Birth Tourism, Frequent/Extended Trips, Immigration Status Change: 3 Things That Often Prevent Entry to the U.S. (even though they are not strictly prohibited)

If you had a baby in the United States, made frequent/extended trips to the country, or applied for a change in immigration status during a prior stay as a visitor, you may be stopped from entering the U.S., even though these activities are not strictly prohibited.

This problem arises especially when the U.S. Consulate or U.S. Customs & Border Protection determines you misrepresented the purpose of your visit when you applied for the B-1/B-2 visitor visa and used it or the Visa Waiver Program (VWP) to enter the United States.

Section 214(b) of the Immigration & Nationality Act presumes that most nonimmigrant visa applicants intend to immigrate permanently to the United States. Only certain categories, such as the H-1B  (professional worker) and L-1A/L-1B (intracompany transferee), allow dual intent (i.e. intent to immigrate in the future while maintaining temporary status in the present). Otherwise, nonimmigrant visa applicants must show they have no intent to immigrate and simply seek a temporary stay in the U.S.

When you engage in any of the following 3 activities, you could have problems getting a new visa or gaining re-entry to the U.S. for a temporary stay, although each one, by itself, does not violate U.S. immigration law or make you inadmissible to the United States:

1. Traveling to the United States to have a baby (“Birth Tourism”)

Traveling to the United States on a visitor visa for the purpose of giving birth to a child is commonly known as Birth Tourism.  Under the 14th Amendment of the U.S. Constitution, birth in the United States gives the child automatic citizenship with all its rights and privileges.

Furthermore, birth citizenship provides the  foreign national parent with potential immigration relief. For example, upon turning age 21, a U.S. citizen son or daughter may file an immigrant petition for a parent in the immediate relatives category, which has no numerical limits on immigrant visas available.  A parent who overstays in the United States and is placed in removal proceedings may qualify for Cancellation of Removal and Adjustment of Status (to permanent residence) if she has been continuously present in the United States for at least 10 years, has not been convicted of certain offenses, has good moral character, and her removal would result in exceptional and extremely unusual hardship to her U.S. citizen child.

There is no specific criminal law or immigration law prohibiting birth tourism per se or preventing a pregnant woman from entering the United States. Nonetheless, U.S. consular officers and customs officers often view it as a misuse of the visitor visa status and a gaming of the immigration system to give the child automatic citizenship.

If the officer sees you are pregnant at the time of applying for a tourist visa or requesting admission as a visitor, he may refuse the visa or deny your entry. This is why birth tourists who hail from various countries such as China, Taiwan, South Korea, Russia, Brazil and Mexico, typically come to the United States when their pregnancy is not so obvious.

Even if you succeed in gaining a visitor visa or entering the United States as a visitor to give birth, you might still encounter problems in the future when you apply for a new visa or admission as a nonimmigrant.

A consular officer may deny your request for a B-1/B-2 visitor visa or other non-dual intent visa under INA 214(b) by finding you intend to immigrate due to your having a U.S. citizen son or daughter, or based on mere suspicion that you will use a new visa to give birth in the U.S. again. The U.S. Consulate has sole discretion to make a factual determination on whether you have strong ties to your country to overcome the presumption of immigrant intent.

A non-resident parent who travels with a U.S. citizen child may face tougher scrutiny at the U.S. port of entry. A customs officer who discovers you had a child during a prior visit in the U.S.  may deny your request for admission on a temporary visa and further issue an expedited removal order under INA 212(a)(7)(lack of proper visa or other travel documents), which carries a five-year bar. To be excused from this five-year bar to being admitted to the United States, you need an approved Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal.

In some cases, a consular officer or customs officer may issue a more serious charge under INA 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to gain a visa or entry to the United States), which is a lifetime bar. When such an inadmissibility finding is made by the U.S. Consulate or CBP, there is little or no recourse other than to appeal directly to the agency to reconsider and rescind the decision. As long as the section 212(a)(6)(C)(i) bar holds, you will need a 212(d)(3) nonimmigrant waiver or a Form I-601/212(i) immigrant waiver to be admitted to the United States.

Because a visitor visa may be used for medical treatment, your showing that giving birth in the United States served or serves a health purpose can be a positive factor. An example is if the pregnancy comes with high risks or serious complications. When you are upfront and declare you are coming to the U.S. to give birth, the officer decides, on a case-by-case basis, whether to grant the visa or admission based on proof of strong ties to your country, nonimmigrant intent, and sufficient funds to cover all medical costs.

