Legal Consequences of Illegally Crossing the Border
Unlawfully entering the United States carries serious legal consequences, including criminal charges, deportation, and multi-year bars on reentry. The severity of those consequences depends on factors like how many times a person has entered the country illegally, whether fraud was involved, and whether prior removal orders exist.
This article covers U.S. border-crossing laws under 8 USC 1325, the penalties for unlawful entry and reentry, and options for those who have been found inadmissible but would still like to pursue legal immigration to the United States.
What Is Unlawful Presence?
Unlawful presence occurs when a person enters the U.S. without being admitted or paroled, or remains in the country after their authorized period of stay has expired. There are two main ways this happens: overstaying a visa, or remaining in the U.S. after improper entry.
Certain individuals may be exempt from unlawful presence consequences. Possible grounds for exemption include:
- Being present in the U.S. as a minor
- Having a pending asylum application
- Being a victim of abuse or human trafficking
- Having applied for an extension of stay in a timely manner
Situations involving unlawful presence can be legally complex, and demonstrating eligibility for an exemption requires supporting evidence. Anyone facing inadmissibility or removal proceedings should consult an immigration attorney for advice regarding their specific circumstances.
U.S. Border Crossing Laws in 8 USC 1325
Federal immigration law governing improper entry falls under U.S. Code Title 8, Section 1325—also codified as Section 275 of the Immigration and Nationality Act (INA). While the most common image of unlawful entry involves crossing an unguarded stretch of the border, the statute covers a broader range of conduct.
A person is considered to have improperly entered the U.S. if they enter:
- At a location that is not a designated point of entry or where no immigration officers are present
- Without being examined or inspected by immigration officers
- Based on false or misleading information
- While willfully concealing material facts
This includes conduct like lying on a visa application, presenting false documents, or using fraudulent identification, whether arriving by land, air, or sea.
First Offense: Improper Entry
A first offense for improper entry under 8 U.S. Code § 1325 may result in:
- A civil penalty fine of $50 to $250
- Imprisonment for up to six months
- Or both
Penalties for Marriage Fraud
Entering the U.S. on the basis of a fraudulent marriage—a marriage entered into solely to evade immigration laws—carries significantly steeper consequences:
- Imprisonment for up to five years
- A fine of up to $250,000
- Or both
Penalties for Entrepreneurship Fraud
Fraudulently establishing a commercial enterprise to circumvent immigration laws is similarly penalized:
- Imprisonment for up to five years
- Civil penalty fines
- Or both
Second Offense: Illegal Reentry
Illegal reentry is governed by 8 U.S. Code § 1326. Penalties for a subsequent unlawful entry include:
- A civil penalty fine
- Imprisonment for up to two years
- Or both
Reentry After Removal for Additional Crimes
Penalties increase substantially when a person reenters after being removed in connection with a criminal conviction.
- Removal following three or more misdemeanor convictions involving drugs or other crimes can result in fines and/or up to 10 years in prison
- Removal following an aggravated felony conviction can result in fines and/or up to 20 years in prison
- Nonviolent offenders with unserved sentences can result in fines, up to 10 years in prison, and/or completion of the remaining sentence without parole
Waiver of Inadmissibility
Individuals found inadmissible may be eligible to file for a waiver, depending on the grounds of their inadmissibility. Two forms are commonly used:
- Form I-601A, Provisional Unlawful Presence Waiver asks USCIS to waive the three- or ten-year reentry bar, allowing qualifying individuals to remain with their families in the U.S. while their immigrant visa is processed abroad.
- Form I-601, Application for Waiver of Grounds of Inadmissibility covers a broader range of inadmissibility grounds, including health-related grounds, lack of a labor certification, and public charge determinations.
The appropriate form depends on the specific grounds of inadmissibility. An immigration attorney can help determine which waiver applies and whether the eligibility requirements are met.
Adjustment of Status Under INA Section 245(i)
Section 245(i) of the Immigration and Nationality Act allows certain individuals who entered the U.S. unlawfully to apply for adjustment of status without first leaving the country.
Eligibility is limited to individuals who were the beneficiary of an immigrant petition or labor certification application filed on or before April 30, 2001. While that cutoff was set by statute, some individuals may still qualify based on petitions filed on their behalf decades ago. An immigration attorney can help determine whether this provision applies to your particular situation.
Coming to the United States Legally
For those who entered unlawfully or are currently unlawfully present in the United States, there may still be a path to legal status. U.S. immigration law provides two primary categories of lawful entry: immigrant visas (green cards), for those seeking to permanently live and work in the United States, and nonimmigrant visas, which authorize a temporary stay. The right pathway depends on individual circumstances, and navigating the options requires careful attention to eligibility requirements and procedural details.
Scott D. Pollock & Associates, P.C. has represented clients in immigration matters for over 30 years. The firm’s attorneys handle deportation defense, removal proceedings, adjustment of status, and a full range of immigration cases for clients nationwide.
Contact an Immigration Attorney
Those facing unlawful presence, removal proceedings, or questions about their legal options deserve experienced counsel. Call Scott D. Pollock & Associates, P.C. at 312.444.1940 or fill out our online contact form today to discuss your situation with an experienced immigration attorney.
