Seguritan US Immigration Articles

Immigration Fees to Increase Effective Dec. 23

Effective December 23, fees for most immigration applications and petitions will increase by an average of 21 percent.

The increase will be the first in six years. A comprehensive review had determined that the USCIS was not recovering the full costs of processing immigrant benefits. Lack of congressional appropriations especially for the asylum, refugee, military naturalization services, and the SAVE program that were ordinarily reliant upon Congress’ budgetary allocation likewise affected this move.

To recover the full cost of services including costs of fraud detection and national security, customer services, case processing and providing benefits without charge to refugee and asylum applicants, the fee increases had to be imposed, said USCIS director Leon Rodriquez.

For those applying for naturalization, there will be an increase in the standard fee for Form N-400 from $595 to $640. Fee waivers will still be available to those who meet the requirements under the law. A reduced fee of $320 will be offered to naturalization applicants with family income greater than 150% and not more than 200% of the Federal Poverty Guidelines.

For those who are claiming US citizenship due to birth abroad to US citizen parent(s) and need proof of US citizenship through Form N-600 and N-600K, there will be an increase from $600 and $550, respectively, to $1,170. This is essentially a 95% increase compared to the old schedule and one of the more substantial raises.

Fees for family-based petitions will go up as well. I-129F Application for Alien Fiancé(e) will increase from $340 to $535; I-130 Petitions for Alien Relative from $420 to $535. Under the current fee schedule, the total filing fee for a one-step, concurrent filing of Form I-130, Form I-485, Form I-765 and Form I-131 is $1,490; this will be bumped up to  $1,760. I-485 Application to Register Permanent Residence will also increase from $985 to $1,140. I-751 Petition to Remove Conditions on Residence will increase from $505 to $595.

Employment-based petitions will not be exempted either. I-129 Petition for Nonimmigrant Worker will increase from $325 to $460 which is a 42% increase and one of the highest increases for this service since 2007. I-140 Immigrant Petition for Alien Worker will increase from $580 to $700.

I-601 Application for Waiver of Grounds of Excludability and I-601A Application for Provisional Unlawful Presence Waiver will both increase from $585 to $930 and $630, respectively. Fees for employment authorization permits (I-765) will increase from $380 to $410. This increase will affect foreign students approved for Optional Practical Training (OPT), spouses of certain nonimmigrant visa holders as well as recipients of DACA and TPS applicants.

Biometric or fingerprinting fee will remain at $85.

Applications and petitions postmarked on or after December 23, 2016 must pay the new fees or they will not be accepted.

Filing for Adjustment Even if Visa Not Immediately Available

This October which is the start of fiscal year 2017, adjustment of status applications may be filed even if a visa number is not immediately available for the priority date of the applicant. The date of filing the application rather than the date when a visa number is available determines when to file.

This is good news to those who have been waiting for a long time for their priority dates to become current. A pending adjustment application entitles the applicant to work authorization and travel permit.

Every year, there is a limit to the number of immigrant visas issued to various visa categories except those that do not need to be on the wait list like immediate relatives of US citizens since an immigrant visa is always available to them.

Family-based immigrant visas are capped at 226,000 and employment-based immigrant visas are capped at 140,000 annually. The United States Citizenship and Immigration Services (USCIS) and the Department of State (DOS) have established a guide to let applicants know when visa numbers will be available for their particular category.

As a guide, the DOS releases a visa bulletin every month. This lists the availability of immigrant visa numbers and likewise shows the backlogs in each category for a given month. The visa bulletin also shows when an application for adjustment of status (green card application) can be filed.

Up until last year, an application for adjustment of status could only be filed if the visa petitioner’s priority date was earlier than the cut-off date in a particular category. A priority date is generally the date when a relative or employer filed an immigrant visa petition on behalf of the beneficiary.

Starting in October 2015, the visa bulletin has adopted two charts per visa preference category— the Final Action Dates and the Dates for Filing Applications. Essentially, the Final Action Dates indicate when a visa is immediately available and the Dates for Filing Applications are the earliest dates when applicants may be able to apply. For purposes of adjustment of status application, the USCIS said that it will announce every month which of these two charts will be used to determine when application to adjust status may be submitted.

Ever since the start of this new revision, USCIS has used the Final Action Dates to indicate when foreign nationals can submit their application to adjust status (green card application). The Dates for Filing Applications have been used only to notify applicants as to when they can start assembling their documents for submission to the National Visa Center (NVC).

