1. ENTERING WITHOUT INSPECTION (EWI): Bans and what you should know before you file.

Many of us come to this site because we or our fiance/ spouse has entered the US illegally. Entering Without Inspection (abbreviated EWI on I2US) is the technical term that the government uses to describe the situation when a person sneaks in and is not inspected at the border. A person can also be considered as entering without inspection even if they were inspected at a point of entry (POE), but cannot prove their entry was inspected, such as with a stamped visa, passport, etc. Simply talking to a border officer is not enough to count as an inspected entry. Imps personal note: Please note that this is my best advice after my personal, successful experience and several years involved in this process- I am not qualified to give legal advice. Please confirm your particular situation with a qualified attorney- a list of attorneys recommended can be found in the I-601 forum. Good luck! Link to original EWI thread (in English and Spanish)

1. PENALTIES FOR ENTERING WITHOUT INSPECTION AND/OR ACQUIRING ILLEGAL PRESENCE TIME AND WHAT CAN BE DONE TO OVERCOME THE CONSEQUENCES: The laws regarding adjusting status/ obtaining legal status for

persons in the US illegally have changed dramatically in the last 10 years. Before April 1997, an immigrant in the US that EWI could generally marry a US citizen, pay a $1000 fine and was then allowed to adjust status, i.e, become legal. This is no longer the case. If an immigrant has entered the country without inspection after April 1997, they are not eligible to adjust their status in the US, regardless of the presence of a US citizen spouse. Depending on the amount of time an immigrant has spent in the US and how many times s/he entered, s/he receives a ban period which s/he must serve outside the US before s/he is eligible to apply for a visa. The immigrant is required to return to her/his home country to apply for a visa to re-enter the US legally. In some cases, a waiver is available to overcome the ban, but it is not available in all cases. Many people on this site are in the process of filing I-601 waivers for their spouses or fiance but before you apply, it is important to know if you will be eligible. Please note: There are some exceptions to this that may allow an immigrant to adjust status under the rules of INA 245i, but this sticky does not address these rules. 245i eligibility usually means that even if an immigrant EWI and was present in and has not left the US since December 2000 and someone filed an I-130 or I-140 for the immigrant before April 2001, the immigrant may be able to adjust status. 245i information from the EOIR IJ Benchbook

ILLEGAL PRESENCE BANS: There are two sections of law that directly concern a number of people on this site regarding EWI and illegal presence. Below is the

actual section of law that explains the most commonly seen illegal presence ban on this board. The first ban discussed is usually eligible to be waived with an I601 waiver immediately following the visa interview in the immigrants home country assuming there are no other inadmissibilities that could complicate the immigrants case: INA 212 (a)(9) (B) ALIENS UNLAWFULLY PRESENT.(i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) who(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or (II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States, is inadmissible. (ii) Construction of unlawful presence.-For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled. (iii) Exceptions.(I) Minors.-No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States under clause (I).

To view the rest of the exceptions or to view this section of law click here

EXAMPLES OF SITUATIONS WHEN AN IMMIGRANT MAY RECEIVE A 9B BAN: 3 year ban INA 212(a)(9)(B)(i)(I): - If an immigrant enters the US uninspected one time only, remains in the US for more than 6 months (180 days) but less than 1 year (365 days), the immigrant will most likely receive a ban of 3 years. The good news: This ban can generally be waived immediately. The immigrant does not have to wait 3 years to be allowed to file a waiver for this ban. 10 year ban INA 212(a)(9)(B)(i)(II) (most commonly seen on I2US): - If an immigrant enters the US uninspected one time only, remains in the US for 1 or more years (365+ days) in aggregate, the immigrant will most likely receive a ban of 10 years. The good news: This ban can generally be waived immediately. The immigrant does not have to wait 10 years to be allowed to file a waiver for this ban. EXAMPLES OF WHEN A 9B BAN DOES NOT APPLY: If an immigrant enters the US uninspected, stays in the US for 1 or

