There was an interesting question on the AILA Boards recently (America Immigration Lawyers Association). The question dealt with an individual who had entered the U.S. twice via EWI (or just "EWI" which is pronounced "eee-weee"). The individual was married to a U.S. citizen, but in a nutshell, the question could be distilled to: What is the effect of double EWI on an I-130 application for change of status when the illegal is married to a U.S. citizen?
The problem is that a double EWI (plus one year of unlawful residence in the US) is an automatic permanent bar to U.S. citizenship -- or, in fact, any entry into the U.S. at all. That means no visa, no LPR, no spousal waiver -- nadda. See INA code section INA 212(a)(9)(C)(i)(I).
To analyze this problem, we first must discuss what the heck an EWI is. EWI means you entered the U.S. without going through a custom's "portal", such as an airport, border crossing, etc. In some instances, such as Canada/U.S. border, where the citizen is Canadian or U.S., this is really rarely a problem, as our open borders largely allow for effortless travel back and forth (although, in reality, every person coming into the U.S. should obtain at least an electronic visa waiver submission). This becomes a very large problem for folks coming from south of the border (Mexico, Central and South Americas). Sneaking across the border, being smuggled or just finding oneself in the U.S. are all examples of EWI situations.
But to trigger the really vile form of permanent barring discussed in the second paragraph above, the immigrant must enter the U.S. EWI once, then return to his/her country (or just outside the U.S.) -- and then re-enter AGAIN EWI.
How does the government determine EWI status? This is tricky. If you snuck in, and have never filed for benefits, paid taxes, or otherwise "appeared on the radar", it is unlikely the government even knows you are here. In such case the entire concept of EWI is meaningless...you simply don't exist as far as the government is concerned.
99% of ALL EWI "detections" come because an immigrant admits to ICE or a custom patrol officer that he/she has entered and exited the U.S. multiple times. It often seems much easier to just tell the officer everything. Without encouraging any form of misrepresentation, I strongly advise you consult an attorney before saying ANYTHING to ANYONE about your immigration status. You need to know the effect of indicating you are EWI -- and what it means if you tell the government you have entered/exited/and re-entered (double EWI). You could be barred from the U.S. forever.
What happens if you do find yourself with a double EWI and facing deportation? It is possible to file an I-212 (usually requires a 10 year waiting period before a waiver can be granted for a double EWI violation) in conjunction with an I-601 (spousal hardship) and hope for the best. Additionally, Asylum/Withholding/CAT may be available as alternative affirmative alternative (admitting deportability while offering alternative justification to jam the removal). It is critical you speak to an attorney about this immediately.
We at Hanover Law have been working with just these types of immigration cases for some time. We are sensitive to the frightening and often bewildering nature of the immigration process, and we can help you understand what is happening, and the best steps you need to take.
A good attorney will plot out a strategy that offers the highest possibility of success. It should be noted that frequently, there is little that is guaranteed in a double EWI case. Many clients like to know the "odds" of success -- a common, and perfectly acceptable question. In double EWI cases, the odds are not great, and often rely more on the disposition of the immigration judge and prosecutor then anything else. However, a good lawyer can develop a compelling narrative and ensure every possible opportunity to stay is developed.
Call us today to discuss your case. WE CAN HELP. However, the longer you wait, the riskier it becomes when you are finally brought before an immigration judge.
Sean R. Hanover, Esq