However, for the first month of the new fiscal year the USCIS has announced that adjustment applicants must use the Dates for Filing Applications. This means that they can file for adjustment without waiting for the availability of visa numbers.

If their priority date is earlier than the cut-off date in the chart for Dates of Filing Applications they may file for adjustment of status. For employment-based visa categories, EB-1 is now current worldwide. EB-2 is also current worldwide except for China and India. EB-3 is also current worldwide although the Philippines remains oversubscribed. For the Philippines, EB-3 shows a cut-off date of Sept. 1, 2013 which is about 34 months ahead of the Final Action Date.

For the family-based visa preference, the cut-off date for F1 for the Philippines is May 1, 2006; F2A is November 22, 2015 and F2B is February 1, 2007. The cut-off date for the F3 is January 1, 1995 and for the F4, it is April 1, 1994.

 

Renewing Green Card While Naturalization is Pending

A lawful permanent resident (LPR) who wishes to apply for naturalization should submit his N-400 application while his green card still has at least six (6) months of validity. This is to avoid having to pay the filing fee and biometric fee amounting to $450 for his green card renewal.

While LPRs or green card holders who have resided here in the US for at least 5 years (3 years if married to US citizen) and have met all other requirements for US naturalization can already apply for US citizenship, for some reasons, some wait longer before they apply. A few wait until their ten-year green card is about to expire to apply for naturalization.

It is worth noting that the I-551 or the permanent resident card expires every ten years. To those who want to continue to become green card holders and stay that way, they need to file an I-90 six months before its expiration date.

The USCIS Field Operations Directorate recently clarified in a teleconference that a naturalization applicant with a pending N-400 application must apply for a renewal of his green card if it will expire within six (6) months. This means that the naturalization applicant needs to submit an I-90 with the corresponding filing fees. USCIS will issue an Alien Documentary Identification and Telecommunication (ADIT) stamp as temporary proof of permanent residence upon showing of an I-90 receipt notice.

Take note that if your green card has already expired, you may encounter problems when you travel, seek or keep employment or apply for public benefits.

In addition, not carrying a valid green card is considered a misdemeanor. Section 264 of the Immigration and Nationality Act (INA) states, “Every alien in the United States . . . shall be issued a certificate of alien registration or an alien registration receipt card in such form and manner and at such time as shall be prescribed under regulations . . Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him . . .. Any alien who fails to comply with these provisions shall be guilty of a misdemeanor  …” The punishment for this misdemeanor is a fine of $100 and/or imprisonment for not more than 30 days.

If an LPR has a criminal record he may be putting himself at risk when he renews his green card. He should consult an immigration attorney before submitting his I-90 application. If his crime is a ground for deportation, he may be placed under removal proceedings and will appear before an immigration judge.

Crimes that may subject a person to deportation include aggravated felony, crimes involving drugs, domestic violence, crimes involving moral turpitude and sex crimes.

This procedure for renewing an expired green card does not apply to those who obtained conditional residence on account of their marriage to US citizens or lawful permanent residents or on account of their EB-5 commercial enterprise and financial investment. Conditional residents are issued a green card that is valid for two years. In this case, they need to file a different form, which is I-751 to Remove the Conditions of their green card if they obtained it through marriage or I-829 if they obtained it through EB-5 investment.

Expanded Provisional Waiver to Benefit Thousands

The United States Citizenship and Immigration Services (USCIS) announced last July 29 the expansion of the existing provisional waiver program to include all individuals who are statutorily eligible for the waiver of the unlawful presence ground of inadmissibility. The new rule, which will take effect on August 29 will benefit thousands who are not eligible to file for adjustment of status.

Before the first provisional waiver program took effect on March 4, 2013, applicants who had incurred unlawful presence in the US for more than 180 days, and were not eligible to adjust their status, had to go back to their home country to process their visa application there. They included fiances who entered on a K-1 visa but did not marry their petitioner and also crewmen and EWIs (those who entered without inspection) who were not grandfathered under Section 245(i).

Their departure from the US triggered the three or ten year bar. They were allowed to apply for a waiver of their unlawful presence but this took months, if not over a year. They had to appear first at the visa interview, wait for the denial of their visa application and then file for the unlawful presence waiver from outside the US and wait for its approval there. This discouraged many because of the risks, costs and hardship involved so instead of applying for a green card, they opted to remain undocumented.