more years, leaves the US, then AGAIN enters or attempts to enter the US uninspected, the immigrant will most likely receive a 9C ban. A 9C ban cannot be waived no matter how strong the immigrants spouse or fiancs hardships may be. When an immigrant receives a 9C ban, the immigrant must remain outside the US for 10 consecutive years before seeking an immigrant visa to enter the US again. Please read the 9C section below for more scenarios and information of what may or may not be a 9C situation. The section of law that addresses this is INA 212(a)(9)(C). If an immigrant enters the US uninspected, stays in the US less than 6 months (<180 days), then leaves the US, the immigrant will most likely not receive a ban for illegal presence. S/he should not have to file a waiver for their uninspected entry since they did not acquire illegal presence according to definitions of illegal presence in INA 212(a)(9)(B)(i)(I). Minors who EWI will not acquire illegal presence as long as the immigrant leaves the US before s/he turns 18 and a half and has only one uninspected entry. This exception can be found in INA 212(a)(9)(B)(iii)(I).

2. EXPLANATION OF AND EXCEPTIONS TO INA 212(a)(9) (C) aka "9C" If an immigrant has EWI the US multiple times, it is likely that s/he faces a lifetime ban for which s/he may not file a waiver until 10 years have first been served outside the US. However, there are some exceptions.

The law that provides the 3 year, 10 year and lifetime bans, INA 212(a)(9)(B) and INA 212(a)(9)(C), took effect in April 1997. In effect, entries or time spent illegally in the US before April 1997 do not count against the alien in terms of making him/her ineligible an I-601 waiver. If an immigrant EWI, was illegally present for more than 1 year, left the US, then EWI the US again, the immigrant may receive a 9C ban despite what age the initial entry/entries occurred. This means a 9C ban can affect both minors and legal adults. Please note that deportations before April 1997 may count against the alien if s/he later EWI-ed, even if s/he was under 18. This article does not cover situation involving deportations. INA 212(a)(9) (C) Aliens unlawfully present after previous immigration violations.(i) In general.-Any alien who(I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or (II) has been ordered removed under section 235(b)(1), section 240, or any other provision of law, and who enters or attempts to reenter the United States without being admitted is inadmissible. (ii) Exception.-Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the alien's last departure from the United States if, prior to the alien's reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Attorney General has consented to the alien's reapplying for admission. Scenario 1:

If an immigrant EWI the US in January 1990 at the age of 20, left in January 1995 and then returned in June of 2003 and stayed until the present, s/he is eligible to file an I-601 waiver as only the second entry happened after April 1997. Scenario 2: If an immigrant EWI the US when s/he was 10 years old in1996, left at the age of 14 in 2000, then EWI again later in 2000, s/he is not eligible to file an I-601 waiver as he accumulated more than 365 days of countable unlawful presence from April 1997 until 2000, then left and re-entered without inspection. As the law is interpreted currently, there is no exception for minors as there is in INA 212(a)(9)(B). Scenario 3: If an immigrant entered the U.S. EWI in 1995, stayed until 2002, then left the U.S. and subsequently EWI, s/he is not eligible to file an I-601 waiver until he has been outside the U.S. for ten years. NOTE: it is not the time (or the number of times) the person EWI. It is the combination of unlawful presence followed by an uninspected re-entry or attempted re-entry that will cause a person to receive a 9C ban. In summary, on April 1, 1997, this person started accumulating countable unlawful presence, even though their EWI was well before 1997. This person had more than 365 days of unlawful presence prior to exiting and re-entering without inspection. Scenario 4:

If an immigrant attempting to enter the US from Mexico in January 2000 at the age of 20 was caught and thrown back to Mexico, attempted to enter the US again the next day, EWI successfully and in the US until the present, s/he is eligible to file an I-601 waiver. S/he has accumulated over 1 year of illegal presence, but has not left the US and attempted to re-enter the US uninspected again. NOTE: to be banned with a 9C ban, an immigrant must first accumulate 12 months of aggregate illegal presence, leave the US, and then enter the US EWI again, or attempt to EWI again. Scenario 5: If an immigrant enters the US legally inspected (with a valid visa) after April 1997, overstays their visa by 365+ days, leaves the US, then attempts to or successfully re-enters the US by EWI, s/he will not be eligible to file an I-601 waiver for 10 consecutive years outside the US. This scenario is most likely going to occur with people who have traveled frequently to and from the US or are from Mexico. Despite the immigrant's initial inspected entry, s/he overstayed his/her visa by over a year, returned to their home country, and then tried to re-enter the US without inspection. This is still considered a "9C situation" because of the combination of acquired illegal presence and attempted or successful EWI.

