By Dev B. Viswanath
The Immigration & Nationality Act (INA) defines an alien smuggler as “any person who knowingly has encouraged, induced, assisted, abetted, or aided” any other person to enter or try to enter the United States unlawfully. It does not matter if the individual entering the U.S. unlawfully is a family member of the alien smuggler or if it was done for monetary gain. Alien smuggling can result in a ground of inadmissibility, a ground of deportability, a bar to good moral character, and if convicted of alien smuggling it would count as an aggravated felony.
Alien smuggling entails affirmative and knowing conduct. It has been found by courts that an individual must have made an affirmative and knowing act in order to be found to have committed alien smuggling. An individual who was involved in alien smuggling may be eligible for a waiver of inadmissibility in order to avoid removal or allow the individual to continue with their application for an immigration benefit such as a family-based visa.
To qualify for a waiver of inadmissibility an individual must be a lawful permanent resident or must be applying for a family-based immigrant visa or fiancé visa. A waiver of inadmissibility would not apply to any other type of petition. Next, an individual can apply for a waiver if the person they were trying to bring to the U.S. was their spouse, parent, son, or daughter at the time of entry. A married individual may apply for a waiver even if they are no longer married after the smuggling occurred.
In order to request a waiver, an individual must have a qualifying relative which is clearly defined under the statute and regulations. In the application, an individual will be required to show U.S. Immigration and Citizenship Services (USCIS) that they deserve a waiver for humanitarian purposes, to keep family unity, or because it is in the public interest. For humanitarian purposes, USCIS will grant a waiver if an individual shows they will suffer serious hardship if the application is denied. For family unity, USCIS will grant a waiver if an individual shows they have a spouse and/or children in the U.S., they are responsible for caring for their family, or if most of their family is in the U.S. For public interest, USCIS will grant a waiver if an individual shows they benefit their community in some way such as volunteer work or owning a business that provides jobs to others.
Every waiver petition must include supporting documents. USCIS and immigration judges would like to see proof to support what the individual tells them in their application. If an individual was found to have committed alien smuggling and is qualified to file a waiver it is best for them to hire an attorney. Every waiver for alien smuggling is only one of a kind so an attorney would be able to help an individual gather the right documents, prepare for an interview if needed, and guide them through the whole process.