EWI: Entry Without Inspection

Over the past decade, the United States has dramatically increased border security. Yet many people still enter the U.S. without inspection each year.

This article gives a comprehensive and easy-to-understand guide for those facing EWI issues.

Remember, entering the U.S. without inspection is a serious offense. This act can result in jail time, removal proceedings, and deportation and could bar forms of relief.

Improper Entry vs. Unlawful Presence: Understanding Immigration Status

Under federal law, a foreign national who enters the U.S. illegally commits the crime of improper entry.

According to Immigration and Nationality Act (INA), a foreign national who committed the crime of improper entry into the U.S. is punishable by law. The first offense can lead to six months of imprisonment and a $250 to $5,000 fine. But once a person has illegally entered and is living in the U.S., their unlawful presence is a civil offense rather than a criminal offense.

It is also important to note that unlawful presence is when a foreign national overstays a visa, even if they initially entered the U.S. legally. Individuals who are unlawfully present in the U.S. face detention and deportation. This act can also bring negative immigration consequences if they want to re-enter the U.S. or apply for resident status in the future. An immigration court can bring up these issues, and then an immigration judge will decide.

What Are the Consequences of Border Jumping?

Border jumping can have both immediate and long-term consequences. Immigrants who enter the U.S. without inspection can be immediately detained and deported. Further down the road, the U.S. may bar them from applying for legal status.

The Department of Homeland Security (DHS) and its components often handle these cases. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), a person who enters the U.S. without permission is "inadmissible," meaning that they are generally ineligible to adjust status (or apply for a visa) while still in the United States.

The DHS and immigration officers can start deportation proceedings. The proceeding begins with a notice to appear sent to the foreign national in question.

When Can You Return to the U.S. Legally After Border Jumping?

If the foreign national takes a voluntary departure from the U.S., they can apply for admission back into the U.S. after being abroad for three or ten years. The three and 10-year bars apply under these circumstances:

• Three-Year Bar: Individuals unlawfully present in the U.S. for over 180 days. But those who exercised voluntary departure after less than one year of unlawful presence must stay abroad for at least three years. They must stay overseas for three years before the United States can grant them legal admission. The immigration services carefully monitor this period.

• 10-Year Bar: Individuals who were unlawfully present in the U.S. for one year or more and then voluntarily left the country may not seek admission to the U.S. for at least 10 years. This period is also known as the year of unlawful presence.

Note that the three and 10-year bars only apply to foreign nationals who voluntarily left the United States. The U.S. may permanently bar people who faced deportation or who left after they received an order to leave. So, it is crucial to understand the period that applies to your case.

But there's an exception to the three and 10-year bars for "extreme hardship." If foreign nationals, who were unlawfully present in the U.S. and subject to either bar, can show that the bar would cause extreme hardship to their family member, they may get an unlawful presence waiver. The family members can be a spouse, son, daughter, parent, U.S. citizen, or legal permanent residents.

While "extreme hardship" isn't explicitly defined, USCIS generally considers other factors. This includes ties to the U.S. and financial and medical conditions.

Can You Adjust Status if You Entered Without Inspection?

Generally, people who enter the U.S. without inspection cannot change their status to a lawful permanent resident (LPR) or a green card holder. But, certain exception applies to this rule under section 245(i) of the Legal Immigration Family Equity Act (LIFE Act). The LIFE Act allows some people who wouldn't usually be allowed to enter the U.S. due to illegal residency to request an adjustment of status while still in the country. The Act provided certain conditions, which include the following:

1. The visa applicant is a beneficiary of an immigrant petition through family petition, employment-based or labor certification. And that petition was filed on or before April 30, 2001.
2. If someone filed the family visa or employment-based petition between Jan. 15, 1998, and April 30, 2001. And the visa applicant was present in the United States on Dec. 21, 2000.
3. Upon payment of a fine amounting to $1,000.

Immediate relatives of U.S. nationals who entered the country without inspection may also be eligible to apply for a waiver. For instance, they can present an Application for Waiver of Grounds of Inadmissibility (Form I-601) to the consular office in their home country. This form will then go to a USCIS officer for adjudication.

People with EWI who received Temporary Protected Status may also apply for a change of status. The application is possible under certain conditions. According to the matter of Arrabally and Yerrabelly, the U.S. will not bar people who left the country temporarily under advance parole from reentering.

Are There Special Considerations for Cases of Withholding of Removal and Asylees?

Yes. Those undergoing withholding of removal or asylees may have unique conditions of EWI. In assessing cases that involve these people, the Board of Immigration Appeals (BIA) or an immigration judge is sometimes involved.

Withholding of Removal

Withholding of removal, otherwise known as "withholding of deportation," is a form of relief given to noncitizens who show a clear possibility of facing persecution in their home country. The basis for persecution should be religion, nationality, race, political opinion, or membership in a social group. If a person is granted this relief, the DHS cannot send them back to their home country.

Asylees

Asylees are those provided with asylum or refugee status. They can stay in the U.S. because of a well-founded fear of persecution. A person who initially entered the country without inspection and later had their status adjusted to that of an asylee may receive permission to stay in the country. They may also earn lawful permanent residence. Although these special conditions may help, they do not guarantee LPR status or citizenship. Each case is unique, and evaluators base their judgments on its merits.

Contact an Immigration Attorney Near You

Immigration law can be challenging to navigate. The legal advice of an immigration lawyer helps you better understand your eligibility to stay in the country.

Whether you entered the U.S. without inspection, are a noncitizen facing grounds of inadmissibility, or are a respondent undergoing removal proceedings, it is recommended that you seek legal help.

Dealing with these issues could have detrimental consequences. Notably, on your chance to get a lawful status or a nonimmigrant visa in the United States. An immigration lawyer can also discuss the potential for cancellation of removal and help you understand the complexities of naturalization.