Paying all medical bills or having your own medical insurance to cover the expenses related to childbirth can help prevent a visa refusal or denial of admission. Ultimately, however, the consular officer or customs officer has discretion to determine whether having a baby in the U.S. is consistent with the purpose of a visitor visa, regardless of whether you cover the medical expenses and do not become a public charge by receiving Medicaid (government assistance) to pay the medical bills.

2. Making frequent, extended visits to the United States

U.S. immigration law allows visitor visa holders to conduct legitimate B-1/B-2 activities for a temporary period, up to six months. Using ESTA (Electronic System for Travel Authorization) if you are an eligible applicant from a Visa Waiver Program-eligible country allows you visit the United States for 90 days or less.

The U.S. consular officers and customs officers expect you to use the visitor visa or ESTA/Visa Waiver program to engage in tourism and recreational activities, visit family and friends, and conduct other temporary visit activities. Remaining in the U.S. for the maximum or close to the maximum time allowed and then quickly returning to the U.S. (e.g. within a month) for another extended stay do not reflect the travel patterns of a real visitor.

Frequent, extended trips to the United States will likely cause the customs officer to suspect you are really living, studying or working in the country without authorization. You may end up with a shorter authorized stay or a warning from the officer. You could also be placed in secondary inspection and questioned extensively so the officer can find legitimate grounds to deny your entry.

You may be asked to withdraw your application for admission or be issued an expedited removal order due to lack of proper travel documents and even due to willful misrepresentation to enter the U.S.  A visa revocation will likely affect your eligibility for a new visa. An inadmissibility finding will stop you from using the ESTA/Visa Waiver program.

There is no minimum time you must stay in your country before returning to the U.S. for another visit. But if you are constantly traveling to the U.S. and staying for long periods, you can expect to run into problems later, even if you were previously lawfully admitted as a visitor without any complications.

3. Applying for a change of status after entering the United States in another status

U.S. immigration law allows nonimmigrants to change from one status to another (such as B-1/B-2 visitor to F-1 student, H-1B professional worker, or H-2B nonagricultural seasonal worker) or file for asylum within the U.S. if they meet the eligibility criteria.

A request for change of status through the filing of a Form I-539, Application to Extend/Change Nonimmigrant Status, or Form I-129, Petition for a Nonimmigrant Worker, with U.S. Citizenship & Immigration Services is often met with several obstacles. One is that USCIS will not approve the status change request unless you are maintaining lawful B-1/B-2 status or other nonimmigrant status.

Questions regarding whether a willful misrepresentation of material fact to gain an immigration benefit might arise when you file for a change of status within the U.S., instead of apply for the appropriate visa at the U.S. Consulate.

B-1/B-2 visitor visa holders, for instance, may be found to have misrepresented the purpose of their stay if they applied to schools or sought employment after arriving in the United States. Even if you did not attend school or work without authorization in the U.S., your taking steps toward a change in status that permits school attendance or employment in the U.S. could signal to the consular officer that you were not a genuine visitor.

Immigration problems can also occur when you apply for adjustment to permanent resident status instead of file for an immigrant visa at the U.S. Consulate. One of the most common ways for a B-1/B-2 visa holder to adjust to permanent resident (green card) status is to enter into a bona fide marriage to a U.S. citizen and have the citizen file an immigrant petition on his or her behalf. While an overstay, by itself, does not prevent adjustment of status based on marriage to a U.S. citizen, providing false information to a consular officer or customs officer about the purpose of the visit creates immigration problems.

In general, the U.S. Consulate applies a 30/60 day rule in determining whether a misrepresentation was made if you conduct yourself in a manner inconsistent with representations made to the consular officers concerning your intentions at the time of visa application or to customs officers when you requested admission.

If a B-1/B-2 visitor, for example, marries a U.S. citizen and applies for a green card within 30 days of arrival, the consular officer may presume the applicant misrepresented his intentions in seeking a visa or admission to the U.S. There is no presumption of misrepresentation if the request for change of status is made more than 30 days but less than 60 days after arrival. But depending on the facts of the case, the officer may still have a reasonable belief that misrepresentation occurred, in which case the applicant receives an opportunity to present countervailing evidence. While USCIS is not required to follow the Consulate’s 30/60 day policy, it sometimes uses it as guidance. 

Seeking asylum in the United States, through a credible fear interview process at the U.S port of entry or through the filing of a Form I-589, Application for Asylum and for Withholding of Removal, after being admitted to the U.S., also signals immigrant intent. If asylum is not granted, it will be very difficult (if not impossible) for you to be re-admitted as a visitor or in another status that requires nonimmigrant intent, at least in the near future.