To alleviate the hardship brought about by the lengthy family separation, the provisional waiver was introduced. It allowed them to apply for the waiver before their departure to process their immigrant visa application abroad.  However, the 2013 rules only applied to immediate relatives (spouses and children of US citizens and parents of adult US citizens) who can show that their separation would cause “extreme hardship” to their US citizen spouse or parent.

The new rule would cover visa applicants who can show extreme hardship to a US citizen or lawful permanent resident spouse or parent whether their visa petition is family-based or employment-based.

The provisional waiver covers unlawful presence and no other ground of inadmissibility. The application would be made on a new form, Form I-601A Application for Provisional Unlawful Presence Waiver.

Individuals who are not eligible for the provisional waiver would still be able to apply under the old waiver procedure, i.e. depart from the US and apply for the I-601 waiver abroad.

Note that the waiver is provisional in that it would not take effect until after the applicant departs the US, appears at his visa interview and is found by the consular officer as otherwise admissible to the US. But the time that the individual would have to spend abroad would be significantly less compared to that under the old procedure.

We have recently represented a fiancée and also a crewmember and we successfully obtained their provisional waiver in only a few months. They went to Manila for their visa interview and came back with their green card after only a few weeks of stay there.

Preparing for a Marriage-Based Immigration Interview

In a marriage- based adjustment interview, the couple must prove that the marriage was valid and in good faith from its inception and that it was not entered into for immigration purposes.

For couples who live together, have a common social life, do not have a huge age gap, have common interests and same cultural/ racial backgrounds, it is easier to get a petition approved. In other words, “conventional” marital situations usually get approved faster.

However, certain factors or situations or “red flags” could make USCIS want to take a close scrutiny at the marriage. Examples of these are multiple applications/ petitions filed by an applicant/ petitioner, short time between entry and marriage, unusual marriage history, children born during marriage to other parent, unusual or large age discrepancy between spouses, unusual cultural differences, low employment/ financial status of petitioner, and previous marriage to foreign nationals.

In one case, a foreign national who entered with a visitor’s visa remained for a period beyond the six-months given to him. After 5 years, he married a US citizen who filed an I-130 petition for her. During the interview, the officer noted that “there were no discrepancies in their answers” but that they had “no joint information”, neither of them worked and they lived with the US citizen’s mother. There were missing information about how they met that gave “red flags” to the officer.

It is best to go to the interview well prepared. The USCIS officer may ask questions about the data entries made on the I-130 petition. He may also inquire about how you go about your day-to-day life together. The officer may also inquire about the documents submitted with the petition so it is good if you will run through them a few times just to refresh your memory of the information you provided in the petition. Oftentimes, marriage-based interviews can make one falter or uncomfortable even if you have nothing to hide.

Practicing possible scenarios or interview questions is recommended. It can seem intimidating to be asked probing questions so it is advisable to prepare well.

It is not uncommon for USCIS officers to ask about personal details such as information about your relatives, your work and your friends. As long as you have nothing to hide and have a good faith marriage, do not be afraid when the immigration officer does that.

Lawyers’ role in the interview is limited to being observers and they will not be able to help you answer the questions. They, however, may ask the USCIS officer to clarify the question asked.

Be careful not to sign any document withdrawing the visa petition without consulting your lawyer. Do not sign any form stating that the marriage is fraudulent. At any point during the interview, you can ask to stop it and consult with your lawyer.

Paying attention to the question and answering that question is crucial. If the question demands a ‘yes’ or ‘no’ answer, answer it as such, then give an explanation if necessary.

It is of course unavoidable to make mistakes. While it is best to remember important dates like birthdays and anniversaries, oftentimes we find ourselves forgetting a few details. At any point during the interview, you can always go back and change or clarify your answer.

It is also okay to ask for clarification if you do not understand a question. Fully explain what you want to say. Say “I don’t know” or “I don’t remember” if such is the truth instead of making guesses, and don’t say a document exists when it doesn’t. Bear in mind that the officer may ask you to produce the said document later on.

Tips on How to Apply for War Veterans Parole

The US Citizenship and Immigration Services (USCIS) has started accepting applications under the Filipino World War II Veterans Parole Program (FWVP).

To further guide applicants about the whole process, USCIS recently released additional information on eligibility and filing requirements.

