COVID-19 Update: COVID-19 Vaccination Required Starting October 1 Read More

All Green Card applicants, who receive their medical examination from either a Panel Physician or a Civil Surgeon on or after October 1, 2021, will need to show evidence of vaccination for COVID-19, or provide a valid reason why they should not be held to the new requirement. See Full Details

Legal Consequences of Illegally Crossing the Border

Legal Consequences of Illegally Crossing the Border

As an immigration law firm, we are often asked the question “Is it a crime to enter the U.S. illegally?” The answer is yes. In this article, we will cover the details of immigration law, explaining why it is illegal to cross into the United States without following all relevant U.S. immigration rules and regulations.

Illegal entry into the U.S. is a federal crime that often comes with civil penalties. Illegally crossing the border into the United States has many consequences, such as deportation and bans on re-entry into the U.S. In this article, we review U.S. border crossing laws regarding unlawful entry and unlawful presence, the punishment for crossing the border illegally, and waivers of inadmissibility.

As of November 2021, there were a recorded 46.2 million immigrants, both legal and illegal, in the United States. The estimated number of undocumented immigrants in the United States is around 11 million people, the majority being from Mexico and Central America (67%), with the second-highest undocumented population coming from countries in Asia (15%).

At the start of the coronavirus pandemic, migrant encounters slowed, but they are once again on the rise, particularly at the U.S.-Mexico border. In fact, migrant encounters are at a 21-year record high, with 200,000 monthly total encounters between migrants and U.S. Border Patrol.

What Is Unlawful Entry?

Unlawful entry into the United States means that a person has entered the United States outside of immigration laws that allow legal entrance into the U.S. Unlawful entry is legally called improper entry.

What Is Unlawful Presence?

Unlawful presence is when a person stays in the United States after entering the U.S. unlawfully. There are two main ways to be in unlawful presence:

  1. Overstaying your visa
  2. Remaining in the U.S. after improper entry

If your visa has expired, you legally must leave the United States. However, there are exceptions to unlawful presence. Speak with your immigration attorney to find out if you may be exempt from the rule. Possible reasons for exemption include:

  • You were illegally in the United States as a minor
  • You are the victim of abuse or human trafficking
  • You have evidence showing you applied for an extension of stay in a timely manner

Of course, exceptional situations can be complicated, and you must show evidence that you can be exempted from the punishments associated with breaking immigration law. Talking with an experienced attorney about your situation is best if you are found inadmissible and are awaiting removal proceedings.

U.S. Border Crossing Laws in 8 USC 1325

Improper entry into the United States is a tricky legal situation. The immigration laws outlining improper entry fall under U.S. Code Title 8, Section 1325. They can also be found in the Immigration and Nationality Act (INA) Section 275.

The most typical depiction of improper entry is illegally crossing the border at an unguarded border crossing, but there are many ways that a person can face punishment for illegal immigration.

A person is considered to have illegally entered the U.S. if they:

  • Enter at a place without immigration officers present or at a location that is not a designated point of entry
  • Enter without being examined or inspected by immigration officers
  • Enter based on false or misleading information
  • Enter while willfully concealing facts or materials

Examples of illegal entry include lying on a visa application or providing false documents—or even a fake identification or green card.

Even while traveling to the United States by air or sea, you must provide identification that you are legally entering the country.

Is Unlawful Entry a Felony?

Yes, unlawful entry is a felony. And having a felony offense makes it extremely difficult to legally reenter the United States. A list of undocumented immigration civil offenses and violation consequences are listed below.

Punishment for Crossing the Border Illegally

The consequences of illegally crossing the border become harsher upon illegal re-entry. The number of times a person has illegally entered the U.S. determines how severe their punishment will be.  Punishments for reentry into the United States are found in 8 U.S. Code § 1325 and  8 U.S. Code § 1326.

Punishments for illegal crossings include criminal penalties for reentry as well as “reentry of certain removed” people, such as those removed due to a conviction of an aggravated felony, misdemeanors, crimes, and felonies that differ from aggravated felony.

