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The ABCs of Immigration - Inadmissibility - Undocumented Entry and Other Immigration Violations
by Greg Siskind and Amy Ballentine

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.


About The Author

Gregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

After graduating magna cum laude from Vanderbilt University, Gregory Siskind went on to receive his law degree from the University of Chicago. For the past several years, he has been an active member of the American Immigration Lawyers Association and he currently serves as a member of the organization's Technology Committee. He is the current committee chair for the Nashville Bar Association's International Section. Greg is a member of the American Bar Association where he serves on the LPM PublishGregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

Greg regularly writes on the subject of immigration law. He has written several hundred articles on the subject and is also the author of the new book The J Visa Guidebook, published by Matthew Bender and Company, one of the nation's leading legal publishers. He is working on another book for Matthew Bender on entertainment and sports immigration.

Greg is also, in many ways, a pioneer in the use of the Internet in the legal profession. He was one of the first lawyers in the country (and the very first immigration lawyer) to set up a web site for his practice. And he was the first attorney in the world to distribute a firm newsletter via e-mail listserv. Mr. Siskind is the author of the American Bar Association's best selling book, The Lawyer's Guide to Marketing on the Internet. He has been interviewed and profiled in a number of leading publications and media including USA Today, the New York Times, the Wall Street Journal, Lawyers Weekly, the ABA Journal, the National Law Journal, American Lawyer, Law Practice Management Magazine, National Public Radio's All Things Considered and the Washington Post. As one of the leading experts in the country on the use of the Internet in a legal practice, Greg speaks regularly at forums across the United States, Canada and Europe.

In his personal life, Greg is the husband of Audrey Siskind and the proud father of Eden Shoshana and Lily Jordana. He also enjoys collecting rare newspapers and running in marathons and triathlons. He can be reached by email at GSiskind@visalaw.com

Amy Ballentine is an associate in Siskind, Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the law review staff as well as a published author. She also worked with the local public defender’s office in death penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at aballentine@visalaw.com



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