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.