FAQ on EWI: Entry Without Inspection

 Posted on February 09, 2017 in Immigration

When someone seeks to enter the United States, he or she almost always does so with inspection—that is, at a mandated border checkpoint, bearing the correct entry document (and visa, if necessary). However, for some, this is not an option for a variety of reasons. Some are not even aware that they are committing an immigration infraction. Given the stated goals of the incoming administration, it is a good idea for you and yours to be absolutely certain of your immigration status and take steps to remedy any deficiency.

The Consequences Are Severe

Contrary to popular perception, those who are found to have entered the U.S. without inspection suffer numerous consequences, though they may not wind up behind bars. Those who are in the U.S. without inspection begin to accrue what is referred to as unlawful presence, from the moment they enter the country. This is the case even if they are not exposed as having entered the country illegally. Thus, whenever their status is exposed, they may have years upon years of unlawful presence accrued, which can be used against them, such as denying an application to adjust status (even with U.S. citizen relatives).

The reason for this is that anyone who enters without inspection is deemed inadmissible to the United States (technically, the person was never ‘admitted’ to begin with, so he or she cannot be deportable) due to the fraud displayed in entering without inspection. It is important to remember that unlawful entry is a crime, while mere unlawful presence is not (for example, if you entered the country legally, on a valid visa, but overstayed after it expired). In other words, overstaying will have civil consequences, while entering without inspection may have criminal penalties.

A Waiver May Be Possible

The Immigration & Nationality Act (INA) holds that if a person is unlawfully present in the U.S. for any period between 180 days and one year, then he or she is subject to what is referred to as the 3-year bar if he or she leaves the country—the individual is not eligible to get permission to return for at least 3 years.

If unlawful presence is accrued totaling longer than a year, the person earns a 10-year bar. In some cases, it may become permanent. Most of the time, the person must leave the U.S., wait out the bar, and then re-apply for entry at the relevant consulate abroad. However, in some situations, unlawful presence may be waived from within the United States.

It is understood that while the waiver discusses only unlawful presence, it encompasses unlawful entry if granted . Hence, if you are granted an unlawful presence waiver, you will not then be immediately placed into custody for an unlawful entry. That said, the standard to qualify for a provisional unlawful presence waiver while still in the United States is extremely high. You must be able to show that your absence would cause “extreme hardship to your U.S. citizen or LPR spouse or parent,” which is much harder than it sounds.

Seek Knowledgeable Legal Assistance

If you have entered the U.S. without inspection, it is important to understand that you may be in significant trouble in terms of your ability to remain. You may be eligible for a waiver, or you may have to leave the country. Either way, consulting an attorney versed in immigration law is a good idea. The Chicagoland immigration lawyers at Mevorah & Giglio Law Offices can help you figure out the best path for you and yours. Contact us today to set up a free consultation.