Conclusion

Having a baby in the U.S., making frequent, extended trips to the country, and applying for a change in status following arrival in another status are not prohibited by U.S. immigration law. Still, if you engage in any of these three things, a U.S. consular officer or customs officer may find that you gamed the immigration system or took unfair advantage of immigration loopholes.

Use proper caution and be aware of the immigration risks and consequences associated with these activities. If you are refused a visa, denied admission or issued an expedited removal order for any of these reasons, consult an experienced immigration attorney to discuss possible remedies.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Meagan

Adjusting to Permanent Resident Status Under INA 245(a): Bars, Exceptions and Exemptions

Section 245 of the Immigration and Nationality Act (INA) allows certain foreign nationals who are physically present in the U.S. to adjust to permanent resident status and avoid filing for an immigrant visa at the U.S. Consulate abroad.

But unless an exception or exemption applies, you are barred from filing for INA 245(a) adjustment if you are in unlawful immigration status at the time of filing a Form I-485 [INA 245(c)(2) bar]; you have violated the conditions of your nonimmigrant status or visa [INA 245c)(2) and INA 245(c)(2)(8) bars]; and/or you failed to maintain lawful nonimmigrant status when you would otherwise be eligible for employment-based immigration [INA 245(c)(7) bar].

Statutory Bars to Adjusting Status Under INA 245(a)

The bars to INA 245(a) Adjustment of Status (AOS) include the following:

1. You Are In Unlawful Immigration Status at the Time of Filing a Form I-485 Application: INA 245(c)(2) Bar

Under INA 245(c)(2), an INA 245(a) Adjustment of Status application will be denied if at the time of the Form I-485 filing, you are not in lawful immigration status. For purposes of the INA 245(c)(2) bar, lawful status includes nonimmigrants (e.g. B1/B2 visitor, F-1 student, H-1B professional worker); refugees; asylees; parolees; and foreign nationals in Temporary Protected Status (TPS​).

You are in unlawful immigration status if you have never had lawful status (e.g. entered the U.S. without inspection and admission or parole) or ​your ​lawful status ​has ended​ (expired or was rescinded, revoked, or otherwise terminated due to violation of nonimmigrant status or other reason).

Having authorized stay is different from having lawful immigration status. The timely filing of a pending application to extend or change status (Form I-129 or Form I-539), or a pending application for adjustment (Form I-485), generally provides authorized stay, but does ​not​ provide lawful immigration status.

​A person who has a timely-filed pending Extension of Status (EOS) or Change of Status (COS) application may file a Form I-485 application after his or her nonimmigrant status expires. But if USCIS denies the EOS or COS application, you are generally considered to be in unlawful immigration status as of the expiration of your nonimmigrant status and on the date the adjustment application is filed. The INA 245(c)(2) bar would then apply, unless an exemption is available.

2. You Failed to Continuously Maintain Status and/or Violated the Terms of Your Nonimmigrant Visa: INA 245(c)(2) and INA 245(c)(8) Bars

You are not eligible to file a Form I-485, Application to Register Permanent Residence or Adjust Status, under ​INA 245(a)​ if, other than through no fault of your own or for technical reasons,​you have ever:

Failed to continuously maintain a lawful status since entry into the United States. [You are barred from adjustment of status under INA 245(c)(2) if you are in unlawful immigration status on the date of filing the Form I-485 application.]

OR

Violated the terms of your nonimmigrant status​, such as worked without authorization. [You are barred from adjustment of status under ​INA 245(c)(8) not only if you violated the terms of your most recent nonimmigrant status, but also if you ever violated the terms of your nonimmigrant status at any time during any prior periods of stay in the U.S. as a nonimmigrant.​]

To be eligible for AOS, you only need to maintain your nonimmigrant status until you properly file a Form I-485 adjustment application with USCIS, ​so​ long as you do not engage in unauthorized employment after filing the adjustment application.​ But to protect yourself from being placed in removal proceedings if your Form I-485 is denied, you should continue to maintain your nonimmigrant status (e.g. H-1B) when possible.

