Here without papers? But married to a U.S. citizen? You may have options

Many immigrants from Mexico came to the U.S. as young children. Often they were driven across the border through the port of entry at San Ysidro or elsewhere, and waved through by border inspectors. This was before 9/11 and tight security measures at the border.

Flash forward a decade or two. In 2010, the Board of Immigration Appeals decided that people who could prove “procedural regularity” in their entry to the U.S. could establish they had been “inspected and admitted” to the United States. That case, known as Matter of Quilantan, has made it possible for certain immigrants to apply for the green card, provided they did not run afoul of other admissibility requirements and had a means to get the green card. Eligibility is limited to immigrants categorized as “immediate relatives,” which means they either are married to a U.S. citizen or are the parent of a U.S. citizen who is at least 21 years old.

What does this mean in practice? If you came across the border through a port of entry and presented yourself for inspection, even if you were a sleeping child being driven across in a car and had no visa to enter the U.S., you may be eligible to apply for a green card through your marriage to a U.S. citizen. In practice, this means preparing a sworn declaration about your manner of entry and, if at all possible, sworn declarations from other people who were present when you crossed the border and have direct knowledge of your entry into the United States. You will be grilled at length by the immigration officer about your entry, and your testimony must be consistent to convince the officer that you did indeed make a procedurally lawful entry into the United States.

I have successfully filed these cases for clients who were driven across the border as young children, and are now married to U.S. citizens. It is a huge benefit for people who despaired that they could never legalize their status, and now are thrilled to have green cards. This strategy is not limited to people who came from Mexico, but could apply to anyone who had a procedurally lawful entry, and is now married to a U.S. citizen. (I have not handled a case for the parent of a U.S. citizen, but that is possible as well.)

Of course the most important element is that the applicant’s story must be true. As an attorney, I question my clients closely about how they came across the border and only take a case if I am convinced the story is real. The challenge then is to also convince US Immigration and Citizenship Services that the story is real. More about those challenges later.

Posted in Articles by Pamela Hartman

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