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.

Imp’s 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 I-601 waiver immediately following the visa

interview in the immigrant’s home country assuming there are no other inadmissibilities that could complicate

the immigrant’s 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 immigrant’s spouse or fiancé’s 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 re-embarkation 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 government’s 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 you’ve 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 person’s 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-TestRecommended immigration attorneys

Removal information linksAFM (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. Can’t 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 immigrant’s 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.