When the ​INA 245(c)(2)​ and ​INA 245(c)(8) Bars May Be Excused

For purposes of ​INA 245(c)(2)​ and ​INA 245(c)(8)​, a failure to maintain lawful immigration status or violation of nonimmigrant status may be excused only for the specific period under consideration if: ​

a. The applicant was reinstated to F, M, or J status

If USCIS reinstates F or M student nonimmigrant status or if the U.S. Department of State reinstates J exchange visitor nonimmigrant status, the reinstatement only excuses the particular period of time the nonimmigrant failed to maintain status. The reinstatement does not excuse prior or future failure to maintain status.​

b. The applicant’s failure to maintain status was through no fault of his or her own or for technical reasons

The term  “other than through no fault of his or her own or for technical reasons”​ ​is limited to the following​ ​circumstances:​ 

  • Inaction of another person or organization designated by regulation to act on behalf of an applicant or over whose actions the applicant has no control, if the inaction is acknowledged by that person or organization.
  • Technical violation resulting from inaction of USCIS
  • Technical violation caused by the physical inability of the applicant to request an extension of nonimmigrant stay from USCIS in person or by mail
  • Technical violation resulting from Legacy ​Immigration and Naturalization Service (​INS​)​’s application of the 5-​year​ or 6-year period of stay for certain H-1 nurses, if the nurse was re-instated to H-1 status as a result of the Immigration Amendments of 1988.​

c. The applicant was granted an extension of nonimmigrant stay or a change of nonimmigrant status.

The immigration officer will consider all your current and previous entries into and stays in the United States, including current and previous applications for extension of stay (EOS) or change of status (COS).

If USCIS approves a timely filed EOS or COS application, or excuses and approves an untimely filed EOS or COS application, the approval is effective as of the date of the expiration of the prior nonimmigrant status. In that event, you will be considered to have maintained lawful​ status ​despite the gap in time between the expiration of the prior nonimmigrant admission and the date of the EOS or COS approval.

3. You Are an Employment-Based Applicant Who Is Not in Lawful Nonimmigrant Status: INA 245(c)(7) Bar

If you are an employment-based adjustment applicant who is not in a lawful nonimmigrant status at the time of filing your Form I-485 application, you are barred from adjusting status under INA 245(c)(7). This bar does not apply if you were in a lawful nonimmigrant status at the time of filing for adjustment, subsequently left the United States, and returned using an approved advance parole travel document while the adjustment application remains pending. ​

For purposes of this bar to adjustment, the term “lawful nonimmigrant status” includes a foreign national in a lawful status classified under the nonimmigrant statutory provisions(e.g. B1/B2 visitor, F-1 student, H-1B professional worker) and a foreign national in Temporary Protected Status (TPS).

​Lawful nonimmigrant status does not include parolees, ​asylees​, or certain other foreign nationals who are otherwise authorized to stay in the United States. ​

Exceptions and Exemptions to the Bars to Adjusting Status Under INA 245(a)

The ​INA 245(c)(2)​, ​INA 245(c)(8), and INA 245(c)(7)​ bars to adjustment do NOT apply to: ​

  • Immediate relatives of U.S. citizens [spouses, unmarried children under 21 years of age, and parents (if the U.S. citizen is 21 years of age or older)]
  • ​Violence Against Women Act (VAWA) self-petitioners/VAWA-based applicants
  • ​Certain foreign doctors/physicians and their accompanying spouse and children​
  • ​Certain G-4 international organization employees, NATO-6 employees, and their family members
  • Special immigrant juveniles
  • ​Certain members of the U.S. ​armed forces​ and their spouse​s​ and children​
  • ​Employment-based applicants in the 1st, 2nd, 3rd and certain 4th preference categories who meet the ​INA 245(k) exemption. [The INA 245(k) exemption applies if your failure to maintain a lawful status, engagement in unauthorized employment, or violation of the terms of your nonimmigrant status or nonimmigrant visa lasted only for 180 days or less since your most recent lawful admission.]

​Bars to Adjustment are Different from Grounds of Inadmissibility​

Bars to adjustment should not be confused with the grounds of inadmissibility listed in INA 212.

When you are inadmissible under section 212, you may not adjust status unless you qualify for a limited exception or unless a waiver of inadmissibility is available, you qualify for it, and it is granted to you. Inadmissibility grounds include health concerns (communicable disease of public health significance), criminal activity, national security, public charge, fraud and misrepresentation of material facts to gain immigration benefits, unlawful presence, and prior removals.

Consult an Experienced Immigration Attorney

Because there are various bars and inadmissibility grounds to prevent AOS, as well as exemptions and waivers available, you need to consult an immigration attorney before you file a Form I-485 application to adjust to permanent resident status.

