As an Immigration Lawyer in Houston, every day I speak to people who want to apply for green cards, many of them based on family relationships. I want to get as much specific information as I can so I know how to best present a case.
This always includes understanding how a person got to the United States. Sometimes people explain that they used a visa or Border Crossing Card. Sometimes they tell us a coyote smuggled them in. Sometimes they just say “I entered illegally.”
Last year, I met Maria. She was married to John, a U.S. citizen, and they wanted to get her greencard. They’d been married for several years, and I asked Maria how she first got to the U.S. She said “illegally.” Whenever someone says they entered “illegally,” we always want to know more.
So I asked her if she was on foot, or in a car. She said she was on foot. I asked if she’d gone through a checkpoint when she entered, and surprisingly, she answered “yes.” I asked if she had any documents with her at the time and if she was asked any questions. She said she’d spoken to other attorneys and none had ever asked her about the entry.
At this point, I explained that the specifics of what happened when a person comes into the U.S. are important – they can make a huge difference in a case – sometimes they make the difference between someone being able to apply for a greencard within the U.S. or in another country, with a risk that they might not be allowed to return. Other times, the entry affects whether someone can do anything at all to get legal status.
Why are Facts of a United States Entry Important?
United States federal law controls which individuals are eligible to apply for permanent residence in the United States. U.S. immigration law says that a person can apply for a greencard within the U.S. (called “adjustment of status”) if the person has been “inspected and admitted or paroled into the United States.”
The crucial question for whether an individual can apply for permanent residence without leaving the U.S. – and risking not being allowed to return - is whether he or she was “inspected" and "admitted” or "paroled” into the United States.
People who enters the United States without being admitted or paroled may still be able to apply for permanent residence in limited circumstances – some may have to leave the country and apply at an Embassy, and some may qualify for exceptions to the general rule that a person must be inspected and admitted or paroled.
What Does it Mean to be “Inspected and Admitted” in Immigration Law?
Because the terms inspected and admitted are so central to immigration law, the meaning of these terms has been litigated, and they can mean different things in different contexts.
Inspection is a formal process whereby a foreign national presents himself at the border and a Customs and Border Protection officer decides whether that person may lawfully enter the United States. To have a legitimate inspection, the foreign national must present himself at the border to an immigration official at a U.S. port of entry.
The individual then must answer questions and present any requested documentation. In other words, a person who goes to a U.S. land border or sea port and allows himself to be questioned meets the requirement for an inspection.
However, the most significant exception to this rule is if the foreign national falsely claims U.S. citizenship. An individual who lies and states he has U.S. citizenship in order to enter is considered to have not made a valid inspection.
Once an alien has been inspected, if he is authorized to enter the country by a customs official then he has completed an admission. An admission is any sort of entry into the United States after an alien goes through an inspection and is authorized to proceed into the U.S. Significantly, this means that an alien who enters through fraud or a misrepresentation has still completed a legitimate admission.
However, the misrepresentation or fraud can make the foreign national inadmissible or removable when attempting to adjust status. In summary, if a foreign national goes to a U.S. border and is authorized in some way by a border official to enter without falsely claiming U.S. citizenship then most likely the person was inspected and admitted.
Examples of Inspection and Admission in Immigration Law
Two common situations we see involving a foreign national being admitted to the United States are:
- “Wave Through” Entry, and
- Misrepresentation or False Documents Entry
Wave-Through Entry to the United States
A “wave through” entry happens when a person physically presents himself at the border and without any sort of questioning from an officer is simply waved through. These types of entries usually occur at land borders and involve an individual walking or driving up to a border where a customs official simply signals with his or her hand that the person may proceed. This includes situations where a person is a passenger in a car and the officer only asks questions of the driver.
These situations are in fact valid inspections and admissions, and a person who has entered in this way could be eligible to file for adjustment of status if, for example, he or she is the spouse or parent of a U.S. citizen. However, if the foreign national is hidden in a vehicle that drives up to the border, or if he falsely claims he is a U.S. citizen when at the border checkpoint, this is not considered a wave through entry.
When Maria came to speak with us about her case and ultimately stated that she did go through a checkpoint and was waved through, the next question was proving her admission. Under the Board of Immigration Appeals’s decision in Matter of Graciela Quilantan, the most recent precedent case on this subject, a wave through admission may be proven through a person’s credible testimony about the admission.
At times, no other evidence besides a person’s testimony exists. For this reason, it is important for people who were waved through a port of entry to work with a specialized immigration attorney to present their best case of their admission.
U.S. Entry with a Misrepresentation or Presentation of False Documents
If a foreign national enters the United States by using a false document or by making a misrepresentation that does not involve a claim of United States citizenship, the foreign national is still considered to have been inspected and admitted.
Examples of this situation include presenting a Mexican or Canadian passport or border crossing card that does not belong to the individual. The Courts have ruled that these entries are “procedurally correct” even though they might not be “substantively correct,” and that a procedurally correct entry is sufficient for an inspection and admission. While the noncitizen may need to apply for a waiver or may be inadmissible this does not change the fact that the person completed an admission.
What is “Parole” in Immigration Law?
In immigration law, parole occurs when a person seeks admission, and an immigration officer determined to be an “alien” (in other words, not a Citizen of the United States) and permits the person to enter the United States without determining whether the person may be admitted. Parole is discretionary and is temporary. Immigration officers can parole a person into the U.S. for a variety of reasons. In most cases, a person is paroled into the United States at a port of entry.
However, in some circumstances, a person may be granted “parole in place” – an officer can give a person a document showing that he or she has been paroled in as of the date the parole was granted. Where parole in place is granted, a person does not have to go to a port of entry, but still is considered paroled in and may apply for adjustment of status within the United States if otherwise eligible.
What are my Immigration Options if I have been Admitted or Paroled?
It is important for individuals in the current immigration climate to be aware of their options for attaining lawful status. If your entry to the United States sounds like one of the situations described above, and you are interested in applying for permanent residence, going over your situation with an experienced immigration attorney will help you determine your options. It is important to make sure you fully understand the circumstances of your situation and whether you qualify to apply for permanent residence based on other legal requirements.