Is Illegal Immigration a Felony or Misdemeanor?

Whether illegal immigration is a felony or a misdemeanor depends entirely on what someone did. Crossing the border without inspection for the first time is a federal misdemeanor capped at six months in jail. Overstaying a visa is not a crime at all. The conduct rises to a felony only in specific situations: a repeat illegal crossing after a prior conviction, reentering after a formal deportation, or committing related offenses like marriage fraud or falsely claiming U.S. citizenship.

First Illegal Entry Is a Misdemeanor

Federal law under 8 U.S.C. § 1325 makes it a crime to enter the country outside a designated port of entry, to dodge inspection by immigration officers, or to get in by fraud or misrepresentation.¹ The statute itself does not use the word “misdemeanor,” but federal sentencing law classifies any crime carrying a maximum sentence of six months or less as a Class B misdemeanor.² A first improper entry caps out at six months, so that is where it lands.

The charge focuses on how someone arrived, not how long they stayed. Someone who crossed without inspection ten years ago committed the offense at the moment of crossing. Time does not upgrade or erase it, though federal prosecutors rarely pursue standalone misdemeanor entry charges years after the fact.

Overstaying a Visa Is Not a Crime

People who entered legally on a tourist, work, or student visa but stayed past their authorized departure date fall into a separate category called unlawful presence. This catches a lot of people off guard: overstaying a visa is a civil violation, not a criminal offense. There is no misdemeanor charge, no felony charge, and no criminal trial. The government handles these cases through administrative removal proceedings in immigration court.

“Not criminal” does not mean “no consequences.” Overstaying triggers reentry bars and adjustment-of-status problems that can lock a person out of the country for years, and those are covered further down. But a visa overstay by itself puts no one in a criminal courtroom.

When Illegal Entry Becomes a Felony

A second or subsequent illegal entry after a prior conviction under § 1325 carries a maximum of two years in prison.¹ Any federal offense carrying more than one year but less than five is a Class E felony.² That makes a repeat illegal entry a felony with real prison time, not county jail.

Prosecutors need evidence of the prior conviction to bring the felony charge. Someone who crossed illegally twice but was never convicted the first time would not face the enhanced penalty.

Reentry After Deportation

The most serious immigration-specific crime is coming back after being formally deported. 8 U.S.C. § 1326 covers anyone who was denied admission, deported, or removed and then enters, tries to enter, or is found in the country without permission from the Attorney General. Unlike a first improper entry, the base offense is a felony from the start, carrying up to two years in prison and a fine of up to $250,000.³⁴

Penalties climb based on why the person was originally removed. A removal that followed a felony conviction, or three or more drug or violence misdemeanors, pushes the maximum to 10 years. A removal that followed an aggravated felony pushes it to 20 years.³ “Aggravated felony” is a term of art in immigration law defined by 8 U.S.C. § 1101(a)(43) and reaches further than the name suggests; some state convictions labeled misdemeanors can qualify if the sentence imposed was at least one year.

Related Immigration Felonies

Several crimes tied to the immigration process are standalone felonies, separate from how someone entered:

Marriage fraud. Entering a marriage to evade immigration law carries up to five years in prison and a fine of up to $250,000, making it a Class D felony and considerably more serious than a first improper entry.¹
False claim of U.S. citizenship. Willfully and falsely representing yourself as a citizen is a federal crime under 18 U.S.C. § 911, carrying up to three years in prison. A conviction can also permanently bar future immigration benefits.⁵

These charges often appear layered on top of other immigration violations, though prosecutors tend to pursue the most serious applicable charge rather than stacking them all.

Fines and Civil Penalties

The financial consequences run on two separate tracks. On the criminal side, fines follow the general federal schedule in 18 U.S.C. § 3571 rather than amounts specified in the immigration statute. A first improper entry, as a Class B misdemeanor, carries a maximum criminal fine of $5,000. A repeat entry charged as a felony carries up to $250,000.⁴

Separately, anyone caught entering or attempting to enter at an unauthorized location faces a civil penalty of $50 to $250 per attempt, doubled for repeat violations.¹ These civil penalties apply on top of any criminal fine, not instead of it. No inflation adjustment was made to federal civil monetary penalties for 2026, so the amounts remain at 2025 levels.

Consequences Even Without a Criminal Charge

The system can still hit hard without ever filing a criminal case. Unlawful presence creates time-based bars that block legal reentry after a person leaves the country.

Three-year bar. More than 180 days but less than one year of unlawful presence, followed by a voluntary departure, triggers a three-year bar from the date of departure.⁶
Ten-year bar. One year or more of unlawful presence triggers a ten-year bar after departure or removal.⁶
Permanent bar. More than one year of total unlawful presence followed by a reentry or attempted reentry without admission makes a person permanently inadmissible. The same permanent bar applies to anyone ordered removed who then reentered without permission.⁷

The permanent bar has a narrow escape: after ten years outside the United States, a person may ask the Secretary of Homeland Security to consent to their reapplying for admission. Approval is discretionary.⁷

Being in the country without lawful status also blocks most people from adjusting to permanent resident status from inside the U.S. Under INA § 245(c)(2), someone in unlawful immigration status when they file an adjustment application generally cannot have it approved.⁸ Immediate relatives of U.S. citizens who entered with inspection are the main exception. For everyone else, the adjustment bar combined with the three-year, ten-year, and permanent bars can make legalization very hard, and all of it operates whether or not a prosecutor ever files a single criminal charge.

1
Office of the Law Revision Counsel. 8 USC 1325 – Improper Entry by Alien
2
Office of the Law Revision Counsel. 18 US Code 3559 – Sentencing Classification of Offenses
3
Office of the Law Revision Counsel. 8 USC 1326 – Reentry of Removed Aliens
4
Office of the Law Revision Counsel. 18 USC 3571 – Sentence of Fine
5
Office of the Law Revision Counsel. 18 USC 911 – Citizen or National of the United States
6
Office of the Law Revision Counsel. 8 USC 1182 – Inadmissible Aliens
7
Office of the Law Revision Counsel. 8 USC 1182 – Inadmissible Aliens
8
U.S. Citizenship and Immigration Services. Unlawful Immigration Status at Time of Filing