To learn more, read our related article, Who is Eligible (and Not Eligible) for Adjustment to Permanent Resident Status? 

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Max Braun

 

Who is Eligible (and Not Eligible) for Adjustment to Permanent Resident Status?

When you are physically present in the U.S., your filing for Adjustment of Status (AOS) allows you to become a permanent resident without needing to apply for an immigrant visa at the U.S. Consulate abroad.

But if you are ineligible for AOS and mistakenly file a Form I-485​, Application to Register Permanent Residence or Adjust Status, your request will not only be denied, but you may also be placed in removal proceedings due to failure to maintain lawful nonimmigrant status and/or other grounds.

General Adjustment of Status (AOS) Eligibility Requirements

Foreign nationals may file for adjustment to permanent resident status if they meet the eligibility requirements at the time of submitting their ​Form I-485 application to USCIS.

Who is generally ELIGIBLE for AOS?

Immigrant categories that permit AOS include:

Immediate relative of a U.S. citizen [spouses, unmarried children under 21 years of age, and parents (if the U.S. citizen is 21 years of age or older)]

​Other relative of a U.S. citizen or​ relative of a lawful​ permanent resident under ​a​ family-based preference category (See U.S. Department of State’s Visa Bulletin for a  list of family-based preference categories)

​Person admitted to the United States on a K-1 visa as a f​iancé(e) of a U.S. citizen and then marries the U.S. citizen. [A K-1 visa holder who enters a valid and bona fide marriage to the U.S. citizen petitioner within 90 days of arrival in the U.S. remains eligible to adjust status on that basis, even if the marriage is legally terminated (whether by death, dissolution, or divorce) prior to adjustment of status and regardless of whether he/she remarries thereafter.]

Widow(er) of a U.S. citizen

Violence Against Women Act (VAWA) self-petitioner

​Foreign national worker under an employment-based preference category (See U.S. Department of State’s Visa Bulletin for list of employment-based preference categories)

Foreign national entrepreneur (EB5 immigrant employment-based category)

Special immigrant (includes religious workers, special immigrant juveniles, certain Afghans and Iraqis, certain U.S. armed forces members, certain physicians)

Certain victim of human trafficking  (T nonimmigrant)

Certain victim of crime (U nonimmigrant)

Person granted asylum status

Person granted refugee status

Person selected in the ​Diversity Visa lottery program ​

Beneficiary of INA 245(i) benefits

Who is generally NOT ELIGIBLE for AOS?

With limited exceptions, foreign nationals who are barred from applying for AOS include:

Foreign national ​who last entered the United States without being inspected and admitted​ or paroled by an immigration officer. [INA 245(i) and VAWA-based applicants are exempt from this bar.]

Foreign national who last entered the United States on a C-1/D-1 or D-2 visa as a nonimmigrant ​crewman. [VAWA-based applicants are exempt from this INA 245(c)(1) bar.]

Foreign national who is now employed or has ever been employed in the United States without authorization. [ Immediate relatives of a U.S. citizen, VAWA-based applicants, and certain special immigrants are exempt from these INA 245(c)(2) and INA 245 (c)(8) bars.]

Foreign national who ​is not ​in​ lawful immigration status on the date of filing the Form I-485 application. [Immediate relatives of a U.S. citizen, VAWA-based applicants, and certain special immigrants are exempt from this INA 245(c)(2) bar.]

Foreign national​ who ​has ever ​failed to continuously maintain ​a ​lawful status​ since entry into the United States​, unless the failure ​to maintain status ​was through no fault of his or her own or for technical​ ​reasons.  [Immediate relatives of a U.S. citizen, VAWA-based applicants, and certain special immigrants are exempt from this INA 245(c)(2) bar.]

Foreign national ​who ​was last admitted to the United​ ​States​ ​in​ ​transit​ ​without​ ​a​ ​visa. [VAWA-based applicants are exempt from this INA 245(c)(3) bar.]

​Foreign national who was last ​admitted​ ​to​ ​Guam​ ​or the​ ​Commonwealth​ ​of the​ ​Northern​ ​Mariana​ ​Islands ​(CNMI) ​as a​ ​visitor​ ​under​ ​the Guam or CNMI​ ​V​isa​ ​Waiver Program​ and who is not a Canadian citizen. [Immediate relatives of a U.S. citizens are exempt from this bar.]

Foreign national ​who was last ​admitted ​to the United States as a nonimmigrant visitor without a visa under the ​Visa Waiver Program. [Immediate relatives of a U.S. citizens and VAWA-based applicants are exempt from this INA 245(c) bar.]

