Many assume that if they entered the United States illegally, there are no immigration options available without leaving the United States. There are several possible ways that you might not have to leave in order to apply for your green card, but here we will focus on just one—the wave-through or Quilantan entry. If you are married to a U.S. citizen and entered the United States legally, then this typically simplifies matters greatly. As a general rule, overstaying your time in the United States and working illegally will be forgiven as part of your adjustment of status. (But there are many complex factors, including engaging in unauthorized conduct shortly after entering on your visa. See here for an example of other complex issues that must be considered.)
You might be surprised to learn that even if your entry into the United States was unlawful, it might still satisfy the legal requirements for an inspection and admission as is generally required in order to apply for your green card without leaving the United States, a process called “adjustment of status.”
If you entered the United States at a port-of-entry and can prove that the entry was “procedurally regular,” then this will suffice as an entry for adjustment of status. From Matter of Quilantan, a court case that addressed this issue, we learned more about what it means to have a “procedurally regular” entry. The law basically says that if you show up before an officer in order to be questioned and are allowed into the United States, then this counts as a proper entry for purposes of adjustment of status—applying for a green card while in the United States instead of going to the U.S. consulate abroad. The one exception to this rule is if you falsely claim to be a U.S. citizen. But keep in mind, telling lies to a customs and border protection (CBP) official might subject you to other immigration problems (grounds of inadmissibility and removability, for example) and possibly even criminal prosecution. Therefore, you should never lie or try to trick or mislead a CBP officer.
The key in these cases is proving the entry. If you entered legally, then proving inspection and admission might be as simple as submitting a copy of your I-94 card. But if you were “waved through”, you might have to submit affidavits or even file a FOIA request with CBP to obtain evidence, for example a photograph of the car you were in showing the tag, proving that you appeared at the port-of-entry as you say you did.
If you are already in the United States and believe that you might qualify for adjustment of status because you were waved through, call an immigration lawyer immediately.
For more information, contact Craig Dobson
Crystal & Giannoni-Crystal, LLC is a “lawyers for lawyers and international matters” boutique law firm. The firm has offices in Charleston, SC, New York, NY, and Washington, DC. The firm is available to serve clients – in association when needed with local counsel – with transactions in Italy, Spain, Germany, France, Portugal, UK, Mainland China, Hong Kong, India, Indonesia, Australia, Latin America, Brazil, and Argentina. In the U.S., we are able to offer our full list of services in New York, including the Bronx, Brooklyn, Manhattan, Queens, Staten Island, and Westchester County, in the District of Columbia, in South Carolina, including Aiken County, Anderson County, Beaufort County, Berkeley County, Charleston County, Dorchester County, Florence County, Greenville County, Horry County, Richland County, Spartanburg County, Sumter County and York County, and the communities of Charleston, Myrtle Beach, Sumter, Florence, Columbia, Lexington, Aiken, Rock Hill, Greenville, Spartanburg, Anderson, and Hilton Head, in Georgia, including Savannah and the whole Chatham county.