Can the permanent bar based on unlawful presence apply to children?

The permanent bar is one of the harsher punishments under immigration law created to punish certain noncitizens that have been present in the United States without lawful status. The punishment is for life where the noncitizen had been physically present in the United States for a period of one year or more or where a noncitizen was previously removed also known as deported from the United States. The bar is triggered when the noncitizen either after departure from the United States or removal, attempts to re-enter or enters the United States without being inspected and admitted by an immigration officer. We discuss the permanent bar based on unlawful presence here. We also discuss the permanent bar based on a prior removal order here.

The issue with respect to children arises out of a similar bar based on unlawful presence which applies a three-year bar on noncitizens who resided in the United States without status for more than six months, but less than one year, or a ten-year bar on noncitizens who were present in the United States without status for more than one year. These two bars activate upon the noncitizen’s departure from the United States. The confusion then lies where the ten-year bar is similar to the permanent bar where they both contain the element of physical unlawful presence of one year or more, but where the permanent bar activates after the noncitizen departs the United States and subsequently attempts or actually re-enters the United States without being inspected or admitted.

Because the ten-year bar and permanent bar are so similar, it was assumed that an age restriction that applies to the three- and ten-year bars also applied to the permanent bar. The age restriction indicates that children under the age of 18 years of age never accumulate unlawful presence. In that scenario, a child could have lived in the United States for 10 years. As long as the child lived those ten years before turning 18 or as long as the child did not accumulate at least 6 months of unlawful presence after turning 18, the child would not be subject to either the three- or ten-year bar.

Until some years ago, consulates and the United States Citizenship and Immigration Service, “USCIS” interpreted the age restriction to apply to the permanent bar as well where they would not apply the permanent bar to children who did not accumulate unlawful presence after the age of 18. However, this changed where it appears that most if not all consulates as well as USCIS field offices will now apply the bar based on the reasoning that the age restriction only applies to the three- and ten-year bar because it is specifically mentioned in their section of the immigration law. Therefore, since the age restriction is not mentioned in the section of law defining the permanent bar, the age restriction does not apply to the permanent bar where the permanent bar can be applied to minors who accumulated unlawful presence before turning 18 years of age.

It is therefore important, even if you think you may qualify for a green card through a family member to have an immigration attorney to review your case to determine if this or any other bar applies to you.