You are 100% correct, it is not a criminal offense, since it does involve jail time or fine. It is consider to be a adminstrative charge, that is why the government is not required to provide you with a lawyer. I really don't think you will find something in the INA about it not being a criminal charge. To become criminal, you would have had to be deported for your overstay and then returned to the USA without special permission of the Attorney General of The United States, then charged in federal court with re-entry after deportation. If they have a problem with your answer, have them call a local ICE/CIS office. I think you would fall under 237(a)(C)(i)
It is a 237 charge in the INA:
Text
§237.247 [8 U.S.C. 1227] General classes of deportable aliens
(a) Classes of deportable aliens. Any alien (including an
alien crewman) in and admitted to the United States shall, upon the
order of the Attorney General, be removed if the alien is within one
or more of the following classes of deportable aliens:
(1) Inadmissible at time of entry or of adjustment of status
or violates status.
(A) Inadmissible aliens. Any alien who at the time of entry
or adjustment of status was within one or more of the classes of
aliens inadmissible by the law existing at such time is deportable.
(B) 248 Present in violation of law. Any alien who is present
in the United States in violation of this Act [chapter] or any other
law of the United States is deportable.
(C) Violated nonimmigrant status or condition of entry.
(i) Nonimmigrant status violators. Any alien who was admitted
as a nonimmigrant and who has failed to maintain the nonimmigrant
status in which the alien was admitted or to which it was changed
under section 248 [1258], or to comply with the conditions of any such
status, is deportable.
(ii) Violators of conditions of entry. Any alien whom the
Secretary of Health and Human Services certifies has failed to comply
with terms, conditions, and controls that were imposed under section
212(g) [1182] is deportable.
(D) Termination of conditional permanent residence.
(i) In general. Any alien with permanent resident status on a
conditional basis under section 216 [1186a] (relating to conditional
permanent resident status for certain alien spouses and sons and
daughters) or under section 216A [1186b] (relating to conditional
permanent resident status for certain alien entrepreneurs, spouses,
and children) who has had such status terminated under such respective
section is deportable.
(ii) Exception. Clause (i) shall not apply in the cases
described in section 216(c)(4) [1186a] (relating to certain hardship
waivers).
(E) Smuggling.
(i) In general. Any alien who (prior to the date of entry, at
the time of any entry, or within 5 years of the date of any entry)
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 deportable.
(ii) Special rule in the case of family reunification. Clause
(i) shall not apply in the case of alien* who is an eligible immigrant
(as defined in section 301(b)(1) of the Immigration Act of 1990), was
physically present in the United States on May 5, 1988, and is
seeking admission as an immediate relative or under section 203(a)(2)
(including under section 112 of the Immigration Act of 1990) or
benefits under section 301(a) of the Immigration Act of 1990 if the
alien, before May 5, 1988, has encouraged, induced, assisted,
abetted, or aided only the alien's spouse, parent, son, or daughter
(and no other individual) to enter the United States in violation of
law.
*So in original. Probably should be "an alien".
(iii) Waiver authorized. The Attorney General may, in his
discretion for humanitarian purposes, to assure family unity, or when
it is otherwise in the public interest, waive application of clause
(i) in the case of any alien lawfully admitted for permanent residence
if the alien has encouraged, induced, assisted, abetted, or aided only
an individual who at the time of the offense was249 the alien's
spouse, parent, son, or daughter (and no other individual) to enter
the United States in violation of law. 250
(F) (Repealed.)251
(G) Marriage fraud. An alien shall be considered to be
deportable as having procured a visa or other documentation by fraud
(within the meaning of section 212(a)(6)(C)(i)) and to be in the
United States in violation of this Act (within the meaning of
subparagraph (B)) if -
(i) the alien obtains any admission into the United States
with an immigrant visa or other documentation procured on the basis of
a marriage entered into less than 2 years prior to such entry of the
alien and which, within 2 years subsequent to any admission of the
alien in the United States, shall be judicially annulled or
terminated, unless the alien establishes to the satisfaction of the
Attorney General that such marriage was not contracted for the
purpose of evading any provisions of the immigration laws, or
(ii) it appears to the satisfaction of the Attorney General
that the alien has failed or refused to fulfill the alien's marital
agreement which in the opinion of the Attorney General was made for
the purpose of procuring the alien's admission as an immigrant.
(H) Waiver authorized for certain misrepresentations. The
provisions of this paragraph relating to the removal of aliens within
the United States on the ground that they were inadmissible at the
time of admission as aliens described in section 212(a)(6)(C)(i),
whether willful or innocent, may, in the discretion of the Attorney
General, be waived for any alien (other than an alien described in
paragraph (4)(D)) who -
(i)(I) is the spouse, parent, son, or daughter of a citizen
of the United States or of an alien lawfully admitted to the United
States for permanent residence; and
(II) was in possession of an immigrant visa or equivalent
document and was otherwise admissible to the United States at the
time of such admission except for those grounds of inadmissibility
specified under paragraphs (5)(A) and (7)(A) of section 212(a) which
were a direct result of that fraud or misrepresentation.
(ii)252 is an alien who qualifies for classification under
clause (iii) or (iv) of section 204(a)(1)(A) or clause (ii) or (iii)
of section 204(a)(1)(B).
A waiver of deportation for fraud or misrepresentation granted
under this subparagraph shall also operate to waive deportation based
on the grounds of inadmissibility directly resulting from such fraud
or misrepresentation.
(2) Criminal offenses.
(A) General crimes.
(i) Crimes of moral turpitude. Any alien who -
(I) is convicted of a crime involving moral turpitude
committed within five years (or 10 years in the case of an alien
Dear folks,
I am currently in process of submitting my security clearance application for flight school in the U.S. Army. One section of the said application deals with your background up to 7 years and all legal infractions are required to be disclosed.
In 2001, I was held briefly for a visa overstay which I subsequently fixed by gaining permanent resident status and currently I am a USC. Even though this infraction is not required to be disclosed for a secret clearance as it is not within the time frame in question, I am going to disclose it in the remarks section since my fingerprints will reveal that I was brought in by USINS. I mentioned this incident to the civilian security office personnel at our location and she asked me "what kind of crime was it, misdemeanor, felony?" I told them that it was NEITHER, it was a civil offense, however she insisted that it is a criminal offense. I didn't want to argue back since they are going to take care of my application while I was positive that they were wrong.
I would like to cite the Immigration Nationality Act section or any other legal document that explicitly expounds overstay visas are NOT criminal offenses in my application. So far I could NOT find any, could you help me finding it please?
