Family Immigration Petitions and the "Permanent" Bar

Hypothetical: A potential immigrant to the United States, Bill, came across the border illegally in 2005 and stayed with a family member in Idaho until 2008, after which he returned to his home country. After being unable to find work in his home country, Bill decided to return to Idaho where job prospects were much better. Bill was able to return to Idaho where he met Daisy, a citizen of the United States. 

Daisy and Bill fell in love and got married. Now, Daisy wants to help Bill to become a lawful permanent resident (green card holder). Can Daisy help Bill become a lawful permanent resident?

Unfortunately, no, she cannot. One of the harshest immigration laws in the United States is the “permanent bar.” Unfortunately, it is also one that is poorly understood, even by many attorneys.

Typically, a United States citizen can petition for their alien spouse’s status as a permanent resident in the United States. If the alien spouse has been in the United States illegally, then the alien spouse has accrued “illegal presence.” If they have more than six months of illegal presence they may need a waiver in order to overcome the penalty for this illegal presence. Please see www.my601waivers.com for more information about waivers illegal presence.

The permanent bar came about as a result of the immigration reforms under the Clinton administration in 1997. It states, basically, that if any person was unlawfully present in the United States for an aggregated of more than one year beginning on April 1, 1997, then leaves the United States (for whatever reason), and then returns to the United States, or tries to, they are ineligible for the majority of visas given by the United States. This penalty lasts forever. A discretionary waiver is only available after ten years of being outside of the United States. This permanent bar also applies to anyone deported who then attempts to re-enter. Please see the Immigration and Nationality Act, section 212(a)(9)(C)(i)(I) and (II).

There are a few narrow exceptions to this rule. The most common of these are U-nonimmigrant status, cancellation of removal (in immigration court), political asylum/withholding of removal under the convention against torture (CAT), and self-petitioners under the violence against women act (VAWA). This is not, of course, an exhaustive list of potential exceptions, and the exceptions themselves can be very narrow. Therefore, if you or your loved one has a “permanent bar” because of entering illegally after either one year of illegal presence or a deportation, they should discuss their case with an immigration attorney to see if one of the exceptions applies to them.