3. WHAT CONSTITUTES AN ENTRY, TYPES OF REMOVAL, AND WHAT IS A "THROWBACK"/"CATCH AND RELEASE" This is complicated question and it can be difficult to determine, especially if the immigrant entered from Mexico.

WHAT ARE DEPORTATION/REMOVAL OR VOLUNTARY DEPARTURE Deportation: A normal deportation is when an immigrant has been formally deported; generally speaking, s/he will have had to appear before a judge or signed a form waiving his/ her right to do so and is returned to his or her country of origin at the US governments expense. If an immigrant has been ordered removed/deported, his/her entrance into the US is generally determined to be an entry. Voluntary departure: If an immigrant has been given voluntary departure, s/he has appeared before a judge and has been given the opportunity to leave the US at his or her own expense by a given date. You will generally know if youve been given voluntary departure as you would have first had to appear before an immigration judge and request this process. If an immigrant has been given voluntary departure, his/her entrance into the US is generally determined to be an entry. Expedited Removal: Very simply, expedited removal means deportation without appearing before a judge. This type of removal usually happens at ports of entry. Expedited removal is often confused with a throwback if someone is attempting to enter the US illegally, most often at the US-Mexico border. If an immigrant has been removed at the border, his/her entrance into the US is generally determined to be an entry. It can be difficult to determine when an immigrant has experienced

expedited removal or a throwback because the procedures performed after an immigrant is caught or captured are very similar. FBI fingerprints and FOIA request from CBP can often help an immigrant discover the circumstances of their entry or attempted entry. Stipulated Removal: This process happens when an immigrant waives their right to an immigration court hearing. Stipulated removal occurs after an immigrant has been detained in an ICE facility and the immigrant signs paperwork given to him/her. It has been reported that detention officers often speak about this process with the detainees and possibly encourage it as a way to be released (deported) versus sitting in a cell waiting for a hearing. If you know someone in an ICE facility, please encourage them not to sign any paperwork regarding removal until you or the person you know has consulted with an attorney who is very experienced in removal proceedings. Being deported/removed versus being granted voluntary departure can unnecessarily complicate a persons immigration case if they have one or will have one in the future. DHS definitions FOIA request from CBP Form to use for FOIA request FBI fingerprints Waiver Eligibility Self-Test Recommended immigration attorneys Removal information links AFM (adjudicator's field manual) note about bans If you entered undetected and stayed in the US for a period of a year or more- or entered several times and stayed for 365 days in

total, these are generally considered entrances as well. WHAT IS A "THROWBACK" OR "CATCH AND RELEASE"? Many immigrants that have entered the US from Mexico have been caught shortly after entering, detained briefly (perhaps overnight), sometimes fingerprinted and photographed, and then taken to a bridge or other Point of Entry and told to walk back to Mexico. Occasionally an immigrant from a country other than Mexico will be believed to be a Mexican citizen and sent back to Mexico as well. Customs and Border Protection tries to avoid doing this, but as they admit, it happens regularly. On this forum, we tend to refer to this practice as a throwback or a catch & release. Throwbacks or catch & releases are viewed as attempted entries, not successful ones. These attempted entries are not considered deportations and should not cause an immigrant to need the I-212 waiver. An I-212 waiver is needed when an immigrant has been deported and seeks legal re-entry to the US less than 5 years after their removal. A throwback should not cause an immigrant to be ineligible to file an I-601 waiver if the throwbacks happened before the alien had been present in the US for a period of 365 days in aggregate. However, if the alien had already been in the US for a period of 365+ days in aggregate, left the US, and then attempted to EWI a second time, was caught and thrown back, the attempt will most likely count against the immigrant and a 9C ban will most likely affect the immigrant. Many people on this forum have been caught and thrownback to Mexico multiple times. Although the consulate will likely know about these attempts at your interview appointment, they should not

