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The Hidden, Unforeseen Consequences of Alien Smuggling on Visas

| Feb 3, 2016 | Visa Issues |

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Criminal convictions and fraud/misrepresentation before the government are not the only ways to run afoul of the immigration laws and jeopardize an application for permanent residence or immigrant visa. One often overlooked ground of inadmissibility is alien smuggling. One reason why people tend to miss this ground is that alien smuggling is traditionally perceived as something you might see on TV where a corrupt coyote is pushing a child into the back of a van or the trunk of a car. This is obviously conduct that would meet the definition. But the language of INA 212(a)(6)(E) is surprisingly quite expansive and captures a broad range of behavior: “In general-Any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.” There is no reference to monetary compensation or pecuniary gain, so one does not need to be paid money to be considered an alien smuggler under the immigration law. Under this definition, a mother accompanying her minor child as they are crossing the border into the US could conceivably trigger this provision. One would think that the entry without inspection is already a legal issue-and it is-but in some instances, an individual who has entered without inspection may still be eligible for a provisional I-601A waiver if he/she is an Immediate Relative of a US Citizen and can demonstrate extreme hardship to the qualifying relative, among other requirements. (For more information on provisional waivers, visit our I-601A page.) However, if that same individual has smuggled another into the US in a way that meets the definition of 212(a)(6)(E), USCIS may likely deny the provisional waiver because those subject to any ground of inadmissibility other than unlawful presence will be found ineligible. Here, the other ground of inadmissibility could be alien smuggling. This is just an example but it illustrates the importance of dealing with an attorney deeply versed in immigration law who knows how to ask the right questions and perceptive enough to recognize potential issues. Even if USCIS does not catch the issue, this ground may be uncovered during the consular interview-which is actually worse-because by then, the individual will have already left the US. If the consular officer determines that this ground applies, a visa will be refused even though the provisional waiver had previously been approved and the applicant will be forced to file another waiver from outside the US. Unfortunately, the eligibility requirements and criteria to waive alien smuggling are very narrow, and should either the unlawful presence or alien smuggling waiver be denied, the individual will be denied entry into the US.

Remember that this is general information only.  It is not a substitute for legal advice nor is it intended to create an attorney-client relationship.  For specific legal advice, consult with an attorney.

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