Waved Through U.S. Border: How Do I Prove Legal Entry for Adjustment of Status?

U.S. immigration lawyers often get questions like this one: "I came to the United States from Mexico many years ago with friends, and we drove across the U.S. border. At the Customs stop, the guard asked the people in the front seat a few questions, then gave a wave to allow us to go ahead. He did not ask me anything, and I had no visa or other immigration papers. Now I have married a U.S. citizen and wish to apply for a spousal green card (adjustment of status). But the instructions on Form I-485 say I must send in a copy of my passport page showing my nonimmigrant visa. I do not have one! Does this mean I really entered illegally and cannot adjust status?"

The short answer is that someone who was "waved through" is considered to have made a legal entry to the United States (through some courts make exceptions if the person lied, particularly by pretending to be a U.S. citizen). In one notable example, wave-through entries were recognized as a basis for being allowed to adjust status in a 2010 Board of Immigration Appeals (B.I.A.) case, Matter of Quilantan.

However, proving the "wave through" is a more difficult matter. It will be even more difficult if your entry was recent, since this practice is no longer common. We'll provide some guidance for proving a wave-through entry in this article.

The Applicant Has the Responsibility (Burden) to Show Legal Entry

A person who has married a U.S. citizen and now wishes to get a green card through the procedure known as adjustment of status must (except in truly rare cases) show that the U.S. entry included an "inspection" by border officials and a "lawful admission." (See 8 U.S.C. § 1255.)

In theory, the questioner's mode of entry should be found to meet these requirements, because they did present themself to U.S. border officials, did not use fraud (for example, by pretending to be a U.S. citizen), and was admitted according to the required border procedures. Other people have successfully gotten green cards on this basis.

Documenting a Wave-Through Entry

It won't be easy, but if you're planning to adjust status based on a wave-through entry, you'll need to search your records for any sort of receipts showing your location on the Mexico and then the U.S. side of the border, near an official entry point. For example, receipts for gas or other items from shops you stopped at as well as social media postings or photos taken at or around the border can be helpful. Ask any friends you traveled with to look for similar items.

You might also request that your friends or fellow travelers provide affidavits or sworn statements about what happened that day. These carry less weight (since U.S. immigration authorities will assume that friends are willing to lie to protect each other), but they are worth a try.

It's also possible for an attorney to research the policies and procedures used by that particular border post at the time you entered, so as to show that it commonly waved people through with limited questioning.

Getting Legal Help

An experienced immigration attorney will be crucial if you hope to prove a wave-through entry for purposes of adjusting status. There are nuances and variations among federal courts in different parts of the United States regarding how wave-throughs are dealt with. Some immigration officers and judges, particularly newer ones, will be utterly unfamiliar with the law on or past practice of wave-throughs, or unsympathetic unless you can come up with convincing documentation.

An attorney can help both in making the appropriate legal arguments and gathering or suggesting supporting documents, evaluating the strength of your overall claim, preparing application forms, and accompanying you to in-person interviews or court hearings. Also see How to Get a Lawyer to Represent You Pro Bono (Free) in Immigration Court Removal Proceedings.