Foreign national ​who is​ deportable due to involvement in a terrorist activity or group. [​VAWA-based applicants are exempt from this INA 245(c)(6) bar, but may still be inadmissible for such activity.​]

​Foreign national who is seeking ​employment-based ​adjustment of status and ​who is not maintaining a lawful nonimmigrant status ​on the date of filing this ​application. [In some cases, the INA 245(k) exemption  excuses this INA 245(c)(7) bar.]

Foreign national who has ​ever ​violated​ ​the​ ​terms​ ​of the ​nonimmigrant status. [Immediate relatives of a U.S. citizen, VAWA-based applicants, and certain special immigrants are exempt from this INA 245(c)(8) bar.]

Foreign national who is a ​conditional permanent resident​. [Conditional permanent residents​ must instead file a Form I-751 petition to remove conditions on their status to obtain permanent residence unconditionally.]

Foreign national who was admitted to the U.S. on a K-1 nonimmigrant ​fiancé(e) visa, but did not marry the U.S. citizen who filed​ ​the petition or foreign national who was admitted as the K-2 ​nonimmigrant​ child of a fiancé(e)​ ​whose parent did not marry the U.S. citizen who filed​ ​the petition.​ 

INA 245(a) Adjustment of Status (AOS) Eligibility Requirements

Most applicants file for Adjustment of Status based on ​INA 245(a), which does not include all the possible ways of adjusting status, such as AOS of Refugees or Asylees under INA 209(b)​.

​​The AOS eligibility requirements under section 245(a) include:

1.  You must normally have​ been​ inspected and admitted​ ​into the United States​; or inspected and paroled into the United States.

Unless you are an INA 245(i) applicant or a V​iolence ​A​gainst ​W​omen ​A​ct (VAWA)​ applicant​, you must meet the Inspected and Admitted or Paroled Requirement before you apply for AOS under section 245(a).

To lawfully enter the United States, you must first present yourself for inspection to an immigration officer at a ​U.S.​ ​port of entry.

Admission

For lawful admission to occur, the immigration officer must authorize you to enter the U.S. in accordance with the procedures for admission.​  If, however, the admission was based on a false claim to U.S. citizenship or to U.S. nationality at the ​port of entry​, the lawful admission requirement is not met.

The most common documents showing lawful admission are:

Arrival/​Departure ​Record (Form I-94)

​Admission stamp in passport​, which may be verified using Department of Homeland Security (DHS) systems

Employment Authorization Card (Form I-688A), for special ​agricultural worker applicants, provided it was valid during the last claimed date of entry on the adjustment application

Temporary Resident Card (Form I-688), for special agricultural workers or legalization applicants granted temporary residence, provided it was valid during the​ ​last ​claimed date of entry on the ​adjustment​ application​

Border Crossing Card (Form I-586 or Form DSP-150​), provided it was valid on the date of last claimed entry.​

Plane tickets evidencing travel to the United States, or other corroborating evidence, when an Arrival/Departure Record is not required in the following situations:

  • a ​Canadian ​citizen admitted as a visitor for business, visitor for pleasure, or who was permitted to directly tr​ansit through the United States;​
  • a ​nonimmigrant residing in the British Virgin Islands who was admitted only to the U.S. Virgin Islands as a visitor for business or pleasure​;​
  • ​a Mexican ​n​ational admitted with ​a B-1/B-2 Visa and Border Crossing Card ​(Form DSP-150) ​at a land or sea ​port of entry​ as a visitor for business or pleasure ​for a period of 30 days to trave​l within 25 miles of the border;
  • a ​Mexican ​n​ational in possession of a ​Mexican diplomatic or official passport.

Waved through at port of entry

A wave through is when you present yourself for inspection, but the inspector waves you through the U.S.-Mexico or U.S-Canada land border, and allows you to enter the U.S. without asking any questions or checking your travel documents.  You must present a credible claim and submit supporting evidence, such as​ ​third party ​affidavits ​from those with personal knowledge about your wave through admission.

​Parole

In some situations, you may receive a grant of parole to enter the U.S. This is a temporary, discretionary act and is not an admission. Without determining whether you may be admitted to the U.S., the immigration officer may parole you in for deferred inspection or due to urgent humanitarian reasons or significant public benefits.

Parole in Place may also be issued to certain foreign nationals present without admission or parole, such as ​to a spouse, child, or parent of an ​a​ctive ​d​uty member of the U.S. ​a​rmed ​f​orces, a member in the Selected Reserve of the Ready Reserve, or someone who previously served in the U.S. ​armed forces​ or the Selected Reserve of the Ready Reserve.