Under the said program, one may be eligible to request parole if (1) he is a US citizen or a lawful permanent resident (LPR) living in the United States; (2) he has established that he is either a Filipino WWII veteran or the surviving spouse of such individual; (3) he, the war veteran, or his surviving spouse, has filed a Form I-130, Petition for Alien Relative, for a family member and it was approved on or before a visa parole was requested; and (4) an immigrant visa is not yet readily available.

The beneficiary on the I-130 petition filed by the war veteran or his surviving spouse must have a qualifying legal relationship with the war veteran on or before May 9, 2016. The spouse and children under 21 years old of the principal beneficiary may also be eligible for the benefit but only if the principal beneficiary is approved for parole.

In cases where the WWII veteran and his spouse are both deceased, principal beneficiaries may request parole on their own behalf provided that USCIS approved the petition while the petitioner was alive, and then reinstated the approval after death. In cases where the petitioner died before the USCIS approved the petition, the beneficiaries can still seek to avail of the visa parole as long as they can prove that at least one beneficiary of the I-130 petition was living in the US at the time of the petitioner’s death and continues to live here in the US.

The self-petitioner must prove that he/she is the son, daughter, brother or sister of the deceased veteran and the veteran was living in the US at the time of death and that the veteran’s spouse is also deceased.

Principal beneficiaries who are already here in the US may benefit from the program but they need to appear before a USCIS office or consulate abroad to fully process their visa parole application. If found eligible to travel, the said relatives will be given travel documents to allow them to return to any port of entry in the US. This may not be as easy for those whose departure from the US may trigger certain bars. It is important to consult an immigration lawyer before pursuing any further steps.

For beneficiaries to be considered for the FWVP, Form I-131, Application for Travel Document must be submitted for each qualifying family member. A copy of the Notice of Action approving the I-130 petition or any evidence that USCIS has approved the petition in behalf of the relatives must be included along with the applicable fees or a fee waiver request, if eligible, and Form I-134, Affidavit of Support for each family member. Also needed are supporting documents that the petitioner is either a Filipino World War II veteran whose military service has been recognized by the US Department of Defense or the surviving spouse of said veteran. A self-petitioner, in addition to the ones earlier mentioned, should establish their relationship with the veteran and that the veteran’s spouse is deceased.

The parole is temporary and is good for three years. Work authorization may be obtained upon submitting a Form I-765 application. The parole in and of itself does not lead to an immigration status. The parolee is expected to apply for green card once his visa number becomes available. He should not remain in the US past the period of his parole without applying for adjustment of status or a parole extension.

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H-4 Employment Authorization Guideline

A question and answer guideline concerning the employment authorization for certain H-4 dependent spouses was recently released by the USCIS. It provides information on eligibility, the application process, adjudication and processing times.

The H-4 employment authorization rule took effect on May 20, 2015. Many have already applied for the benefit but further clarification of the process was needed.

Under the rule, eligible are the spouses of H-1B nonimmigrants who are the beneficiaries of an approved I-140 immigrant petition or who have been granted extension beyond six years under the AC21 law.

The I-140 need not have been filed by the current H-1B employer or by the employer who had filed the H-1B petition.

The I-140 must not have been revoked. Both the spouse and the dependent must be maintaining their nonimmigrant status.

The authorization is unrestricted. This means that you as a dependent spouse may work anywhere or engage in self-employment or start a business.

If you file you must submit a paper I-765 application, not an electronic form, and submit supporting documents. Supporting documents include evidence of H-4 nonimmigrant status, evidence of your relationship with your H-1B spouse such as your marriage certificate and documents proving his/her H-1B status. This could be a copy of Form I-797, Notice of Approval for the Form I-129 filed on your spouse’s behalf. This could also be a copy of your H-1B spouse’s Form I-94, personal data page in his/her passport, visas on which he or she last entered the US and the latest US admission stamped in his/her passport.

If your spouse’s H-1B status is based on the AC21 law, you must include evidence that your H-1B spouse is the beneficiary of a Permanent Labor Certification Application filed at least 365 days before the expiration of his/her six-year stay. This could be a copy of a printout from the Department of Labor (DOL) showing the status of the Permanent Labor Certification Application filed on his/her behalf.

You may also submit proof that your H-1B spouse’s Form I-140 was filed at least 365 days before the expiration of his/her six-year stay as an H-1B. An example would be to include a copy of your H-1B spouse’s Form-I-797 Receipt Notice for the Form I-140.

