Can I pursue PIP if I am subject to the permanent bar?

On August 19, 2024, USCIS finally released all of the details regarding the Parole in Place (“PIP”) program for the spouses of U.S. citizens. One of the lingering questions was whether individuals subject to the permanent bar under INA 212(a)(9)(C) would be eligible for the PIP program. In the details released, USCIS clarified some parts of the issue while leaving other parts still ambiguous.

The permanent bar under INA 212(a)(9)(C) applies to individuals who either:

• were unlawfully present in the United States for an aggregate period of more than 1 year or
• had been previously ordered removed from the United States.

If either of these facts applied to an individual, if they departed the U.S. and then reentered or attempted to reenter the U.S. without inspection, they would be subject to the permanent bar. This bar would make them inadmissible until they spent at least 10 years outside of the U.S., at which point they could seek permission to apply for lawful status.

The permanent bar has left many individuals in the U.S. unable to pursue lawful status despite having U.S. citizen immediate relatives. Many of these individuals were hopeful that this new PIP program would finally allow them to achieve lawful status without first being exiled for 10 years.

In addressing how the permanent bar affected the PIP program, USCIS provided the following information.

First, the program clearly does NOT cure the permanent bar. Even if an individual is granted PIP, they would still be subject to the bar and, therefore, unable to pursue a green card. Nevertheless, a grant of PIP can still give an individual up to 3 years of work authorization. Currently, there are no plans to extend grants of PIP beyond 3 years.

Second, if someone had previously been ordered removed from the U.S., they will NOT be granted PIP. This eliminates the possibility for any of the individuals subjected to the permanent bar because of a removal order.

Finally, for individuals subject to the permanent bar for 1 year of unlawful presence, it appears they MAY be eligible for the PIP program. In their FAQ, USCIS has stated that a brief departure from the U.S. will not be considered to have interrupted their 10-year continuous presence requirement for the PIP program. In this answer, they indicate that individuals who have departed the U.S. may have triggered the 212(a)(9)(C), however, they hint that such an individual may still be granted parole in place. As stated above, USCIS makes clear that such individuals would still be deemed inadmissible and, therefore, unable to pursue permanent residence. But they can potentially still be granted parole and work authorization for up to a period of three years. While this is a far cry from permanent residence in the U.S., some individuals may still consider it a great benefit.

Although USCIS’s vague guidance on this issue seems to indicate this possibility for individuals who are permanently barred due to unlawful presence, USCIS still may deny applications in their own discretion due to immigration history. Furthermore, the program could be terminated by a court or by the next president. Under a new presidential administration, immigration officials may decide to pursue anyone in the U.S. without status and the information gathered in the PIP program could potentially be used against them. As such, although PIP seems possible for these individuals, there are still risks involved.

In the end, whether an individual subject to the permanent bar wants to apply given the limited benefit of the program and given the risks associated with the application, is a highly individualized choice that each potential applicant will have to make with their family.  For those who want to have more information about the risks and limited benefit or how this program may apply to their own immigration story, please schedule a consultation with us today.