Zulma Lopez

Zulma Lopez

Wednesday, June 1, 2016

Should you be worried about the Immigration “Permanent Bar"?

In this article, I will explain in simple terms what the immigration permanent bar looks like in a very specific context within family immigration. It is an ominous sentence that no family immigration lawyer wants to discuss with otherwise well-deserving families at their consultations. Two back-to-back recent consultations prompted this topic which is better discuss with an example. 

Jose, a nineteen year old, had no money or financial assistance to attend college in his home country. He worked long hours as a lumberjack for little pay that barely covered food and shelter expenses. In 1998, he came to the United States without a visa and was immediately hired by a construction company. In 2005, his mother became ill and he went back home to see her before her passing. He came back into the country a week later without a visa, and continued working with his same employer. A year later he met his future wife, Jennifer, an American citizen. It is now 2016, and Jose and Jennifer have two children. Jennifer is a stay-at-home mom, while Jose continues to work in construction where he is highly respected for his work ethic. Jose has never been arrested, has never used a fake name to work or otherwise, and has filed his taxes using his real name and tax Id. They are now sitting across from me and Jennifer is expressing how eager she is to finally file immigration papers for her husband after saving the money to hire an attorney. 

What Jennifer is about to find out is that Jose has an immigration permanent bar and the only way for him to overcome it is to leave the United States and his family for ten years. But how is this possible if I am a U.S. citizen and he has been my husband for ten years and we have two American children? How about my parents, they love Jose as if he were their son, they can write a letter in support of his case. How about if his boss writes a letter? His boss is a U.S. citizen and has his own construction company, and is willing to write to immigration in support of Jose, will that help? None of it will. 

One instance of this ill-conceived creature of an amendment to immigration law in 1997 is that the permanent bar will attach in the following context:

U.S. entry without a visa → stay in the U.S. >1year → depart U.S. and re-entry w/o visa = Permanent Bar

Families are typically stunned that this is how the immigration permanent bar applies to their case. In particular, American citizens cannot believe that their beloved husbands or wives could be penalized in such a way under our current immigration laws, and that there is nothing they can do about it. This is how the family at my first consultation felt when I explained to them how the permanent bar applied to them. They left teary-eyed, dazed and confused as reality slowly sunk in. But you may be thinking there must be a way to overcome this permanent bar in this scenario, right? This brings us to the ordeal the couple at my second consultation have endured, and the following questions they faced:

Is there an immigration waiver available for the Immigration Permanent Bar?
Does the Immigration permanent bar expire? Can it be pardoned or excused?

Continuing with our hypothetical example, there is only one way for Jose to overcome his immigration permanent bar. He will have to first leave the United States for 10 years, and then ask immigration permission to re-enter the U.S., but only after he has completed 10 years outside of the country. It is also entirely discretionary for immigration to approve this permission for re-entry. Which means that spending ten years outside of the U.S. is not enough to cure the immigration permanent bar. Jose will still have to show strong equities in his favor, such as having a family in the U.S. and the lack of a criminal record.  

These strong equities is what I am now preparing to show immigration in the case of the family from my second consultation. This couple hired an attorney who unfortunately did not understand the fatal consequences of the immigration permanent bar. He wrongly advised them to move forward with their immigration petition without telling them that the husband was going to be penalized by being stuck outside of the U.S. for ten years! Since then, the American citizen wife has traveled every four months to see her husband abroad for the past decade, and they have miraculously kept their relationship strong against all adversity. 

As I reflect on these two well-deserving families and their immigration journeys, I encourage you to consult with a knowledgeable attorney before filing any family immigration petition. The permanent bar is nowhere explained in the free downloadable immigration forms you find online. Moreover, this is not the only context in which the permanent bar or other immigration bars apply. Only an experienced immigration attorney will be able to tell you whether you have triggered the permanent bar or other immigration bars, and what is the best course of action based on your particular circumstances. Call us today.  

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