Many people who reside in the U.S., whether as green card holders, citizens, or unlawfully, have families in their home country who they want to have join them in the United States. But the visa categories allowing immigration to the U.S. are limited, and some involve waits of many years.
If that situation is leading you to wonder whether you can find a way to get around U.S. immigration law and have your relatives cross the U.S. border secretly and unlawfully, or if a friend or family member has asked for help in such an endeavor, there's one serious questions to consider first: Will doing so will hurt your own current or future immigration status?
In many cases, helping a family member to illegally enter the U.S. constitutes a crime called "alien smuggling." And it's especially important to realize that you could be found liable for this even if you do not actually, physically smuggle your friend or relative into the United States. Merely providing some of the tools for illegal U.S. entry, such as money or false documents, can get you into serious trouble, as this article describes.
As U.S. law defines it, an "alien smuggler" is a person who encourages, induces, assists, or aids any other person to enter the United States, or even try to enter, in violation of the law. (I.N.A § 212(a)(6)(E)(i).)
The following types of actions may be considered alien smuggling:
These are some of the most common ways that a person participates in alien smuggling, but there are other actions that could fall under the definition.
And most importantly, alien smuggling occurs even if neither the smuggler nor the person being smuggled get caught and even if they are not successful in helping the individual enter the United States. So merely sending money to someone who hires a coyote and then gets caught and turned around at the entry to a tunnel to the United States could be enough to create a permanent stain on your U.S. immigration record.
Assisting a relative or other person to enter the United States unlawfully, or alien smuggling, can affect your immigration status in a number of ways.
If you're applying for U.S. permanent residence: A person who is found to have encouraged or assisted another person to try to enter the United States is inadmissible. This means that they cannot apply for or receive a U.S. green card or any other U.S. visa, even if are otherwise eligible for it.
If you're applying for U.S. citizenship: One of the main requirements for someone with a green card to naturalize and become a U.S. citizen is "good moral character." Someone who cannot prove good moral character may not become a U.S. citizen.
Someone who has been convicted of alien smuggling any time after November 29, 1990, and whose conviction is considered an aggravated felony, can never establish good moral character for naturalization purposes. It is a permanent bar to becoming a U.S. citizen.
Even someone who has not actually been convicted of alien smuggling can be barred from naturalizing, after encouraging or assisting a relative to enter the United States. In order to become a U.S. citizen, one must show good moral character for the five years preceding the application (or three years if you're applying early based on an exception, most likely marriage to a U.S. citizen). An immigration officer who discovers that the applicant encouraged or assisted a relative to enter the United States during that five- or three-year period may find that the applicant does not meet the requirement for good moral character and thus cannot be naturalized.
If you are undocumented in the United States. You are already at risk of deportation, but with a record of alien smuggling, you'd be giving U.S. immigration authorities one more basis upon which to deport you, and harm your chances of qualifying for any other immigration remedy. (Alien smuggling is a ground of deportation under I.N.A. § 237(a)(1)(E)(i).)
If you already have a visa or green card green card: Someone who is found to be an "alien smuggler" can be deported even if they had a legal right to be in the United States.
An actual court conviction for alien smuggling is not required in order to deport someone. If the immigration judge determines, based on the facts before them, that the person encouraged or assisted someone else, including a relative, to enter the United States unlawfully, the judge may issue a deportation order.
A limited waiver (legal forgiveness) is available for U.S. permanent residents, green card applicants, and applicants for an immigrant visa abroad if the applicant assisted a spouse, son, or daughter to enter the United States in violation of the law. The waiver is available to people who prove that they deserve it for humanitarian purposes, to ensure family unity, or because it is in the public interest.
This waiver does not apply if the person assisted anyone besides a spouse or children to enter the United States. So, for example, someone who sent money to a spouse as well as his brother so that they could enter the United States unlawfully will not qualify for the waiver.
The Ninth Circuit, which handles court cases in Alaska, Washington, Oregon, California, Montana, Idaho, Nevada, and Arizona, has also held that an individual may not use the waiver in deportation proceedings to overcome the good moral character bar. This means that people living within the Ninth Circuit who have encouraged or assisted a family member to enter the United States unlawfully will not be eligible for cancellation of removal, a defense to deportation.
If you might have a family visa case, you could make your life easier by hiring an experienced immigration attorney to handle it. The attorney can analyze the facts of your case, identify the speediest paths by which your family could qualify for U.S. residence, spot any potential problems, prepare the paperwork, and monitor the progress toward approval. And if you're arrested or accused of alien smuggling, definitely get an attorney's help.