Entered Without Inspection? Learn How Your Case May Move Forward in Court

If you entered the United States without inspection and now face removal, you may wonder whether you can still get a green card from the immigration judge. Which route is available to you depends on the facts of your case. Under 8 C.F.R. § 245.10, an alien who is included in the categories of restricted aliens under § 245.1(b) and meets the definition of a “grandfathered alien” may apply for adjustment of status under section 245 of the Act if the alien meets the requirements of paragraphs (b)(1) through (b)(7) of that section.

The Short Answer: Adjusting Status After Entering Without Inspection

Sometimes. Under 8 C.F.R. § 1245.1, an alien who was not admitted or paroled following inspection by an immigration officer is among the aliens listed as ineligible to apply for adjustment of status under that section, unless the alien establishes eligibility under the provisions of section 245(i) of the Act and § 1245.10, is not included in the categories of aliens prohibited from applying for adjustment of status listed in § 1245.1(c), is eligible to receive an immigrant visa, and has an immigrant visa immediately available at the time of filing the application for adjustment of status. People often ask this question after receiving a notice to appear, or while a relative’s petition is pending and they’re unsure what to file. Removal proceedings are where an immigration judge decides these requests. For the broader process, see our removal defense overview. This page covers the two statutory routes, the court setting, and the facts that shape the path.

Why INA 245(a) Usually Blocks People Who Entered Without Inspection

Under 8 U.S.C. § 1255(a), the status of an alien who was inspected and admitted or paroled into the United States, or the status of any other alien having an approved petition for classification as a VAWA self-petitioner, may be adjusted, in his discretion and under such regulations as he may prescribe, to that of a lawful permanent resident if the alien makes an application, is eligible to receive an immigrant visa and is admissible for permanent residence, and an immigrant visa is immediately available when the application is filed. It also requires that you file an application, that you’re eligible for an immigrant visa and admissible, and that a visa is immediately available when you file.

Entry without inspection means you came into the country without presenting yourself to an immigration officer. Because of the inspection rule, that history blocks the regular route on its own, unless you have an approved petition for classification as a VAWA self-petitioner.

Other limits matter too. The same statute bars adjustment for some people who keep working without authorization before filing, or who are out of status on the filing date. Immediate relatives and certain special immigrants are treated differently under that rule, and the bar does not apply at all to someone with an approved petition as a VAWA self-petitioner.

Burden of proof also shapes these cases. If DHS charges you as present without admission, DHS must first prove alienage. After that, you must prove you’re entitled to be admitted, unless you show a lawful prior admission by clear and convincing evidence. 8 C.F.R. § 1240.8 sets out this order.

How INA 245(i) Works and the Grandfathering Rule

Under 8 U.S.C. § 1255, the Attorney General may accept an application for adjustment only if the alien remits with it a sum equalling $1,000 as of the date of receipt of the application, subject to the exemptions stated in that section. The statute sets that sum at $1,000. A child under seventeen, and certain spouses and unmarried children of specified legalized persons, don’t have to pay it.

The main test is grandfathering. You must be the beneficiary of a qualifying visa petition or labor certification filed on or before April 30, 2001, and, if it was filed after January 14, 1998, you must have been physically present in the United States on December 21, 2000. 8 C.F.R. § 1245.10 sets this date; the December 21, 2000 presence requirement does not apply to a spouse or child accompanying or following to join a grandfathered principal. The petition must also have been properly filed, meritorious in fact, and non-frivolous when it was filed.

If the qualifying petition was filed after January 14, 1998, the principal beneficiary must also have been physically present in the United States on December 21, 2000. You prove that presence with several documents showing you were here before and after that date, if no single document does it. 8 C.F.R. § 1245.22 explains how.

Family members can benefit too. The USCIS manual says a grandfathered derivative needs to show only that the qualifying relationship existed when the petition was properly filed. The spouse and child(ren) as of the date of adjustment who are accompanying (or following-to-join) a principal INA 245(i) applicant who is a grandfathered alien are eligible to seek adjustment under 245(i) even though they are not grandfathered aliens in their own right. USCIS Policy Manual, Volume 7, Part C, Chapter 2 covers these rules.

