Unlawful Presence vs. Unlawful Entry

 Posted on December 01, 2016 in Immigration

It is an extremely common misconception that as soon as someone spends one minute in the United States without status, he or she immediately becomes a criminal. This is simply not the case under immigration law. However, entering the country without inspection is a different matter—one is a crime, and one is not. There is a difference between civil and criminal law. While many civil offenses may still render you deportable, it is not guaranteed, especially if you have done nothing unlawful before or since.

Unlawful Entry

Unlawful entry into the United States, also known as entry without inspection, is a crime. It is a misdemeanor under U.S. criminal law—not immigration law—to enter the country without inspection by immigration officers (for example, by running across the border, or hiding in the trunk of someone’s car), or to lie or otherwise falsify information during an inspection. The first unlawful entry is punishable by either a fine, which is still classified as a criminal penalty, or by up to six months of imprisonment. The second increases the imprisonment period to two years.

If you have been deported after an unlawful entry, the penalties become even more stiff. If you are caught after deportation for crimes of moral turpitude (a vague, ever-expanding category of crimes), you may be fined and/or imprisoned for up to 10 years, while someone caught after being deported for an aggravated felony—generally a crime that displays a disregard for human life or honesty—can be imprisoned for up to 20 years. The stakes are very high. As such, reentry after deportation is strongly discouraged, both by U.S. Citizenship & Immigration Services (USCIS) and by most attorneys.

Unlawful Presence

By comparison, unlawful presence in the United States is not a crime; rather it is a civil infraction. The distinction is fine but important—unlawful presence will not show up on a criminal record, nor will it trigger many immigration penalties unless it goes along with criminal acts. An undocumented person has not necessarily committed a crime, despite popular rhetoric on the subject. Deportation is not a criminal punishment, but it can be a civil punishment.

One area where unlawful presence can significantly affect your immigration status, however, is if you are residing in the U.S. and either wish to re-enter after leaving, or adjust status to permanent resident. Adjustment of status from within the country is generally only available to those in legal status of which to begin. Thus, if you have accrued unlawful presence beyond a set period—for most visa types, six months—you will either have to leave the country and apply for the appropriate status, or successfully apply for a waiver of unlawful presence. These are not often granted; however, it does happen and is generally worth a try in most cases.

Contact an Immigration Attorney

If you have entered without inspection, or built up unlawful presence, you need the experienced advice of a knowledgeable attorney. The skilled Chicagoland immigration attorneys at Mevorah & Giglio Law Offices can provide answers to some of the questions you no doubt have about this process. Contact us today to set up an initial appointment.