If you are applying based on your spouse being a beneficiary of an approved Form I-140, submit a copy of the approval notice of his Form I-140 or if unavailable, anything that could explain why it is unavailable.

If you are unable to obtain the abovementioned documentation for whatever reason, sworn affidavits by non-parties who have direct knowledge of the relevant events and circumstances may likewise be submitted as substitute evidence.

While the I-765 is pending, you may travel if you are currently in status and meet all other admission requirements. If the I-765 is filed concurrently with your I-539 change of status to H-4, travel will be treated as abandonment of application.

Processing time is about 90 days. The employment authorization card cannot be used to enter and exit the US.

Problematic Relative Petitions

A US citizen or a lawful permanent resident (LPR) petitioner may encounter a number of issues when filing for his/her spouse. Commonly encountered are issues relating to the petitioner’s previously filed petitions, huge gap in the age of petitioner and beneficiary, their cultural differences, language barriers and other USCIS-identified marriage fraud indicators.

The USCIS looks into previously-filed petitions when adjudicating a petition currently pending before it. There is no prohibition on filing multiple petitions; however, an LPR who obtained his residence through prior marriage cannot file a petition for a spouse within 5 years of the date when he became an LPR. To overcome this prohibition, the LPR must establish by clear and convincing evidence that the prior marriage was entered into in good faith or it ended through death.

Marriage entered into solely for immigration benefits is considered fraudulent and are not recognized for immigration purposes. The USCIS looks at a number of factors indicating sham marriage or where the couple lacks the intent of establishing a life together at the time of the marriage.

The following factors could be interpreted as indicating sham marriage: huge gap in the age of petitioner and beneficiary, their inability to speak each other’s language, vast difference in cultural and ethnic background, family and/or friends are unaware of the marriage, the marriage is arranged by a third party, discrepancies in the statements on questions for which a husband and wife should have common knowledge, no cohabitation since marriage, and petitioner has previously filed petitions on behalf of prior alien spouses.

Where there is a large disparity of age between the petitioner and the intending immigrant, the USCIS will scrutinize the relationship more thoroughly to determine whether they married in good faith. It is easier for couples who have been married for many years to provide documentation proving that they have a bona fide marriage.

Evidence of good faith marriage include proof of combined financial resources, shared residence, proof that beneficiary is listed as petitioner’s spouse in insurance policies, tax forms, bank accounts and other evidence such as photographs.

The petitioner must prove by a preponderance of evidence that the marriage is bona fide. For recently married couples who cannot provide proof of shared residence as the beneficiary is still living abroad, it is best that they document their correspondence and collect as many documentary evidence of the time spent together.

Another fraud indicator is where the petitioner and intending immigrant speak different languages. In this case, the USCIS will investigate as to how the spouses are communicating with each other and whether they are trying to learn each other’s language. As to vast difference in religious and cultural beliefs, the USCIS will most likely look into how the couple will celebrate the holidays and how they will practice their religious beliefs.

Where fraud indicators are present, the USCIS will review and examine the relationship with more scrutiny, and may conduct investigations and field examinations.

Resurrecting A Revoked Family Petition

US citizens and lawful permanent residents may petition their relatives for a green card. Visa numbers are immediately available to immediate relatives namely spouses, parents and unmarried children of US citizens so that the process will be relatively quick.

However, beneficiaries who are not immediate relatives could face lengthy backlogs. Because of the lengthy wait times, it is possible for the petitioner to pass away between the time of the I-130 Petition for an Alien Relative and the availability of a visa number. Since as a rule, the death of the petitioner results in the death of the petition all together, this situation results in the revocation of the approved I-130 petition. For many foreign nationals, this could mean the end of their dream to live in the United States.

The good news is that the United States Citizenship and Immigration Services (USCIS) grants the USCIS director the discretion to reinstate the I-130 petition through humanitarian reinstatement. It is worth noting though that this form of relief is only available and may only be requested by the principal beneficiary of an approved I-130 petition. If the petitioner died before or pending the approval of his petition, this form of relief will not be granted.

There is no form or fee required to ask for this relief. You need to make a written request addressed to the USCIS office that originally approved the I-130 petition.

