Your Options if You Are Arrested Entering the U.S. Without a Visa

Most people need a visa to enter the U.S. However, getting a visa can be difficult, expensive, and take a long time. U.S. immigration officials deny visas to people from all over the world trying to come to the U.S. for various reasons. Sometimes, entering the U.S. without a visa can feel like the only option.

People may attempt an illegal border crossing despite the serious consequences. If you are caught in the U.S. without a valid visa, you can face arrest or deportation. For legal advice after getting arrested without a visa, talk to an experienced immigration attorney.

Consequences of Entry without a Visa

Unless you are from one of the Visa Waiver Program (VWP) countries, you likely need a visa to enter the U.S. Even if you are from a VWP country, you may need a visa if you are coming to the U.S. to work, study, or want to stay longer than the standard 90 days.

Unlawfully entering the United States without going through an official port of entry or making false statements to U.S. Customs and Border Protection (CBP) is illegal entry. Under federal law 8 U.S.C. §1325, illegal entry is a misdemeanor criminal offense. The penalties for a criminal conviction include a fine and up to six months in prison.

Unlawfully reentering the U.S. after deportation, removal order, or denied admission is illegal reentry. Under 8 U.S.C. § 1326, illegal reentry is a felony, punishable by up to two years in prison. For illegal reentry with a serious criminal history, penalties can include up to 20 years imprisonment.

A long-term consequence of any immigration violations is that it stays on your record. This can harm your immigration status if you apply for lawful permanent residency (or a green card) later on.

When you are initially caught without a U.S. visa, you may be arrested by local law enforcement, the Department of Homeland Security (DHS), or other immigration officers. Typically, you would be transported to an immigration detention center. After an arrest, the two strategies for releasing someone from a detention center are:

• Parole if you have just arrived in the country and went through customs control
• Release on bond or bail if you evaded customs control when entering the country, or you overstayed your visa

In all cases, you must show that you do not present a flight risk or a threat to the community or national security.

Common Ways of Detention at the Border

Your legal situation depends on how and where you were arrested:

• You surrendered to customs control
• You avoided customs control and were detained after entering the country
• You entered legally but overstayed your visa

Individuals may be subject to detention and removal in all three cases. However, the strategies can differ to achieve their release from detention.

If You Turn Yourself In at the Border

Newcomers to the country have the possibility of requesting their conditional release if they turn themselves in at the border. Likewise, you could also request asylum if you meet all the conditions. You have one year from entering the country to do so.

To qualify for asylum, you will undergo a “credible fear” interview. After passing the credible fear screening, you can file a Form I-589, Application for Asylum.

What Actually Happens When I Arrive at the U.S. Border and Ask for Asylum?

The U.S. government agency that operates at ports of entry is the U.S. Customs and Border Protection (CBP). After processing by CBP, immigrants can go to Immigration and Customs Enforcement (ICE) officers for removal operations.

It is important to clarify that ICE agents are not immigration judges. The ICE officer will decide whether you will receive parole based on immigration laws. Parole is discretionary. This happens at the port of entry after determining:

• Your identity
• Your legal immigration status
• Your national origin
• If you represent a threat to the community, such as having a criminal record
• If you are at risk of escaping
• If you crossed the border while evading customs control
• If you exceeded the length of stay on your visa

If You Evade Customs or Exceed Your Stay Limit

For people who crossed by evading customs control or exceeded the legal stay limit granted by a visa or green card, requesting parole is generally not an option, except in certain humanitarian cases or for significant public benefit. However, you can request bail for release.

Who Decides What Happens to Me?

While immigration judges make decisions on bond and removal proceedings, ICE officers have initial authority to detain and release individuals on bond or parole. For release from a detention center, you must show the immigration court that you are not a threat to the community or public safety and that there will be no risk of escape.

Having ties in the U.S. with family or friends who legally reside in the country and serve as sponsors is a great advantage. This is useful for demonstrating that a person can live in the country and attend all future legal meetings.

These people who can be sponsors can write letters of support attesting to:

• Who the detainee is
• Their history
• Their relationship
• The sponsor will provide a place of residence and financial assistance

Being Released From Detention Centers on Bail

The immigration judge will determine a reasonable bail amount, considering factors such as flight risk and danger to the community. While there are general legal principles against detaining individuals solely due to inability to pay, in practice, bond amounts can be prohibitively high for many detainees. Unfortunately, many recent immigrants arrive in the country under precarious economic conditions. In the vast majority of cases, immigrants are fleeing their countries because of poverty. The average amount of a bond is about $7,000.

Many detainees manage to post bail with the help of family members and non-profit organizations.

Will I Get an Attorney if I’m Arrested at the Border?

Whatever the mode of entry into the country, the government will not grant you a defense attorney in any of the three cases. There are free non-governmental legal aid services that immigrants can access. However, with many immigrants in detention, the demand is very high, and the supply is low.

How Do You Know Which of the Three Categories I Am In?

The detained person must receive a Notice to Appear document detailing why they are deportable. At the top of the first page of this document will be the three options, and the option that corresponds to the person will be marked with an X.

Legal Help for Immigration Issues

U.S. immigration law is complex and changes all the time. Experienced immigration law attorneys in our directory can guide you through the system and protect your rights. Contact a local immigration lawyer for help after an arrest or if you are in removal proceedings.