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

Proving that a green card applicant was lawfully inspected and admitted to the U.S.

Question

I came to the United States with a couple of 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, and then gave a wave to allow us to go ahead. He did not ask me anything, and I did not have any visa or other immigration papers.

Now I have married a U.S. citizen and wish to apply for a green card. But the instructions to the I-485 application for adjustment of status say I need to 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?

Answer

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 show that the U.S. entry included an “inspection” by border officials and a “lawful admission.”

Your mode of entry will very likely be found to meet these requirements, because you did present yourself to the U.S. border officials, you did not use fraud (for example, by pretending to be a U.S. citizen), and you were admitted according to the required border procedures. Other people have successfully gotten green cards on this basis.

But you will want to consult an experienced immigration lawyer to make sure that this is still how the law is being interpreted in your area. In some cases that have come before U.S. federal courts, the courts have also added the requirement that the entry be “lawful” in terms of the applicant’s underlying eligibility for admission – in other words, that the person have had an actual visa for U.S. entry.

Assuming that, within your federal court jurisdiction, your method of U.S. entry is still considered lawful, your next step will be to prove that you were really waved through the border (as opposed to say, crossing at an unguarded point with a coyote).

This may require getting a sworn statement from people who were traveling with you, presenting any evidence showing that you were in that area at that time (for example, receipts from the shops you may have stopped at on either side of the U.S. border) and researching the policies and procedures used by that particular border post at the time you entered to show that it commonly waved people through with this limited level of questioning.

Again, getting an attorney’s help with this process would be an excellent idea.

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