In your request, you need to state your name as well as the deceased petitioner’s name. Make sure to include the receipt number of the approved petition, your’s and your deceased relative’s alien registration number, if you have one, death certificate of the deceased relative, and you need to have a substitute sponsor. Your substitute sponsor has to be a US citizen or a lawful permanent resident, at least 18 years of age and must be any one of the following: your spouse, parent, mother-in-law, father-in-law, sibling, child, son-in-law, daughter-in-law, sister-in-law, brother-in law, grandparent, grandchild, or legal guardian. You need to submit an I-864 (Affidavit of Support) from the substitute sponsor.

Given that this is also a discretionary relief on the part of the director, you need to show in your request that a favorable exercise of said discretion is warranted due to any one of the following factors: disruption of the family unit, advanced age or health concerns, lawful residence in the US for a lengthy period of time, ties or lack thereof to the home country, other situations like long government processing timelines and procedural delays, among others. You need to make sure that these factors will be backed up by evidence to lead the director to decide in your favor.

In 2009, Congress passed a law that provides great relief to I-130 beneficiaries already present in the United States at the time of the petitioner’s death. These beneficiaries may have their pending visa petition and adjustment of status application approved if they are surviving relatives under the law and they meet the residence requirement. In these cases, the petition does not die with the petitioner, so to speak.

The deceased qualifying relative may be the petitioner or the principal beneficiary in a family-based immigrant visa petition, the principal beneficiary in an employment-based visa petition, the petitioner in a refugee/asylee relative petition, the principal alien admitted as a T or U nonimmigrant, or the principal asylee who was granted asylum.

Furthermore, the surviving relatives must have resided in the United States at the time of the petitioner’s death, and continue to reside in the United States. For purposes of this law, “residence” need not be lawful US residence.

Lawful Admission Required for Adjustment of Status

One of the requirements for adjustment of status is the alien’s lawful admission to the United States. This means that the alien must have been inspected, admitted or paroled into the US.The Immigration Nationality Act (INA) defines the terms “admitted” and “admission” as “the lawful entry of a noncitizen following inspection and authorization by an immigration officer.”

For foreign nationals who enter the US by air or sea and who are processed by the U.S. Customs and Border Protection (CBP), lawful admission is generally easier to demonstrate as they are normally issued an I-94 Form upon entry.

Since April 2013, the CBP no longer issued the paper I-94 and created an electronic I-94 Form based on the foreign national’s travel documents. The electronic Form I-94 may be printed by accessing the CBP’s website. Aside from the I-94, the CBP office also makes an annotated admission stamp on the foreign national’s passport which may also serve as proof of lawful admission.

However, for those travelling by land, there have been instances when border officials simply “wave through” foreign nationals who enter the US by car without asking any questions. Was there lawful admission in this case?

In a 1980 case, the BIA held that an alien who was “waved through” and who did not make a false claim to citizenship was “inspected” and “admitted” to the US for purposes of adjustment of status. In that case, the alien was a passenger in a car entering the US. The border official waved them through after questioning the driver. She was not asked any question nor did she volunteer any information.

The BIA reasoned that the noncitizen was “inspected” when she physically presented herself for questioning and did not make a false claim to citizenship and she was “admitted” when the officer permitted her to enter the United States.

In 1996, Congress enacted the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) and amended the INA to define the meaning of “admitted” as being “the lawful entry of a noncitizen following inspection and authorization by an immigration officer.”

However, the Board reaffirmed its earlier decision. The Board held that “lawful entry” did not require that the entry be substantially regular; it only had to be procedurally regular. In this case, the noncitizen was also a passenger of a car crossing the US-Mexico border. She was not asked any questions and was waved through by the border official. It held that, just like in an earlier case, the admission was procedurally regular and met the definition of “admission” under the INA.

Thus, if a noncitizen does not make false claim to citizenship, is not asked any questions, does not volunteer any information, and is waved through by a border official, he has been “admitted” even if he did not have valid entry documents.

The noncitizen does not gain lawful status upon entry in the United States and is still removable for being “inadmissible at the time of entry”. However, since the noncitizen was “admitted”, he is eligible for immigration benefits, such as adjustment of status in the US, if the noncitizen later on marries a US citizen, subject to other requirements under the law.

Where primary proof of lawful admission is not available such as in the case of the noncitizen who was waved through, secondary evidence may be submitted. Secondary evidence may include affidavits regarding admission.

A request for evidence (RFE) is expected when secondary evidence of lawful admission is submitted. A timely response to the RFE must be submitted even if the requested documents have already been initially submitted.

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