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Immigration Consequences of Illegal Entry

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018 (last modified Oct 25, 2019)

What is illegal entry?

An illegal entry is an entry, which is not authorized by law, into the United States.  Entering the United States outside of a designated port of entry, or at a time other than the designated time for that port of entry, or without inspection, constitutes illegal entry.

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What are the immigration consequences of illegal entry?

Nonimmigrants, who enter the United States illegally, start accumulating days of unlawful presence on the day they arrive in the country. See Consequences of Overstaying in the United States.

Any nonimmigrant, who (a) has accumulated over one (1) year of unlawful presence aggregated over all visits to the United States or (b) has been previously removed from the United State, who then illegally enters, or attempts to enter, the country would become permanently inadmissible.

Undocumented immigrants cannot adjust their status to that of a permanent resident while in the United States. That prohibition amounts to a serious consequence resulting from the days of unlawful presence that they have accumulated while in the country.  Undocumented immigrants, who have accumulated no more than 180 days of unlawful presence and are not otherwise inadmissible, may be able to leave the country and come back after securing a visa at a U.S. consulate. Undocumented immigrants, who have accumulated more than 180 days of unlawful presence in the United States, may be inadmissible for 3 or 10 years or permanently, depending on the circumstances.

Individuals subject to the 3-year or 10-year bar on admissibility, due to unlawful presence, may be able to obtain a waiver of their inadmissibility. To do that, they must show that the denial of the waiver would work “extreme hardship” to their citizen or permanent resident spouse or parent. Individuals subject to the permanent bar on admissibility must wait outside of the United State for 10 years before they may request a waiver by using the Application for Permission to Reapply for Admission into the United States after Deportation or Removal (Form I-212).

Example 1. On May 10, 1999, John sneaks into the United States (i.e., enters the country without inspection). He leaves on May 11, 2000 (one year and one day later).  In June of 2002, John sneaks back into the United States. He is now permanently inadmissible, because he entered the country illegally after accumulating more than one (1) year of unlawful presence.

Example 2. On May 10, 1999, John sneaks into the United States.  He leaves on May 10, 2000. In June of 2002, John sneaks into the United States again. He is not permanently inadmissible, even though he entered the country illegally after accumulating one (1) year (not more than one year) of unlawful presence; but, John is inadmissible for 10 years, because he has accumulated one (1) year of unlawful presence (in one visit).  INA § 212(a)(9)(B)(i)(II).

Example 3. On May 10, 1999, Laura sneaks into the United States.  She leaves four (4) months later. Then again, on February 10, 2000, she sneaks into the country again. She leaves on August 20, 2000. By then, she has accumulated over one (1) year of unlawful presence.  In June of 2002, Laura sneaks into the United States again. She is now permanently inadmissible, because she entered the country illegally after accumulating more than one (1) year of unlawful presence in aggregate.

Example 4. On May 10, 1999, Jena sneaks into the United States.  She leaves three (3) months later. She is still not inadmissible and would be eligible to apply for a visa at a U.S. consulate overseas.

Example 5. On May 10, 1999, Ed sneaks into the United States.  He falls in love with Margaret, a U.S. citizen, and they marry in 2002.  Margaret files a family-based immigration petition on behalf of Ed as the spouse of a U.S. citizen. The USCIS approves the petition. However, Ed cannot adjust his status and receive a green card in the United States, because he has entered the country illegally (some exceptions are available). Ed has to leave the country and apply for a visa at a U.S. consulate overseas; but, the consulate cannot issue a visa to Ed, because he has accumulated one (1) year or more of unlawful presence.  Ed's best available option would be to obtain a waiver of his inadmissibility due to unlawful presence. See Application for Provisional Unlawful Presence Waiver.

Example 6. On May 10, 1999, Ed sneaks into the United States.  He leaves the country in June of 2000, and sneaks back into the country a month later.  Ed falls in love with Margaret, a U.S. citizen, and they marry in 2002.  Margaret files a family-based immigration petition on behalf of Ed as the spouse of a U.S. citizen. The USCIS approves the petition. However, Ed cannot adjust his status and receive a green card in the United States, because he has entered the country illegally (some exceptions are available). Ed has to leave the country and apply for a visa at a U.S. consulate overseas; but, the consulate cannot issue a visa to Ed, because Ed entered the country illegally after accumulating more than one (1) year of unlawful presence and, therefore, he is permanently inadmissible.  Because Ed is permanently inadmissible, he has to wait 10 years outside of the United States and then seek a waiver using Application for Permission to Reapply for Admission into the United States after Deportation or Removal (Form I-212).

Example 7. On May 10, 1999, Ed sneaks into the United States.  A week later, he meets Margaret, a U.S. citizen. They fall in love and marry two (2) months later. Margaret files a family-based immigration petition on behalf of Ed as the spouse of a U.S. citizen. The USCIS approves the petition.  Meanwhile, Ed leaves the country on November 1, 1999. The USCIS forwards the approved petition to Department of State for consular processing overseas.  Ed is not inadmissible. He can go to the U.S. consulate overseas and apply for his immigrant visa (green card) to the United States.

Under limited circumstance, nonimmigrants, including undocumented immigrants, may not be subject to accumulation of days of unlawful presence or may adjust status, or obtain other immigration benefits, despite such accumulation. To explore possible immigration remedies which may be available, please consult an immigration attorney.

Related Topics:

Criminal & Civil Penalties for Illegal Entry into the United States

Consequences of Overstaying in the United States

Application for Provisional Unlawful Presence Waiver

Application for Waiver of Grounds of Inadmissibility

 

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