prevent you from filing your I-601 waiver unless the conditions above apply. When asked, you should state that you attempted to enter, but were not successful. In some cases, consulates other than Mexico will be adjudicating the waiver of an alien who was thrownback to Mexico (for instance if a Honduran was caught, lied and said he was Mexican, and was thrownback to Mexico). It is important to be very clear about what happened as these consulates are not as familiar with this practice as the CDJ consulate as they do not share a border with the US and generally speaking, returning aliens would be either deported or removed. 4. FAQs Q. What are the chances that I will get the 10 year ban if I EWIed and stayed for over a year? Is it possible that I will get a lesser ban or that the interviewer will be nice and I won't get a ban? A. Unfortunately, no. Being banned is guaranteed. When it comes to giving someone a ban or not, it is not up to the mercy of the person who interviews you- this part is not discretionary. They will decide what category you fall into based on the number of times you entered, when these times were and how long you stayed and give you the ban accordingly. Occasionally they will make a mistake- if that happens you should contact the consulate immediately. There have been cases were the interviewer made a mistake and it was later successfully remedied, allowing the alien to file a waiver. Q. I am facing a lifetime ban with no possibility of a waiver for 10 years for multiple EWI. But I have a very strong hardship case. Is there a possibility the consulate

will waive the lifetime ban? A. Unfortunately, no. Again, this part of the law is not discretionary and if receive a 9C ban, you are not eligible to file a waiver until you have first waited outside the US for 10 years. If you are determined to be eligible to file, the approval or denial of the waiver is discretionary, but eligibility to file the waiver is not. It is important to know that if you have a 9C ban you will not be given the opportunity to file your waiver, so they will never even review your case for extreme hardship. Q. Cant I just lie? How will they know? A. The forms you fill out require you to sign affirming that all of the information you list is true to the best of your knowledge. Serious penalties exist for both the alien and the US citizen half of the couple if they knowingly falsify documents including enormous fines, jail time and a misrepresentation ban which is a lifetime ban meaning the ban will remain until it is waived, if ever. You can see the I-130 form for an example of the severe consequences of lying, falsifying information, etc. Having said that, many people have lied and many more will probably lie. We should stress that no one will or should advise you to lie. The consulate will conduct a background check including sending your fingerprints to the FBI and other government databases and may have access to other records as well. Even in cases where an alien has sent his/ her fingerprints to the FBI and received a clean record back or sent FOIA requests regarding records of him or her and received those back with no data the interviewer at the consulate has still had knowledge of the immigrants entrances, etc. Q. I entered EWI after 1997 and after my 18th birthday,

stayed for over a year but then left and re-entered. However, I only left for two weeks for a family emergency and no one ever stopped me leaving or entering again. Am I banned for life with no waiver for 10 years under (9) (C)? How will they know I left? A. Yes, you are banned for life and they will know if you put all the dates of your entrances and exits truthfully on your forms. If you lie, you could face serious penalties including permanent inability to legalize, fines and jail time that could also extend to your US citizen spouse. If you are truthful in this situation, you face a lifetime ban without possibility of waiver for 10 years. It is not an easy decision. Q. Will the consulate know about my attempted entries, when I was thrownback? Should I mention those? A. Yes, they will know. You should say you attempted to enter on those dates, but were not successful. Q. When do you get the ban? I am still in the US having EWIed and stayed for over a year but I have never been caught, etc. A. You already have the ban. You essentially earn the ban of 3 years the 181st days you are in the US illegally, you earn the 10 year ban the 366th you are in the country illegally, etc. This happens regardless of whether you have had any interaction with the police, immigration officials, etc., or not. When you go to your interview to attempt to adjust your status, you will be obligated to list all your entries and exits to and from the US and the interviewer will tell you which ban you are facing. Q. I have the 10 year ban for EWIing and staying over a year. I have now been in the US for 8 years and have not left- does this mean my ban is over in 2 more years?

A. No. The ban period must be spent outside the US. The ban time starts when you leave the US. If you feel you may need to prove that you left at a certain time, request a departure document from the POE you are leaving the US through or an arrival document from whatever POE you are entering into another country. Q. Can I go to Canada, Mexico or any other country while I am banned or do I need to stay in my own country? A. You do not have to stay in your own country either while you are banned or while you have a pending waiver. As long as you don't enter the US, US territory or connect through any US airport, you will be fine. There is a thread about moving to Canada and Canadian immigration laws here. Many of the I-601 sections have ongoing threads about living abroad as well.