In a highly unusual case, Mr. A. was a recently-landed immigrant from Uzbekistan who found out that he had won the Lottery. Because his 21 year old son was stranded in his home country but was included in his Lottery entry, Mr. A. decided to obtain another green card so that his son would be eligible to immigrate as well. The problem arose, first, when he was advised by the Kentucky Consular Center that his son was no longer allowed to immigrate as his dependent because he had turned 21. Later the consulate advised Mr. A. that he was not able to obtain another green card, that he had to petition for his son separately, a process which could take several years. Mr. A. then contacted our firm, and we were able to successfully petition for review of both of these decisions, with the end result that Mr. A. received another green card and his son was allowed to immigrate.
While the term “alien smuggling” conjures up the notion of a person illicitly transporting or escorting a person across the border under cover of dark, the reality is that the definition in immigration law is much, much broader. According to INA section 212(a)(6)(E), alien smuggling is when a person knowingly “encouraged, induced, assisted, abetted or aided” another person “to enter or try to enter the United States” in violation of law.
There does not need to be a finding by the consular officer that the “smuggler” had a profit motive or received money. In fact, it is family members who have not received any money who are most often the subject of accusations of alien smuggling.
In addition to “coyotes” smuggling individuals across the border, alien smuggling comes up in a variety of ways:
- In the Diversity Lottery, marriages concluded after notification of being selected trigger scrutiny of a sham marriage. In such “
pop-up”marriage cases, a person wishing to immigrate but not winning the Lottery pays a Lottery winner to get married so that she would be eligible to immigrate as the spouse. If the consular officer finds that the marriage is a sham, the officer will permanently bar the Lottery winner as an alien smuggler and the other “spouse” for committing fraud;
- Lying about a dependent applicant’s age or marital status. A person under 21 and single is considered a dependent for immigration purposes. So parents who intentionally lie that a child is under 21 or that a child is unmarried when he is in fact married are subject to a finding of alien smuggling. When consular officers have such suspicions, they can order a bone density test to help them determine the age of a child, or check with the nearby civil registry to determine whether the child was married.
- Lying that a visa applicant is your child. In such cases, the consular officer can order a DNA test to determine paternity or maternity.
- Tour organizers who knowingly incorporate an “outsider or outsiders” into a group. For example, an individual applies for a visa as part of a baseball team but in reality has nothing to do with the team. When a tour organizer knowingly tries to facilitate the issuance of a visa to that “outsider”, he could be subject to a charge of alien smuggling.
- Visa consultants who counsel their clients to knowingly lie on visa applications or supply them with false documents to help them obtain visas can be found inadmissible as an alien smuggler.
One of the critical elements and prerequisites to making such a finding is that the person must knowingly intend to help another person obtain a visa or cross the border who is not eligible. Therefore, an honest misunderstanding of a person’s status is an absolute defense to such an accusation. For example, a parent who does not know his son got married cannot be charged with alien smuggling because the parent did not know of his true marital status. The driver of a car crossing the border who thought that his passenger had a green card also should not be subject to such an accusation because he did not knowingly intend to bring someone to the US illegally.
Individuals permanently barred under 6E are eligible for nonimmigrant waivers. However, they are eligible for immigrant waivers only in limited circumstances — when they tried to smuggle close family members.
As can be seen, these decisions can often be disputed and challenged. Consular officers are not mindreaders; discerning a person’s intent and knowledge can be difficult. Answering a question or two wrong about a spouse’s favorite color or perfume should not lead to a finding of a sham marriage. With our assistance and legal support, many individuals have been able to overcome these