Understanding your entry and entry history to the United States is one of the most important pieces of information needed to properly evaluate your immigration standing in the United States and determine if you are eligible to adjust your status. The way in which you entered the United States can significantly impact your immigration case and may prevent you from adjusting your status.
There are a variety of entry categories:
with fraudulent documents; and
Sometimes it's difficult to categorize your entry.
Entries v. Attempted Entry
The first step in determining your entry status is to determine if you actually "entered" the United States. Every "entry" is not legally considered an entry (confusing right!).
Let's look at ways in which you may have entered the United States or attempted entry:
Consider an Entry
1. Admission - You entered the United States with inspection.
2. With out Inspection - You entered the United States without inspection (no contact with CBP).
3. Waived Through - You were admitted into the United States without being asked any questions or having any documentation with you.
4. Misrepresentation - You entered the United States by misrepresenting your legal status (other than a false claim to citizenship) or using false documents.
Not Considered an Entry (attempted entry)
1. Apprehended by CBP and voluntarily returned.
2. Apprehended by CBP and given expedited removal.
Entry and Impact to Adjustment of Status
Now that you are in the United States you may want to adjust your status. You may want to go from an undocumented status (illegal) to a documented status (legal) or change from one documented status to a different documented status. Your ability to do so depends on how you entered the United States. Let's look at how your entry impacts your ability to adjust your status.
You entered the United States at a legal port of entry, presented real documents, and had an interaction with an immigration official.
If you've entered the United States with a valid visa and you can confirm your entry by either a passport stamp or an I-94 you may be eligible to adjust your status if you meet other requirements and do not fall under any of the bars to adjustment.
2. Without Inspection
When you entered the United States you did not enter through a legal port of entry nor did you have an interaction with an immigration official. You do not have any documentary evidence of proof of admission into the United States.
If you entered the United States without inspection you are generally ineligible to apply for permanent residency from within the United States, however you may be able to overcome this.
3. Waive Through
A Waive through is a mix between an admission and entrance without inspection. You presented yourself at a lawful port of entry, but you were not asked any direct questions. The immigration officer waived you through with a hand gesture. You did not receive a visa stamp and there is no way to verify your admission into the United States.
If you entered the United States via a waive through you are generally eligible to adjust your status. Note, proving a waive through occurred can be difficult. You will need to present so evidence that you travel through a legal port of entry.
You entered the United States by using a fraudulent visa or other document, or a document that did not belong to you other than a false claim to U.S. Citizenship.
If you entered the United States via misrepresentation you will need a waiver for inadmissibility before adjusting your status. However, this is a lawful entry for purposes of adjustment of status and you do not need to exit the United States to adjust your status.
Note, if you entered the United States by a false claim to United States citizenship (either stating citizenship, showing a false birth certificate, or a birth certificate of another person) you will be treated as entering without inspection and you are generally ineligible to apply for permanent residency from within the United States. Additionally, there is no waiver for false claim of citizenship and you may be ineligible for any form of relief.