate into the U.S.

Well, both of the above scenarios generally lead to a so-called “permanent bar” meaning that the foreign citizen is barred from the U.S. forever!
Unfortunately, the situations described above are very common. Families come to our office too late after a foreign citizen has already incurred a permanent bar. Had these foreign citizens sought immigration counsel’s assistance prior to entering/attempting to enter the U.S. illegally, they could have had a chance to immigrate to the U.S. lawfully in the first place without the fear of being permanently barred from the U.S.

The scenarios described above derive from Section 212(a)(9)(C)(i) of the Immigration and Nationality Act (INA) that provides that 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 is inadmissible.

The U.S. immigration law provides for a variety of waivers of immigration violations. However, for the situations described above, the waiver is available only after 10 years have passed since the date of the alien’s last departure from the United States, with certain exceptions. The waiver is called “Permission to Reapply for Admission” and is submitted via a form I-212.

Even aliens who are married to U.S. citizens or who have U.S. citizen children have to abide by this waiver period. As a result, families are forced to be separated for 10 years before they can apply for a waiver!
Luckily, not everyone is subject to the permanent bar in the situations described above. Timing of the deportation and reentry is of great importance. There are certain exceptions for aliens who entered the U.S. prior to April 1, 1997, the effective date of IIRIRA.

Effect of Previous Deportation

The Administrative Appeals Office (AAO) concluded in its 12/29/2011 decision that the applicant was not subject to a permanent bar, where the applicant was removed and subsequently reentered the U.S. illegally before April 1, 1997 and later concurrently filed I-485, Application to Adjust Status, and I-212, Permission to Reapply for Admission into the U.S.

The AAO confirmed in its recent decision that the permanent bar INA section 212(a)(9)(C)(i)(II) applies only to those aliens ordered removed before or after April 1, 1997, and who enter or attempt to reenter the U.S. unlawfully any time on or after April 1, 1997.

Therefore, individuals who reentered the U.S. before April 1, 1997 after a previous deportation are not subject to the permanent bar. Though very limited, this exception provides relief for certain aliens who have been present in the U.S. for many years. These individuals do not have to worry about the permanent bar but may be subject to other bars, for which they have to file waiver applications in order to obtain lawful status.

Effect of Unlawful Presence

Any alien who has been present in the U.S. unlawfully for an aggregate period of more than 1 year and enters or attempts to reenter the U.S. illegally is generally permanently inadmissible.

It is important to note that an individual’s unlawful presence periods are counted in the aggregate, meaning that one year of unlawful presence can accrue during multiple stays in the U.S.

Timing of unlawful presence is of the essence. Any period of unlawful presence accrued prior to April 1, 1997 does not count towards the period of time needed to trigger the permanent bar.

Therefore, an individual who has accrued more than 1 year of unlawful presence before April 1, 1997, leaves the U.S. and then reenters/attempts to reenter the U.S. without being admitted, is not subject to permanent bar.

In the situations described above, however, the permanent bar is not the only problem. One immigration violation can trigger several other bars including, but not limited to, 3- and 10-year bars for unlawful presence or 5-, 10 and 20-year deportation bars, etc.

The issues of unlawful presence and previous immigration violations are complex and require careful analysis by an immigration counsel. If you or your family members wish to immigrate to the U.S. but are concerned about previous immigration violations, contact our office for assistance.