Did you know there are two different ten year bars and only one allows an individual to apply for a waiver?
In the last few months I have consulted with many individuals who would like to apply for the recently announced provisional waiver of unlawful presence. USCIS announced this program last month and it will take effect on March 4, 2013. However, only certain individuals with unlawful presence will qualify.
The “B” bar, also referred to as the “ten year” bar
Under Section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, a person who has resided in the United States for more than a year without permission, who then departs the country for any reason, is not admissible or eligible to receive a visa. Unlawful presence prior to turning eighteen is not counted against the applicant. This section of the law allows an individual to apply for waiver of inadmissibility if he/she can prove that his/her spouse or parent who is a lawful permanent resident or U.S. citizen will suffer extreme hardship if he/she is not granted lawful permanent resident status.*
For example: In 1985, John enters the U.S. as a child with his parents. They entered the U.S. without inspection or any valid visa allowing them to enter. In 2011, John marries Mary, who is a U.S. citizen. Mary files an I-130 petition for John based on their ongoing marriage and it is approved and forwarded to the National Visa Center. When John finally departs the United States to attend his consular interview he triggers this “B” bar, or “ten year” bar, thus requiring him to apply for a waiver of his inadmissibility. The provisional waiver process will allow John to apply for the hardship waiver before he departs to shorten the time he is separated from his wife and family in the United States.
The “C” bar, also called the “permanent” bar
Under Section 212(a)(9)(C) of the Immigration and Nationality Act, a person who resides in the U.S. for a year or more without permission and then departs and reenters the U.S. without inspection or valid visa (or attempts to enter the U.S. without inspection and is stopped at the border and turned back) is inadmissible for ten years. Unlawful presence as a minor will be counted when immigration calculates whether an individual has accrued a year of unlawful presence. This bar does not allow an individual to apply for any form of waiver, under any circumstance.
The “C” bar also applies to individuals who left pursuant to an order or removal, exclusion, deportation, or grant of voluntary departure and thereafter reenter the U.S. without inspection.
For example: In 1985, John enters the U.S. as a child with his parents. They entered the U.S. without inspection or any valid visa allowing them to enter. In 1999, John travels to Mexico to visit family that still resides in Mexico. After his visit, he reenters the U.S. again without inspection or a valid visa. John was unlawfully present for more than a year (from April 1, 1997 until his exit in 1999) and then reentered the U.S. without inspection. He is subject to the permanent or “C” bar and cannot apply for a waiver of his inadmissibility. He must reside outside the U.S. for ten years and then obtain permission to apply for admission.
It is important to make sure that you are eligible to apply for the provisional waiver before applying. I would recommend consulting with an immigration attorney to make certain that there are no other remedies available to you and that the provisional waiver process is your best option. Feel free to contact me to answer any questions you may have about whether either of these bars applies to you and, if so, which one.
*Please note: The provision waiver process is only available to certain immediate relatives of U.S. citizens, specifically spouses, parents of adult U.S. citizens, and minor children.
More information about unlawful presence and the inadmissibility bars under INA Sec. 212(a)(9)(B) and 212(a)(9)(C) can be found on the USCIS website.