Green Card Process (I-485) Admission Evidence Missing



To adjust status to that of a lawful permanent resident of the United States, the green card process requires proof that the foreign national was “inspected” and “admitted” by an immigration officer.

This article highlights some of the key evidentiary issues that are present in the green card process when a foreign national does not have proof of a legal admission.

Porter Law Office, LLC offers comprehensive services to foreign nationals residing in the United States. The experienced immigration attorney at Porter Law Office LLC can help you with an adjustment of status (I-485) application through the marriage green card process.

If you need a U.S. visa, green card, or citizenship, contact the immigration attorney at Columbus, Ohio-based Porter Law Office, LLC to discuss your case.

Legal Analysis for Adjustment of Status under INA § 245

The green card process for an individual residing in the U.S. currently is called adjustment of status. Pursuant to the Immigration and Nationality Act (“INA”) § 245, to be eligible for adjustment of status, the applicant must have been inspected and admitted or paroled, be in lawful status, and not have worked illegally in the United States subsequent to January 1, 1977. See INA § 245.

There also must be a visa number “immediately available” at the time of the application. This requirement refers to the quota availability and preference category under which the person seeks permanent residency. See 8 C.F.R. §§245.1(g).

The adjustment applicant must be able to overcome any and all grounds of inadmissibility (see INA § 212(a) health, crimes, controlled substances, prostitution, human trafficking, national security threats and terrorists, Nazi, totalitarian government supporters, individuals who will be a public charge, EWI entry without inspection, misrepresentation, false claims to US citizenship, stowaways, unlawfully present, unlawfully voted).

Even if a person meets these statutory eligibility requirements, his or her application still may be denied as a matter of discretion. The discretionary factors are family ties in the United States, hardship in traveling abroad, length of U.S. residence, previous immigration violations, and preconceived intent (which refers to the intent that a person may have had at the time of his or her last admission prior to pursuing adjustment of status). If a person is seeking adjustment based on an immediate-relative petition, preconceived intent, standing alone, is not sufficient to deny the application. Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980).

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Green Card Process under INA § 245 for Alien Legally “Admitted” into the U.S. per INA §101(a)(13)(A)

The INA defines admission as the “lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” INA §101(a)(13)(A). According to Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), “inspection” refers to physically presenting oneself for questioning and avoiding making any false claims to citizenship.

It is important to note that an immigration officer does not have to ask the alien any questions, nor is the alien required to offer any information on his own volition.

“Admission,” on the other hand, refers to the inspecting officer communicating to the foreign national that he or she has determined the applicant is not inadmissible.

Lawful entry refers to only procedural regularity in the inspection process. As long as the foreign national follows the proper procedure when presenting his/herself for inspection, then the entry was lawful. Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010).

Secondary Evidence in lieu of Entry Evidence (passport, I-94, etc.)

When an applicant for adjustment of status has misplaced their passport containing proof of valid entry, additional evidence of lawful admission into the U.S. must be provided. Pursuant to the code of federal regulations, two or more affidavits must be submitted when a primary document does not exist that meet the following: (i) the affiants are not parties to the application, (ii) the affiants have direct personal knowledge of the event and circumstances (8 CFR 103.2(b)(2)).

Accordingly, the green card process will require additional evidence when proof of a valid entry has been misplaced. Often times, the applicant will submit an affidavit outlining the circumstances of valid entry along with two other sworn affidavits of persons who are not parties to the petition who have direct personal knowledge of the applicant’s lawful admission as required by 8 CFR 103.2(b)(2).

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Freedom of Information Act (FOIA) Request

A Freedom of Information Act (“FOIA”) request should be conducted to obtain any and all information regarding an applicant’s lawful admission.

Sometimes, the FOIA response will contain prior immigration paperwork submitted by or on behalf of the applicant, which will have corroborating evidence of their entry into the U.S. (for example, the FOIA response may contain prior Form I-485s, prior nonimmigrant visa numbers, the date and place of entry, flight information, A-numbers, and info relating to the applicant’s family).

Standard of Proof in Green Card Process

The standard of proof applied in most administrative immigration proceedings is the “preponderance of the evidence” standard. Thus, if the petitioner submits relevant, probative, and credible evidence that tends to prove the claim is “probably true” or “more likely than not,” the applicant has satisfied the standard of proof. U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring).

Submitting affidavits and other evidence corroborating a valid inspection and admission into the U.S. can establish by more than a preponderance of the evidence that the I-485 applicant was lawfully admitted into the U.S. under INA § 101(a)(13)(A).

Contact an Experienced Ohio Immigration Lawyer

Adjustment of Status Representation

The experienced immigration lawyer at Porter Law Office, LLC is dedicated to assisting individuals navigate the complex green card process. By hiring Porter Law Office, LLC, you be working with an experienced immigration lawyer who understands what it takes establish the best possible plan to obtain you or your family member’s green card through the adjustment of status process. Porter Law Office, LLC is conveniently located outside of Columbus, Ohio in the suburb of Gahanna. If you need help with the green card process, or any other immigration issue, contact Columbus immigration lawyer Matthew R. Porter today for free consultation to discuss your options.