One of the most common issues that clients approach me with are entry issues when applying for Permanent Residency through marriage to a US citizen. The following is a short list of the most common questions that I am asked.
1. What does it mean to make a legal entry into the United States?
To make a legal entry means that you were inspected and admitted by a US Customs and Border Patrol Officer at a port of entry using your proper identification in your name.
2. Is there any situation in which I could be legally admitted into the United States and still not be allowed to apply for Adjustment of Status?
Under most circumstances if you were inspected and admited you will be able to apply for adjustment of status, but there are some excpetions. For example, you could be paroled into the United States instead of being admitted. This means that you were allowed into the US, most likely for humanitarian reasons. Additionally there are some visas that have limitations on your ability to apply for adjustment in the US. An example of this would be a crewman or C-1 visa, a K-1 fiance visa in which you did not marry the original person that petitioned for you or a J-1 visa with a 2 year return requirement. Although the J-1 home rule can be waived.
3. Are there any exceptions in which I cannot prove I entered the US legally, but still apply for Adjustment of Status?
There are a couple of exceptions in which you can still apply for residency based on your marriage even though you did not make a legal entry. The two most common would be under section 245(i) or if you are in removal proceedings and you apply for Cancellation of Removal for a Non-Permanent Residency.
4. What if I am a Canadian and entered the US by car?
In general, US border patrol does not provide any proof of entry on your Canadian passport if you drive through the US-Canadian border. This obviously poses an issue when the burden is on you to establish that you entered the US legally. I often argue that it would be ridiculous to enter the US illegally if you have a valid Canadian Passport, no criminal record and no previous issues with USCIS and would be welcomed in. With that said, I recommend keeping any proof that can establish your trip into the US. These cases tend to be on a case-by-case basis depending on the offer. In general if you can establish though that you have no reason to enter illegally they are granted.
5. What if I entered the US on a Visa Waiver?
As a general rule you are not allowed to change, extend or adjust your status if you entered the US on the Visa Waiver program. There is an exception if you are married to a US citizen. You should apply for the adjustment during the initial 90 days and the burden is on you to establish that you did not have the intent to marry or reside in the US before you entered.
6. What if I did not make a legal entry into the US?
If you did not make a legal entry into the US and if you do not fall under one of the exceptions as mentioned previously, you will have to apply for what is known as Consular Processing. This means that you will have to attend your final interview back in your home country at the US Consulate. You will also have to apply for an I-601a waiver to excuse your entry issue and time out of status. These cases are granted based on establishing hardship to your US citizen spouse or other qualifying relative.
7. What if I entered legally, but overstayed my visa?
If you can establish that you made a legal entry, and as long as you are married to a US citizen, you will still be able to apply for adjustmnet of status here in the US.
8. What if I was inspected and admitted, but using fake documents or by providing false information?
If you were an adult at the time of your entry there are some limited times in which you can apply for a waiver to excuse the offense. If you were a minor, you can argue that it was at the direction of an adult and you could not form the requisite intent to commit the fraud. You still have to establish that it was actually you that entered the US though.
If you have issues or questions concerning your entry, I stronly recommend that you consult with an experienced Immigration Attorney.
Attorney Daniel Fisher can be reached at [email protected] or at 321-278-6873.