The Permanent Bar – The Cruel Reality of Crossing the U.S. Border Illegally More Than Once

What is a Permanent Bar?

When a person crosses the border without inspection – a.k.a. “EWI,” entry without inspection – they begin accruing unlawful presence immediately. If the person stays in the U.S. unlawfully like this for more than six months, they become inadmissible. This means that they cannot get a green card based on marriage to a United States citizen without first going through the process of applying for a waiver. The waiver application process is time-consuming, expensive, and extremely stressful. Now, if that person departs the U.S. for any reason and makes a SECOND EWI entry, they could potentially face the PERMANENT bar. The permanent bar is a non-waivable bar that requires a person to remain OUTSIDE of the United States for ten years before being allowed to request permission to return to the United States lawfully.

Let’s explore the cruelty of this bar with a hypothetical example:

Jose is from Mexico. He crosses the U.S. border EWI when he is 22 years old. He lives and works in the United States for two years, sending money back home to his family members. Then, his mother in Mexico falls gravely ill, and he decides to return to Mexico to be with her. After her passing, Jose knows he must return to the U.S. so his family in Mexico is able to survive. He makes a second EWI entry into the U.S. Jose is now 25 years old. He meets Tracy, a U.S. citizen, and they fall in love. They get married and start a family. After their son Matthew is born, Jose and Tracy decide they need to work toward getting Jose a green card so they can feel secure in their future together in the U.S. They feel encouraged when their I-130 Petition is approved, and – knowing that Jose has unlawful presence – they work hard to prepare a strong I-601A Provisional Waiver application. They are thrilled when the waiver is also approved. The last step in the process is for Jose to apply for his Immigrant Visa outside of the United States. He must return to Mexico and attend an interview at the Consulate in Ciudad Juarez before he can get the visa that will allow him to return to the United States and get his green card.

Jose leaves the United States for his interview. He feels confident because he has the I-601A Waiver approval notice with him. But at the end of the interview, Jose is told that because he has more than one EWI entry to the United States and had accumulated more than one year of unlawful presence in the United States, he has received the permanent bar. It does not matter that Jose was able to get an I-601A Waiver approved. Jose is now barred from returning to the United States for TEN YEARS. There is nothing he can file that will waive the permanent bar. He is literally stuck in Mexico, separated from Tracy and Matthew, for ten years. The family now faces a terrible dilemma. Tracy and Matthew can relocate to Mexico and reside there with Jose for ten years. Or, Tracy and Matthew can reside in the United States without Jose for ten years. (Remember, this family had an approved I-601A Waiver, which means the U.S. government acknowledged that the family would suffer extreme hardship in BOTH of those scenarios.) Either way, this family is now set to suffer for ten years, with no lawful options for Jose to return to the U.S. until the ten-year permanent bar has expired. Once those ten years are up, Jose can apply for permission to return to the U.S. to be with Tracy and Matthew, but there is no guarantee that his request will be approved.

The permanent bar is one of the cruelest and most frustrating policies in U.S. immigration law. It devastates families and causes suffering in the lives of U.S. citizens. Before beginning any immigration paperwork for yourself or an undocumented family member, be sure to determine if the permanent bar applies. Most immigration attorneys offer free consultations (including Caruso Law Group!), and it is vital that you are honest and provide a complete picture of your immigration history.