Alien Smuggling: A Pitfall on the Pathway to Lawful Permanent Residence

Alien smuggling is a ground of inadmissibility that is often overlooked when applying for admission, seeking adjustment of status, or applying for a provisional waiver. U.S. immigration law (INA §212(a)(6)(E)) states “[a]ny alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.”

One might first think that this ground of inadmissibility applies only to professional smugglers or “coyotes,” but it would be a mistake to apply such a narrow interpretation. The alien smuggling ground of inadmissibility can be triggered in various manners and applies to a broad range of conduct. This can include those crossing the border with family, helping plan a trip for someone to enter the United States unlawfully, and sending money to assist an individual entering unlawfully. A mother who crosses the border illegally with her child has committed alien smuggling, as has an individual who gives a person money knowing that it will be used to enter the U.S. unlawfully. In some circumstances, alien smuggling can include aiding a person shortly after they have unlawfully crossed the border. The assistance provided must have been provided with knowledge that the person was entering unlawfully to constitute alien smuggling. A waiver of this ground of inadmissibility is available in limited circumstances. The individual seeking the waiver must be a lawful permanent resident returning after temporary foreign travel or an individual seeking immigrant status via an immediate relative petition or a family-based first-, second-, or third-preference petition. The waiver is not available to family-based fourth preference or employment-based immigrant visa applicants. One must have only smuggled their spouse, parent, son, or daughter to qualify for the waiver.

As such, an uncle who smuggled his nephew would not be eligible for such a waiver. The waiver can be granted for humanitarian reasons, to assure family unity, or when it is in the public interest. Many times, an individual will not realize that they are subject to this ground of inadmissibility until questioned by an immigration or consular officer. Not being aware of such could have especially dire consequences for those seeking a provisional waiver. If an immigrant visa applicant is granted a provisional waiver, departs the country to complete consular processing, and is then found to be subject to the alien smuggling ground of inadmissibility, their provisional waiver will be cancelled, and they will need to remain outside the United States until they can obtain a waiver for such. If they are not eligible for the smuggling waiver, they will remain permanently inadmissible.