THE ABC'S OF IMMIGRATION - INADMISSIBILITY - UNDOCUMENTED ENTRY AND OTHER IMMIGRATION VIOLATIONS

Section 212(a)(6) of the Immigration and Nationality Act creates a number of grounds of inadmissibility related to immigration violations, many of which were added in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act.

Those who enter the US without being officially admitted and those who enter the US at someplace other than an official port of entry are inadmissible.  People who fail to appear at removal proceedings against them without a “reasonable cause” are inadmissible for five years, in addition to being ordered removed.  If the person has received oral notification of the time and place of the proceedings and fails to attend for anything less than “exceptional circumstances,” the person is inadmissible for ten years, and during this period is also ineligible for any other form of immigration relief.

People who engage in purposeful misrepresentation of a material fact in order to gain an immigration benefit are inadmissible.  This is an extremely broad provision, applying to every stage of the immigration process, from the visa application to actually seeking admission to any action after entering the US.  It also applies to all acts of fraud or misrepresentation, regardless of when they occurred.  Indeed, because of the breadth of the provision, the State Department instructs consular officers to remember its severity before invoking it to deny someone a visa.  The far reach of the provision can be seen in the guidelines dealing with unauthorized work while on a tourist visa.  If a person begins work within 30 days of their admission on a tourist visa, they are presumed to have misrepresented their intention in coming to the US.  If the work began more than 30 days after entering but less than 60, there is no presumption of misrepresentation, but the consular officer can seek an advisory opinion if additional facts indicate that a misrepresentation occurred.  Before a consular officer can deny a visa on this ground, they must obtain approval from the State Department Visa Office, except in a few cases.

A waiver of this ground of inadmissibility is available.  However, the waiver is very limited, available only to spouses and children of US citizens or permanent residents, and then only upon a showing that the citizen or permanent resident would face extreme hardship if the immigrant is denied admission. 

A similar ground of inadmissibility to misrepresentation is a false claim of US citizenship in order to gain any immigration benefit, including employment.  There has been come controversy whether lying on an I-9 form to gain employment would violate this provision.  It appears that this would not be a violation because the question on the I-9 form regards whether one claims to be a US citizen or national (emphasis added).  Since the provision only relates to a false claim to US citizenship, this question on the form would apparently not be covered.

Stowaways are inadmissible, but having been a stowaway in the past is not a ground for denying a visa application.  Because stowaways are not discovered until they are at the US border, they create a number of special administrative problems that do not arise when a person is found inadmissible by a consular officer.  In addition to administrative fines and possible criminal prosecution of the carrier on which the stowaway arrived, stowaways are allowed to apply for asylum and may, in many cases, file a petition for a writ of habeas corpus if they have been denied certain rights.

People who have engaged in immigrant smuggling are inadmissible.  This provision applies not only to those directly involved in transportation, but also to anyone who encourages or induces an immigrant to unlawfully enter the US.  In certain family unity cases, this provision does not apply, and there is a waiver available for cases in which the smuggled person was the spouse, child or parent or the smuggler. 

Immigrants who are subject to a civil penalty for engaging in document fraud are inadmissible.  Document fraud includes forging, counterfeiting, altering or making any document to satisfy an immigration requirement, using, attempting to use or possessing any such document, and using a valid document that belongs to another person.  There is a waiver available for this ground of inadmissibility, but it is seldom granted.  First, it is available only to permanent residents, those seeking to become permanent residents as an immediate relative of a US citizen, and to other family based immigrants.  Second, the waiver is unavailable if the application was subjected to a civil fine for the document fraud.  Finally, the purpose of the fraud can only have been to help the applicant’s spouse or child.

Finally, people who abuse F-1 student visas are inadmissible.  F-1 students are allowed to attend only one year of public school in the US, and then must reimburse the school board for the cost of their education.  F-1 students can attend private schools for as long as they desire.  This ground of inadmissibility appears to be designed to prevent students from enrolling in private schools and then switching to a public school.