How Do I Know Whether I Legally Entered the US?
Oct. 25, 2012
This may seem like a non-sensical question. Everyone should now whether they entered the US legally or illegally, right? Whether through an official border crossing, being inspected by a Custom and Border Protection Officer, carrying proper and valid travel documentation like a passport, and a visa, unless your from Canada or from a Visa Waiver Program country (mostly European Union nations and a few others like Japan, South Korea, etc. who do not need a visa) to enter the US, correct? Wrong.
Many individuals who are here now in the US came when they were quite young with their parents, and often times only know, that they are undocumented, have no social security and state ID or Driver’s License and automatically assume, I’m here illegally, period, and therefore, must have also entered the country illegally with my parents when I was a youngster. They have no recollection of course of the circumstances of their “entry” into the country, except perhaps, anecdotal knowledge from their parents or relatives.
I usually sit down with my clients in these borderline cases and ask them the probing questions and have them talk to their parents, grandparents and other relatives or family friends to ascertain the exact circumstances of how they entered the US many years ago for the following reasons, they may not be cognizant of the fact, that depending on the exact circumstances, they may have “legally” entered the US, even though they themselves do not remember anything of course, but moreover, even their parents or relatives or family friends that brought them here are not aware that if they were “waived through” by a CBP officer at a land border for instance, albeit it with not a single entry document, they are considered to have “legally entered” the US just as if they had officially presented themselves to an inspector, with a passport and visa and subsequently allowed to enter the US.
There is a 2010 case from the Board of Immigration Appeals, see Matter of Quifantan, 25 I&N Dec. 285 (BIA 2010), finding that an alien sufficiently establishes that he has been “admitted” to the United States in accordance with section 101(a)(l3)(A) of the Act, 8 U.S.C. § 1101 (a)(13)(A), where he shows”procedural regularity” in his entry and that he need not show compliance with substantive legal requirements and reaffirming its decision in Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980). The term “admitted” is a term of art in immigration law parlance.
This 2010 BIA case, essentially re-affirmed the 1980 case which established this very important legal doctrine, namely, if an alien is waived through by an inspector, despite not being in possession of any legal entry documents, depending on the surrounding circumstances, and details thereof, this alien who may now be able to proof “legal admission and entry” into the US, can now avail themselves of the great benefit and privilege to “adjust their status” i.e. apply for a green card here in the US with USCIS, instead of having to depart the US to their native country and trigger the 3/10 year bar upon departure from the US if they have resided in the US unlawfully for either 180 days or more (time spent in the US prior to their 18 birthday, even though without permission is not counted, and unlawful presence only starts to accrue after age 18-majority age, i.e. becoming an adult). Many aliens may be eligible for this legal avenue without even knowing it.
It is therefore imperative for an alien, who is undocumented, who is now married to a US citizen for instance, whose spouse wants to sponsor them for a green card, i.e. LPR-Lawful Permanent Residency but is afraid to start the process for fear of having to file the onerous waiver application for extreme hardship to their qualifying relatives (their US Citizen/LPR spouses, parents), and have they’re loved one eventually depart for their native country to apply for the immigrant visa and waiver also known by many as asking for forgiveness from the US government for being in the country illegally or known in Spanish as the “person” can actually apply in the US through the less onerous “Adjustment of Status” application, and not have to depart the US for extended periods of times, not knowing whether their loved one can come back or how long they will be stuck overseas.
If the alien can secure credible contemporaneous evidence from people with relevant knowledge who can attest to the exact circumstances of the alien being “waived through” into the US by an inspector, they can despite the expiration of this seminal law called INA 245(i), a section of the immigration and nationality act code which expired on April 30, 2001, and allowed, US employers or family applicants to sponsor their loved one or employee for a green card provided they would pay a fine of $1,000 and meet all the other legal requirements, and thereby be able to apply from inside the US, called ‘adjust’ can do the same thing, with the fine and in spite the expiration of the law and not having to file a waiver and take the great risk of departure and possible 10 years being banned from the US and their loved ones.
Now, this is just a generalization of this very complex law, and each individuals case and circumstances vary, and it is a very fact specific situation. Notwithstanding, there may be legal options and avenues available to an alien who fits the narrow legal and factual situation like I delineated and tried to describe above, and which would behoove an alien applicant to consult competent immigration counsel and ascertain whether they can fit into this narrow exception.
I have been able to secure green cards for a handful of my clients in the last ten (10) years through the utilization of this legal loophole for alien applicants who never realized that this was even an option, nor, did they until further exploration with their parents for instance even realized that they fit into this narrow loophole exception. Even many fellow immigration practitioners are not familiar with this legal doctrine and therefore, I urge a careful reading and comprehension of the above two (2) BIA cases which are still good law, and determine whether the individual facts in their case warrant such an application.
This article is not intended as specific legal advice and should not be relied upon by an individual as such. Each situation is different and an individual case is fact specific and an alien applicant must consult with competent immigration counsel to determine their individual circumstances. Past success is no guarantee for future success.