2. You must properly file an adjustment of status application.​

The Form I-485 must be filed with USCIS in accordance with ​the ​form ​instructions, when you are physically present in the United States. It must be signed, accompanied by the ​proper filing fee (unless a fee waiver is granted), submitted ​at the correct filing location​,  and filed when the priority date is current.

3. You must be eligible to receive an immigrant visa and an immigrant visa must be available when you file the adjustment of status application​ and at the time of final adjudication.​

Eligibility for an immigrant visa depends on the immigrant category in which you are filing for adjustment. Except for the Immediate Relative of a U.S. citizen category, the family-based and employment-based categories typically require a wait (sometimes for years or decades) before an immigrant visa becomes available.

4. You must be admissible to the United States for lawful permanent residence or eligible for a waiver of inadmissibility or other form of relief. 

You are ineligible for adjustment if you are subject to any inadmissibility grounds listed under INA 212, such as certain criminal offenses fraud or willful misrepresentation of material facts to gain immigration benefits and unlawful presence. A waiver must be available and you must qualify for the waiver if you are inadmissible to the U.S.

​5. You must merit the favorable exercise of discretion.​

The approval of a Form I-485 application under certain categories, including INA 245(a) Adjustment, is a discretionary decision.  This means you are not entitled to adjustment even when you are eligible for it.

Besides evaluating your eligibility, the immigration officer also considers other factors such as your immigration status and history;​ family unity;​ length of residence in the United States;​ business and employment; and​ community standing and moral character.​

Statutory Bars to Adjusting Status Under INA 245(a) 

Bars to adjusting status include unlawful immigration status at the time of filing a Form I-485 (INA 245(c)(2) bar); status and nonimmigrant visa violations (INA 245c)(2) and INA 245(c)(2)(8) bars); and failure to maintain lawful nonimmigrant status when you would otherwise be eligible for employment-based immigration (INA 245(c)(7) bar). There are, however, exceptions and exemptions.

Consult an Experienced Immigration Attorney

Because there are various bars and inadmissibility grounds to prevent AOS, as well as exemptions and waivers available, you need to consult an immigration attorney before you file a Form I-485 application to adjust to permanent resident status.

To learn more, read our related article, Adjusting to Permanent Resident Status Under INA 245(a): Bars, Exceptions and Exemptions.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Approval of Form I-212 + Grant of Immigrant Visa= A True Success Story

A U.S. citizen and his permanent resident sister consulted me about their mother’s immigrant visa case, after the U.S. Consulate found her inadmissible under INA 212(a)(9)(C)(i)(I), i.e. illegal reentry following accrual of more than one year of unlawful presence in the United States.  With my counsel, their mother (my client) filed a Form I-212, Application for Permission to Reapply for Admission Into the United States, which the USCIS Field Office in Salt Lake City, Utah approved on February 17, 2017.

The I-212 approval led the U.S. Consulate to schedule the mother for a follow-up interview and issue the immigrant visa. This was her second immigrant visa application based on an approved I-130 immigrant petition her U.S. citizen son filed for her.

Ten years ago, the U.S. Consulate denied her first immigrant visa application upon finding her inadmissible under INA 212(a)(9)(B)(i)(II), i.e. accrual of unlawful presence of one year or more in the United States prior to departing the country. Because she had no qualifying relative (U.S. citizen or permanent resident spouse or parent) to be eligible for the Form I-601 [INA § 212 (a)(9)(B)(v)] unlawful presence waiver, she had to wait 10 years for that bar to expire. After waiting a decade to file her second immigrant visa application, she was shocked to hear she was still permanently barred under INA 212(a)(9)(C)(i)(I).

The mother’s description of her re-entry into the United States — following accrual of unlawful presence of more than one year — indicated she was “waved through” at a U.S. border checkpoint, even though she lacked proper travel documents. In general, this means the person entered the United States as a passenger in a car after an immigration officer waved the car through the port of entry.

I counseled the family on two different paths the mother could take to obtain the immigrant visa: (a) file a motion to reconsider with the U.S. Consulate, requesting it find that the wave through counted as a lawful admission and was not an illegal entry to trigger the permanent bar under INA 212(a)(9)(C)(i)(I); OR (b) file a Form I-212 application to be excused from the permanent bar.

Because the mother lacked objective evidence of a wave through, the family chose to file a Form I-212 application with USCIS instead of a motion to reconsider with the U.S. Consulate.

