In order to get a green card from within the United States, one can have a close relative petition for them, and then must file to "adjust" their status. The law requires that in order to adjust status, there must be a type of legal entry into the U.S. This means that someone who did not go through a border checkpoint, but perhaps swam or walked across the desert, evading immigration officials, are not allowed to adjust status. They must leave the United States and go through a consulate process to obtain their greencard and thus their permanent residency.
This can be problematic because another law says if someone were present in the United States for more than one year without lawful immigration status, they cannot return to the U.S. for ten years! There is a waiver available, for example to those who have a US Citizen spouse or parent who would suffer hardship without the applicant's presence. The waiver process can be costly and very time consuming. In addition it may be risky to go outside the U.S. without being sure that you can return.
The provisional waiver can be obtained while within the United States, and then the applicant must leave the U.S. to go to the consulate. This will require typically a minimum of two or three weeks. If anything goes wrong, the person could become stranded outside the U.S.
For the vast majority of people, it is much preferable to stay in the United States to adjust status where possible. Applicants have a better chance for resolving any issues with their application from within the U.S., their attorneys can get involved, and they do not have to travel and incur additional costs and miss work. Even if they get denied, they can try again and are not stuck outside the country.
Whenever someone is eligible to adjust, we usually recommend to do so.
So, what do you do if you did not enter the U.S. with a visa? Can you still adjust status? Remember, there is the requirement that you enter "legally", but what does that mean?
The law says that in order to adjust status you must have been "inspected and admitted or paroled". The courts have found that a person riding in a car through a border checkpoint has been inspected and admitted, even if they don't have a visa! That may sound surprising, but it's true. Many attorneys miss this issue when they are interviewing clients. They ask their clients, "did you enter legall?" But they don't probe deeper.
I have met with many clients who have seen several different lawyers, and who were never told they were eligible to adjust status in the United States. Careful questioning can reveal which clients may be eligible. Instead of asking, did you enter legally, ask, did you cross at a border cehckpoint? Were you in a car? (It's hard to cross illegally in a car). Did you see an immigration officer?
Careful questioning should continue if the answer is yes. What was said? Were they waived through by the immigration officer without talking? Did they say that they were a US Citizen? After analysis by an experienced attorney, if the entry was sufficient, then the person may be eligible to adjust their status. It is risky and not recommended that a person apply through this method on their own without talking with an attorney.
The hardest part of this type of case is proving the manner of entry. Often, there will only be affidavits or written statements by the applicant and others who have knowledge. Sometimes, the person driving the car or assisting will not want to write a statement that will admit to breaking the law if they were involved with smuggling people illegally into the U.S.
We handle many of these cases and have obtained approvals for several clients with this type of entry. Please give us a call if you'd like to discuss your entry with us.