Being waved across the border could constitute ‘inspection’ for adjustment of status

In most cases, in order for a person to adjust status (obtain a green card) in the US, the person must prove he or she was “inspected and admitted” by an immigration officer at the airport or border (port of entry). This means that the person presented himself to an immigration officer who reviewed his or her visa or other documentation and was allowed to enter the US.

Even if a person is married to a US citizen, the person must ordinarily prove that he or she was inspected (unless, for example, they were “grandfathered” under section 245(i) or have an immediate relative who served in the military). Consequently, people who entered the US without inspection (EWI), or snuck across the border, may not be able to prove they were “inspected,” and may not be eligible to adjust status.

However, in some cases, a person may be able to prove they were “inspected” if they were crossing the border and waved through by the immigration officer. For example, the person was sitting in a car and driving across the border from Canada (or Mexico) into the US. The car comes to an immigration/border checkpoint, and the immigration officer looks inside, perhaps asks the driver a few questions, and says “passo.” That could constitute being “inspected and admitted” for adjustment purposes, as long as the person presented themselves for questioning, and did not claim to be a citizen, even if the officer never asked them any questions.

In a case published by the Board of Immigration Appeals (BIA), a person approached the border as a passenger in a car being driven by her US citizen friend. The immigration inspector asked the friend whether he was a US citizen, but did not ask the passenger anything. The officer then waved the car through the port of entry. Eventually, the person married a US citizen, and the issue was whether being waved through the border constituted “inspection.” The BIA ruled that being waved through the border constituted “inspection and admission” to the U.S.

Please note that if a person claims her or she was waved through the border, the USCIS will require detailed and extensive information on how you crossed the border, such as the make and model of the car you drove in, who was driving, who was in the car, how long did you wait in line at the border, the color of clothing the officers were wearing, what time of day did you enter the US, what was the weather like, how did you get to Canada or Mexico, and where is your Canadian or Mexican visa?

If this situation applies to you, you may want to consult with an immigration attorney to prove your eligibility to adjust status. Please bear in mind that you must have truly been waved across the border vs. saying you were. If you claimed to be a US citizen, or you entered the US with an assumed name passport and visa, or in the trunk of a car, this rule would not apply to you.

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