The applicant must be outside the U.S. for 10 years before she may file a Form I-212 to be excused from a section 212(a)(9)(C)(i)((I) bar. Luckily, my client had already completed the 10 years while she was waiting for the unlawful presence bar to run. After several discussions with the family, I determined there were sufficient favorable factors to get an I-212 approval.

I worked extensively with the family to prepare their written testimonies and gather supporting documentary evidence to prove their mother regretted her past immigration violations, has good moral character, and did not pose a threat to the American community. I also counseled them on how to establish that her denial of admission would cause unusual hardships to her as well as to her family in the United States. In addition, I prepared a legal memorandum outlining the facts and procedural history, citing to the evidence, and discussing why the mother deserved the waiver based on case precedents, statutory law, and existing policies.

While the Form I-212 application remained pending, I sent a follow-up letter to the USCIS Field Office,  requesting approval and including additional evidence of the hardships the U.S. citizen son, in particular, was suffering due to his mother’s absence from the United States.

After several months had passed, the sister called to ask me whether there were any additional steps to take to get the USCIS Field Office to issue a decision.  I began to explain the various ways  (including seeking Congressional assistance) until she stopped me mid-sentence and started screaming with joy. She had just received a message from her brother stating he received the I-212 approval notice!

The mother’s follow-up interview with the U.S. Consulate occurred in April 2017, and shortly after she was issued the immigrant visa. After 13 long years of separation, she may now finally reunite with her family in the United States.

The brother and sister live in different U.S. states,  and their mother lives in a South American country. Although we communicated by telephone and email and never met in person during the course of representation, we developed a strong, trust-based relationship, which contributed to a favorable outcome. This is a true success story for Dyan Williams Law PLLC and for my client and her family.

Preparing approvable Form I-212 applications are among our main areas of expertise. Clients benefit from the advice we give in filing Form I-212 requests to lawfully re-enter the United States following a removal order or other immigration violation.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Approval of Form I-212 + Grant of 212(d)(3) Nonimmigrant Waiver = A True Success Story

To visit the United States, a visa-exempt Canadian citizen needed a Form I-212 approval because he was previously issued a removal order by an Immigration Judge and thus became subject to a 10-year bar to reentry under INA section 212(a)(9)(A)(ii). He also required a 212(d)(3) nonimmigrant waiver due to a 20-year-old conviction, for which he was found inadmissible under INA sections 212(a)(2)(A) (i)(II)(controlled substance violation) and 212(a)(2)(C)(i)(illicit trafficker in controlled substance).

With my legal representation, he received both a Form I-212 approval and 212(d)(3) nonimmigrant waiver grant from the U.S. Customs & Border Protection in April 2017.  He may now visit the United States as a visa-exempt Canadian citizen.

After the Immigration Court denied his motion to terminate removal proceedings and determined he is removable due to his criminal offense, the Canadian citizen reached out to me for help. Despite being married to a U.S. citizen, he could not obtain a family-based green card or immigrant visa because his criminal record makes him permanently inadmissible and  there is no immigrant waiver for his offense.

He and his U.S. citizen spouse had no choice but to establish a new life in his home country. His spouse, however, continued to hold her American-based job and commute between the two countries for employment purposes.  Being able to travel to the United States and accompany his American kids to see their mother is important to him. He could not re-enter the United States without the necessary permission and waiver.

I guided him on how to prove the favorable factors outweigh the negative factors to get an approval of his Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. I also counseled him on how to address the 3 main factors for receiving a 212(d)(3) nonimmigrant waiver: the seriousness of his criminal offense that makes him inadmissible; his reasons for seeking entry into the U.S.; and why he does not pose a risk to the American community.

Facing writer’s block, my client relied on me to help him prepare his affidavit explaining the underlying circumstances that led to his conviction, describing the positive contributions he made in his profession, and the important roles he plays in his family. In addition, I advised him on the documentary evidence to submit to show he deserves the requested I-212 and 212(d)(3) waiver. Because he has an American spouse and previously applied for a marriage-based  green card, for which he is not eligible, he also had to overcome the presumption of immigrant intent to be admitted as a visitor.

Based on the legal briefs and application packets I prepared, the CBP granted both the I-212 and 212(d)(3) nonimmigrant waiver, which permits the Canadian citizen to visit the United States with his American family. Although there were many variables and obstacles in this case, it turned out to be a true success story for Dyan Williams Law PLLC and the client.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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