May those who have no passport stamp of entry to the U.S. adjust status?

May those who have no passport stamp of entry to the U.S. adjust status?

The immigration law allows those who have no passport stamp of entry to the U.S. and those who entered without inspection to adjust status if they have the Sec. 245(i) eligibility.  Entry without inspection is limited to those who crossed the border without being inspected by the Custom and Border Patrol Officer. If you have no stamp of entry on your passport you have to prove that you in fact entered without inspection.

Question:        Who qualified under Sec. 245(i)?

Answer:          Those who are the beneficiaries of a family petition or employment based petition filed on or before April 30, 2001 are eligible for Sec. 245(i) benefits.  If the petition was filed before January 14, 1998, no physical presence is required.  If the petition was filed after January 14, 1998, the beneficiary must be physically present in the U.S. on December 21, 2000.  These beneficiaries could be direct or derivative beneficiaries of an immigrant petition or labor certification filed on or before April 30, 2001.  This petition must be approvable at the time it was filed.

Question:        How can the alien proved that he or she entered without inspection?

Answer:          While it is true that the entry without inspection could not be documented, there are corroborative documents that may be presented.  These documents may include plane ticket from the country of origin like the Philippines to the neighboring cities in the U.S. border such as Tijuana, Mexico or Toronto Canada.  Other document that may be required is the issuance of U.S. visa from Philippines to Canada or Mexico which is corroborative of events proving entry to the U.S. without inspection.

Question:        What about those who have no Sec. 245(i) eligibility, can they adjust status?

Answer:          No.  However the Department of Homeland Security is making a proposed regulation to allow them to apply for waiver of unlawful presence while in the U.S. before they proceed to the U.S. Consulate abroad to apply for their immigrant visa.  This proposal is still subject to Congressional approval.  These are alien immigrants who entered the U. S. border without being inspected by the Immigration Officer or entered under a different name.  Any alien who entered without inspection is inadmissible.  This means that they are present in the United States without authorization from the USCIS.  In many cases they get married to a U. S. citizen and they tried to adjust status.  If they have no pending petition on or before April 30, 2001, the sec. 245(i) eligibility, they are not qualified to adjust status.  The only avenue available is to apply for an immigrant visa at the U.S. Consulate in their country of birth.  Under the current law, they will be subjected to 3 or 10 year bar for unlawful presence in the U.S. once they leave the U.S.  The proposed regulation will allow them to file an I-601 waiver of inadmissibility for the unlawful presence while in the U.S.  The waiver is available to an alien who is the spouse, son or daughter of a United States citizen or of an alien lawfully admitted to permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.  Once the waiver is approved the alien can travel to the U.S. Consulate to apply for green card.

Note:               This is not a legal advice.

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