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EWI: Entry Without Inspection

Over the past decade, the United States has dramatically increased border security, and yet many people still enter the U.S. illegally without inspection each year. Entry without inspection (EWI) occurs any time a foreign national crosses into the U.S. without presenting themselves at a border checkpoint and obtaining permission to enter the country. Entering the U.S. without inspection is a serious offense that can result in jail time, deportation, and bar many forms of immigration relief.

Improper Entry vs. Unlawful Presence

Under federal law, a foreign national who enters the U.S. illegally commits the crime of improper entry. Improper entry can be punished by up to six months in jail and a fine of up to $250. However, once an individual has illegally border jumped and is living in the U.S., their unlawful presence is a civil offense, rather than a criminal offense. It is important to note that unlawful presence also occurs any time a foreign national overstays a visa, even if he or she originally entered the U.S. legally. Individuals who are unlawfully present in the U.S. face detention and deportation, as well as negative immigration consequences if they want to re-enter the U.S. in the future.

What Are the Consequences of Border Jumping?

Border jumping can cause both immediate and delayed consequences. Immigrants who enter the U.S. without inspection can be immediately detained and deported, and further down the road they may be barred from applying for legal status. 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.

However, if the foreign national voluntarily leaves the U.S., he or she can apply for admission back into the U.S. after being abroad for either three or ten years. The three and ten year bars apply under the circumstances outlined below:

  • Three-Year Bar: Individuals who were unlawfully present in the U.S. for more than 180 days but less than one year, and who voluntarily left the U.S., must be abroad for at least three years before legal admission to the U.S. can be granted.
  • Ten-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 ten years.

Note that the three and ten-year bars are only applicable to foreign nationals who voluntarily left the Unites States. Individuals who were deported, or left after being ordered to leave, may be permanently barred from returning.

However, there's an exception to the three and ten-year bars for "extreme hardship". Foreign nationals who were unlawfully present in the U.S. and subject to either bar may be able to obtain a waiver if they can show that being barred would result in extreme hardship to their spouse, son, daughter, or parent, who is a U.S. citizen or legal permanent resident. While the term "extreme hardship" isn't explicitly defined, USCIS generally considers factors such as ties to the U.S. and financial and medical conditions.

Repealed Law: Section 245(i)

Do you think that the three and ten-year bars are too harsh? Some lawmakers thought so and decided to implement section 245(i) of the Legal Immigration Family Equity Act (LIFE Act). This section allows individuals who were inadmissible due to unlawful presence issues to apply for a visa while still in the U.S. if they pay a $1,000 penalty and meet the following requirements:

  1. The applicant was present in the U.S. before December 19th, 2000, and
  2. Filed a family or employment based residency petition by April 30th, 2001 (or was the derivative beneficiary of such a petition)

Section 245(i) also provides another important loophole for unlawful entrants – the grandfather clause. Before the grandfather clause, undocumented immigrants were only allowed to submit their green card application after a visa became available. However, the grandfather clause of section 245(i) allows individuals who had an immigration petition (or a labor certificate application) filed before January 14th, 1998 to stay legally in the U.S. while they wait for a visa to become available.

Additional Resources

Have an Immigration Attorney Evaluate Your Case for Free

Immigration law changes frequently, and exceptions that aren't outlined above may be applicable to your case. If you entered the U.S. without inspection and are trying to obtain a visa, contact a local immigration lawyer for case specific help. Get a head start by having an immigration attorney do an initial evaluation of your case at no charge.

Next Steps
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