There is much misinformation out in the media about the legal nature of immigration violations. Many believe that if someone is present in the U.S. without documentation, they are committing a crime. Technically, this is not so, aside from in very exceptional cases. Others wonder why it matters--the answer is because a criminal record is a very different matter than a record of civil infractions, for immigration purposes and otherwise. If you are in the U.S. without documentation, it is absolutely imperative that you know what manner of act you have actually committed.
Unlawful presence is exactly what it sounds like - being present in the United States without benefit of legal status. However, lack of ‘legal status’ can be somewhat misleading to the average person, making it sound as though it is a crime, when in reality, unlawful presence is a civil infraction.
It is interesting to note that Congress actually had the opportunity in 2005 to criminalize unlawful presence, and declined to do so. The Sensenbrenner Immigration Bill, the short name for the Border Protection, Antiterrorism and Illegal Immigration Control Act of 2005, would have made unlawful presence a felony, regardless of circumstance, but after demonstrations around the nation, the Senate voted the bill down.
The only time mere unlawful presence (without any compounding actions) can result in criminal penalties is if it occurs after a person has been formally removed from the country, and then returns without leave to do so. If someone re-enters the U.S. when they have a previous standing removal order, they are at risk of being arrested and sentenced to prison. Most sentences are around two years, but it can vary. If you entered the United States legally, but are accruing unlawful presence, you will likely be subject to deportation, but you have not committed any crime under U.S. law (with very rare exceptions).
Unlike merely being present unlawfully, entering the country without inspection is a federal crime, according to 8 U.S.C. §1325. It can be a felony, but is most often characterized as a misdemeanor punishable by fines and/or jail terms of no less than six months (but normally no more than two years).
One might wonder how someone can be unlawfully present in the U.S. and not have entered unlawfully, but it is in reality quite common. Many who find themselves in this position legally obtain visas and then simply fail to leave before the visa’s expiration date. They enter the country legally, with inspection, but as soon as their visa expires, they begin to accrue unlawful presence. In that scenario, the person would be guilty of a civil infraction, but no crime has been committed.
If you entered the United States without inspection, you are guilty of both the civil infraction of unlawful presence, and the crime of unlawful entry. You are subject to deportation, but you may also be subject to fines and a two-year jail sentence.
Get An Immigration Attorney On Your Side
If you need help with a potential immigration violation, or you need guidance on which penalties you may be subject to, having a good immigration attorney on your side can make all the difference. The skilled DuPage County immigration and deportation attorneys at Mevorah Law Offices LLC have years of experience in these cases, and will do our very best to help you with yours. Contact us today.