First Punishment for Crossing Border Illegally

When a person is caught illegally crossing the border—lawfully known as an improper entry—the first offense may include:

  • Civil penalty fine of $50 to $250
  • Imprisonment for up to six months
  • Both fines and imprisonment

Second Punishment for Crossing Border Illegally

If a person is found re-entering the United States illegally, the civil penalty fine is twice the amount of the first fine. The legal penalties of subsequent reentry include:

  • A civil penalty fine
  • Imprisonment for up to two years
  • Both fines and imprisonment

Penalties for Improper Entry by Marriage Fraud

If a person gets married for the sole purpose of evading immigration laws—meaning they enter the U.S. based on marriage fraud—they may be:

  • Imprisoned for up to five years
  • Fined up to $250,000
  • Both fined and imprisoned

Penalties for Improper Entry by Entrepreneurship Fraud

If a person fraudulently establishes a business to avoid immigration laws, they may be:

  • Imprisoned for up to five years
  • Required to pay civil penalty fines
  • Both fined and imprisoned

Reentry With Additional Crimes

8 U.S. Code § 1326 outlines the legal consequences for people who have come to the United States under improper entry and who have committed other crimes. Punishment for illegal immigration along with committing other crimes may include the following:

  • If deportation happened with a conviction of three or more misdemeanors, such as crimes involving drugs or other felonies, the consequences may be:
    • Fines
    • Up to 10 years in prison
    • Both
  • If the conviction was aggravated felony, the consequences may be:
    • Fines
    • Up to 20 years in prison
    • Both
  • There are nonviolent offenders with prison sentences—if the person attempts to reenter the United States unlawfully, not having fully served their sentence, they will be:
    • Fined
    • Imprisoned for up to 10 years
    • Both
    • Made to finish the rest of their sentence without parole

Waiver of Inadmissibility

If you have been found inadmissible to enter the United States, you may be eligible to fill out and file Form I-601A or Form I-601, Waiver of Inadmissibility. There are two types of Provisional Unlawful Presence Waivers.

Form I-601A asks United States Citizenship and Immigration Services (USCIS) to waive the three- or ten-year ban, thus allowing families to remain together.

Form I-601 is for those individuals who are found inadmissible because of certain circumstances, such as health, lack of a labor certificate, poverty, and more.

If you are found inadmissible, your reason for inadmissibility will determine which form of waiver you submit to USCIS. Speak with your immigration attorney as soon as possible to determine if you are eligible to request a waiver of inadmissibility.

What Is INA Section 245?

Under the Immigration and Nationality Act Section 245(i), immigration law gives certain eligible people who have participated in crossing the border illegally a chance to adjust their status. Adjusting status means becoming a lawful permanent resident, even if the person entered the U.S. illegally.

Undocumented immigrants who submitted an immigrant petition on or before April 30, 2001, are eligible for a Section 245(i) green card. Speak with your immigration attorney to see if you fit the qualifications for this part of immigration law.

Coming to the United States Legally

Coming to the United States legally can be a confusing process. The legal system of immigration law can be stressful and needs to be met with precision and detail. That is why it’s always a good idea to work with a knowledgeable and experienced immigration attorney who can help you legally immigrate to the U.S.

You can come to the United States in two main ways:

  1. Immigration visas/green cards
  2. Non-immigrant visas

An immigrant visaalso called a green card—is for people who permanently live and work in the United States. A nonimmigrant visa is a visa that grants a temporary stay in the United States. There are many different types of visas within these two visa categories, and each one comes with its own set of forms and required evidence from you.

Working with an immigration lawyer for your green card or nonimmigrant visa can help ease the application process. We can help you find the right immigrant or nonimmigrant visa for you to legally come to the United States.

We know how important your immigration case is. Each of our team members has experience fighting for laws to help immigrants create a life here in the United States. For us, immigration cases are personal, which is why you can trust us to support and help you with your immigration journey.

Contact an Experienced Immigration Attorney

The immigration attorneys at Scott D. Pollock & Associates, P.C. have been serving our clients for over 30 years.  We provide legal representation to those who wish to come to the United States and are eligible for a visa. Stay up to date with us if you have questions like “What is the current law on illegal immigration?”

Talk to us to discuss your path to legal entry into the United States. Whether it’s helping you learn more about your green card eligibility, handing removal proceedings, or representing you on any immigration matter, we are here for you every step of the way.

Call us at 312.444.1940 or fill out an online form today. We look forward to hearing from you!

We're looking forward to hearing from you!