Grandfathering answers only one question. It does not settle whether you are admissible, so every other ground still has to be decided.

Applying for Adjustment Before an Immigration Judge in Removal Proceedings

An immigration judge has exclusive jurisdiction to hear an adjustment application from someone in removal proceedings. That rule applies to cases other than arriving alien cases. 8 C.F.R. § 1245.2 sets out this authority.

The immigration judge hearing your proceeding has exclusive jurisdiction to adjudicate any application for adjustment of status you may file. You carry the burden of establishing that you are eligible for any requested benefit or privilege and that it should be granted in the exercise of discretion. 8 C.F.R. § 1240.8(d) sets out both points.

The judge then issues a decision. It includes findings on inadmissibility or deportability and the reasons for granting or denying the request. The order can direct removal, end the proceedings, or make another disposition. 8 C.F.R. § 1240.12 covers the contents of that decision.

If an adjustment application is already pending before the Executive Office for Immigration Review, you may amend it. The amendment adds Supplement A to Form I-485 and proof that you sent the additional sum. 8 C.F.R. § 1245.10 sets out when an alien who meets the definition of a grandfathered alien may apply for adjustment of status under section 245 of the Act.

Travel is a common mistake. Departure by an applicant under removal proceedings is treated as abandonment of the application, which can end the case. Plan any trip with that rule in mind.

Inadmissibility Bars That Can Still Apply

Even when a route is open, other grounds can block a green card.

Missing a hearing can also close doors. Exceptional circumstances can change that result.

Some grounds can be waived. An applicant must meet all statutory and regulatory requirements, and a favorable exercise of discretion must be warranted. If a ground has no waiver, the application can be denied as a matter of discretion. USCIS Policy Manual, Volume 9, Part A, Chapter 4 explains these rules.

Prior removal orders call for a different filing. An applicant who files a waiver application may also be inadmissible because of a prior removal or unlawful reentry after a previous immigration violation. If the officer determines that the waiver is approvable, the officer should give the applicant an opportunity to file a consent to reapply application, if required (USCIS Policy Manual, waiver eligibility and evidence). The same USCIS chapter points to the consent to reapply form instructions to determine when USCIS may accept the waiver application and consent to reapply application together.

Some waivers require that the applicant establish a qualifying familial relationship. Unless the adjudicating officer finds the underlying evidence unpersuasive, the evidence submitted as part of a previously approved petition or application based on that familial relationship is sufficient to establish the qualifying relationship for the waiver (USCIS Policy Manual, waiver eligibility and evidence).

Other Routes to Compare: Consular Processing and Family-Based Petitions

Some people who cannot adjust in court look at consular processing. That route takes place abroad, at a U.S. consulate, and it has its own timing and departure risks. Leaving the country can trigger the bars discussed above, so the sequence matters.

Family-based petitions are another piece. Our family petitions practice covers how that filing works and how it fits with adjustment. The timing of the petition can change which route is open.

Removal of conditions is a later step. If an immigration judge approves adjustment for an alien spouse, the result is conditional permanent residence. The petition to remove those conditions is made to the director under the regulations. 8 C.F.R. § 1240.11 describes the conditional status. Our removal of conditions work covers that stage.

Which path fits turns on your entry history, your family relationships, and where your case stands today.

Next Steps and How to Reach AG Immigration Law P.A.

Start by gathering the records that show your history. These include records of how and when you entered, prior petitions and receipt notices, court papers, and proof of your presence in the United States over time. Government documents are weighed by their date of issuance, so keep originals and copies together.

If you entered without inspection and a removal case or a relative’s petition is in front of you, the 245(i) question may decide your next step. Adriana Gomez is the responsible lawyer for this page. You can contact our office through the contact form, by phone, or on WhatsApp. Consultations are paid, and you can book one through the office.

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