My Visa and I-94 Are Missing—How Do I Prove Lawful Entry for Adjustment of Status?

Immediate relatives of U.S. citizens (children, spouse, or parents) have an application opportunity that many other foreigners eligible for a family-based green card (lawful U.S. residence) do not. As long as they entered the United States in valid visa status (and didn't misuse that visa, secretly intending to apply for a U.S. green card after arrival), they may use "adjustment of status" as the procedure to apply for their green card. In other words, they can submit their green card to, and attend their approval interview at, an office of U.S. Citizenship and Immigration Services (USCIS).

But their eligibility hinges on being able to prove that lawful entry, which can be challenging for some. Here, we'll discuss how to overcome that challenge.

Benefits of Being Able to Adjust Status in the U.S.

Most would-be immigrants to the U.S. must, even if already living in the U.S., complete the last portion of their green card application through a U.S. consulate in their home country. There, they attend an interview and are given an "immigrant visa" to the U.S., which basically turns into lawful permanent or conditional residence upon arrival. (The actual green card is sent by USCIS some weeks later.)

This is more convenient for many, no question. However, there's a bigger concern at stake: The ability to adjust status in the U.S. means, for some immigrants living here, the difference between being able to successfully apply for a green card or not. The reason is that they have become inadmissible by living in the U.S. illegally, having accrued 180 days or more of what's legally termed "unlawful presence" (described in Consequences of Unlawful Presence in the U.S.: Three- and Ten-Year Time Bars). Because of this inadmissibility problem, their departure from the U.S. could result in a time bar upon return, for either three or ten years, depending on the length of the unlawful stay.

Although the law provides a waiver of unlawful presence in cases where the foreign national can demonstrate the extreme hardship that qualifying family members if their immigrant visa and return to the U.S. were denied, it's not easy to qualify for.

As a result, for many applicants for permanent residence who have lived in the U.S. without permission, it's critically important to try to adjust status. Fortunately, even after an overstay of their visa or permitted time in the U.S., applicants in the "immediate relative" category can do just that; again, provided they can prove having made a lawful entry.

How Applicants Normally Prove Lawful Entry to the U.S.

As you will see on the instructions for the green card application (Form I-485 being the primary form), you are expected to include proof of "Inspection and Admission or Inspection and Parole" with your application.

For most people, this means a copy of their stamped passport pages and U.S. entry visa. It also includes what's known as a Form I-94 Arrival-Departure Record, which was at one time a small card physically placed in one's passport by border officials, though it's now simply information entered into a Customs and Border Protection (CBP) database, and accessible to you there.

The I-485 instructions warn that, "If you cannot produce this primary evidence, and DHS has no record of the admission or parole, USCIS will presume that you came into the United States without admission or parole."

Alternatives to Using Passport, Visa, and I-94 to Prove Lawful U.S. Entry

You wouldn't be the first to lack evidence of your lawful U.S. entry. For example, some children never had their own visa, but were named on a parent's B-2 tourist visa, which document was lost after the passage of time and possibly the death of the parent. Or, you might have had your own documents, but had these lost or stolen. Or a border guard might have spoken to you and then waved you through, without asking to see documents.

You are not necessarily out of luck in any of these situations, but it will take some creativity to come up with secondary evidence proving your legal entry.

Submitting a FOIA Request

Your first step should be to do a Freedom of Information Act (FOIA) request, which essentially asks the U.S. government for a copy of your immigration file. (Go to How to Get a Copy of Your Immigration File (FOIA Requests).) This might yield copies of your visa and I-94. If it doesn't, your next step depends on when you entered the United States.

Getting I-94 From CBP Database

If your entry was after April 2013, then you probably didn't receive a paper I-94, but were entered into a computer database. As mentioned, getting a copy of your I-94 (which should be sufficient to prove your lawful entry) is a simple matter of visiting the Customs and Border protection website.

Applying to USCIS for Replacement I-94

If you entered the U.S. before April of 2013, then you likely received a paper I-94. You will need to ask for a replacement, by filling out U.S. Citizenship and Immigration Services Form I-102 and paying a fee. Submit this request by mail, following the instructions on the USCIS website.

If your passport and similar documents were stolen, it would also be a good idea to include a copy of any police report that you filed, to help explain why you don't have the originals.

Submitting Proof of Having Obtained Social Security Number Based on Lawful Entry

The Social Security Administration (SSA) doesn't give out Social Security numbers (SSN) to just anyone. It requires proof of lawful immigration status, which in many cases indicates a lawful entry. If you do, in fact, have a valid SSN, try submitting a FOIA request to the SSA to obtain copies of your file, including records of what you submitted. You might also need to provide evidence of SSA's requirements for approval at the time you applied. (This is getting complicated enough that hiring a lawyer might be well worth it.)

And if there are other government agencies that provided you services or benefits based on your proof of lawful status, you might gain useful forms of proof by requesting copies of their files on you, as well.

Proving Travel Into the United States by a Method Requiring a Visa or Permission

If none of the above works, think about alternative and possibly "home-grown" forms of proof.

If, for example, you arrived legally as a young person, along with your parents, you might be able to find evidence of their and your physical manner of entry into the United States. It's probably a long shot, but if you arrived by plane, might you by chance have a copy of the tickets your family traveled on, or other receipts from your travel to the United States? (It's nearly impossible for an undocumented person to arrive in the U.S. by air, after all.) Do you know who picked your family up at the airport? Would that person be willing to sign an affidavit swearing to those facts?

You might also look into whether any lawyers were involved in your or your parents' obtaining the U.S. entry visa. There's a chance the lawyer would still have your records on file.

Finally (and as a last resort, because personal statements are considered less convincing than other forms of evidence), if anyone else was close enough to you or your family to know details of your mode of entry to the United States, that person could write a sworn declaration or affidavit explaining this. You can prepare your own statement as well, including plenty of detail so as to be convincing. At least two such affidavits would be optimal.

Getting Legal Help

Although it is important to think carefully about the possible types of evidence you might show to prove your lawful U.S. entry, it would also be worth hiring an experienced attorney. to help you with this application. Your success with filing and gaining approval of the adjustment of status application depends on pulling all the evidence together in a convincing fashion.