Green card from the back seat of a car?

Dear Attorney Gurfinkel:

I am a US citizen, and want to petition my husband, who is TNT. He came to the US from Canada, without any visa. He was sitting in the back seat of his cousin’s car, and when they came to the border, the immigration officer asked the cousin a few questions, and let them go through. The officer did not ask my husband anything.

If I petition my husband, will he have any problems, as I don’t want him to go back to the Philippines, since he would be subject to a ten-year bar from returning?

Very truly yours,

F.Z.

Dear F.Z.:

Ordinarily, if a TNT wants to adjust status (be interviewed for a green card) in the US, the person must have been petitioned before April 30, 2001 (and thus have the benefit of a law called Section 245(i)) or, if being petitioned by a US citizen spouse, must prove that he or she was “inspected and admitted” into the US. This means physically presenting himself to an immigration officer at the Port of Entry (border or airport) with an appropriate visa or other entry document. However, in your husband’s case, he was sitting in the back seat of a car, and it seems that the immigration officer simply waved the car through. Thus, the question is whether your husband was “inspected and admitted.”

Recently, there was a decision by the Board of Immigration Appeals (BIA) which reaffirmed long-standing policy and case-law that a person is considered to have been inspected or admitted to the US if he presented himself for inspection at the Port of Entry, even if the inspecting officer allows the person to enter the US without asking any questions or the presentation of any visa.

In that BIA case, the person had applied for a visitor’s visa, but her application was denied. A few days later, without a valid entry document (i.e. no visa), the person approached the border as a passenger in a car being driven by her US citizen friend. According to the person, the immigration inspector asked her friend whether the friend was an American citizen, but did not ask the alien anything. The officer then waved the car through the Port of Entry, and the person was able to enter the US. The person later married a US citizen, who petitioned her. However, her adjustment of status application was denied because USCIS determined that she had not been “admitted” to the US.

The BIA concluded that the alien was eligible for adjustment of status, stating that, “an alien who has physically presented herself for questioning and made no knowing false claim of citizenship had satisfied the “inspected and admitted” requirement of Section 245(a) of the Act.” Moreover, an admission “occurs when the inspecting officer communicates to the applicant that he [the inspecting officer] has determined that the applicant is not inadmissible.” In this particular BIA decision, the immigration officer only spoke to the driver of the vehicle, and allowed the vehicle to enter based on the driver’s declaration of US citizenship. The immigration officer did not ask any questions to the alien, and did not make any determination concerning her admissibility to the U.S. So, the alien was considered “admitted” and eligible to adjust status in the U.S.

Of course, this decision does not help people who snuck across the border (or “entered without inspection” (EWI)), or entered as crewmen or K-1 fiancées. However, this case could be of help to people who presented themselves at the border and the immigration officer waved them through, without asking any questions. Per this BIA case, that would constitute “inspection and admission” to the U.S., such that if the person does not have 245(i), and is being petitioned by a U.S. citizen spouse, there could be hope.

If this is your situation, I would strongly recommend that you seek the advice of a reputable attorney, who can evaluate your situation, and help package and present your case to demonstrate your eligibility for adjustment of status in the U.S.

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