By Amanda Kwong and Nancy Miller
We often hear the term “EWI” (pronounced Ee-whee), but what does that even mean? EWI is an acronym for “entry without inspection,” and can have serious ramifications for anyone who engages in that activity but especially for those who seek to become lawful permanent residents (“LPR”) in the United States. Someone has entered EWI when she did not present herself in a procedurally regular way when she came into the country. For example, she walked across the border at other than an official checkpoint and did not encounter an immigration official, and is present without permission or parole. Another example is where she hid in the back of a truck while it entered the United States in order to avoid encountering immigration officials. In addition to immigration ramifications, there are civil penalties of $50-250 that may be imposed on someone entering or attempting to EWI.
Those who are deemed inadmissible at the border, for lack of travel and visa documents—as generally the case for EWI—can be subject to expedited removal. If the Customs and Border Patrol issues an order of expedited removal, then the person is subject to a five-year bar. One who is seeking to enter the United States because she fears persecution or torture in her home country will be subject to a credible fear interview. A finding of credible fear means that the officer believes that there is a significant possibility that she could establish eligibility for asylum.
Someone who entered EWI is not authorized to be in the US for any period of time, and has no immigration status. The unlawful presence begins upon the date that the individual EWI’d. While minors do not accrue unlawful presence until they turn 18, being a minor does not cure the manner of entry. Number of days of unlawful presence is significant because if someone accrues over 180 days but less than one year, she is subject to a bar from returning to the US for 3 years when she leaves the country. If there is over one year of unlawful presence, she is barred for ten years upon departure. The unlawful presence accrues even after the individual leaves and reenters. Please note that there is a difference between accruing unlawful presence by overstaying a visa multiple times versus accruing unlawful presence by multiple EWIs. Someone who EWI’d multiple times, or merely attempted to do so, has a permanent bar where she must wait ten years in her home country before she is allowed to request a waiver for consent to reapply for admission into the US.
A waiver exception exists for Violence Against Women Act self-petitioners (which, despite the title, also includes men) who can show a connection between the battering and/or extreme cruelty, their final departures from the US, and their (attempted) reentries. There is a limited exception for multiple EWIs if the attempts were all made prior to April 1, 1997.
EWI also prevents someone from adjusting to becoming a permanent resident within the US, with the exception if she is the beneficiary of an immigrant visa petition filed on or before April 30, 2001. The petition must have been approvable when filed, but does not need to have been approved before that date. Because the rules state that an EWI applicant is ineligible to adjust, the only other way to become a permanent resident is to consular process in her home country. As stated above, unlawful presence bars can pose as barriers upon departing to consular process. Fortunately, there is an unlawful presence waiver available to those who can demonstrate extreme hardship to their qualifying relatives. If granted, the applicant can lawfully return to the US before the three or ten-year periods are completed.
On occasion, the Department of Homeland Security (“DHS”) has the authority to parole a person for “urgent humanitarian reasons” or “significant public benefit” on a case-by-case basis. When a person who is EWI and physically present has been paroled-in-place, she gets a status that allows her to remain in the US lawfully. Additionally, she can become eligible to adjust her status. This discretion is typically applicable to EWI spouses, children, and parents of military personnel (active duty members and former individuals of the US Armed Forces or Selected Reserve of the Ready Reserve) who have no serious adverse factors, like crimes.
All of the above are complicated by many other factors. Please consult with an immigration attorney so that you may make an informed decision based on available options.
