Options for those who no longer have their passport or proof of lawful entry into the United States

Here is a common scenario with respect to immigration issues in the Pacific Islander community: You arrived in the United States many years ago on a tourist (B1/B2) visa. You were supposed to return to your country of origin within 6 months, however, you chose to remain in the US past the expiration of your visa. You NOW have a US Citizen Spouse, child (over 21), or parent (if you are under 21), who can petition for you to become a lawful permanent resident (green card holder). The problem: you no longer have your original passport, visa, or I-94 that you arrived with all of those years ago. What do you do?

There are three options available:

(1) Try and obtain a copy of your I-94. This option requires filing a form with immigration and basically PROVING that you arrived in the United States with a visa and that you were inspected and admitted by a customs/immigration agent. LOGICALLY, we know that as a Pacific Islander, you HAD to have come with a visa because you can't swim here -- but logic, unfortunately, is not enough. In order to prove your legal admission into the US, you have to have very specific details about your arrival and the more specific, the better. This would include what carrier you flew here on, the exact date of your arrival and what airport you flew into, perhaps a copy of your ticket (but lets face it, if you don't have your passport any more, you probably don't have your airline ticket either), a statement from someone you traveled with/someone who saw you on the plane/the person who picked you up from the airport, and basically ANYTHING you can find that can confirm your story of how you arrived. I can tell you that from experience, without an actual PHOTOCOPY of your passport/visa, you have about a 50% chance of success in getting a copy of your I-94. For this option, you have to be willing to invest $300+ in what may be a minimal chance of success. If, however, you are successful, and immigration does give you a copy/duplicate I-94, the rest of your case will be smooth sailing.

(2) Force immigration to cake your case without proof of your arrival in the United States. This option involves filing the complete adjustment of status (residency/green card) application with just your statement about how you arrived in the US. Under immigration case law, YOUR testimony alone should be enough to prove your lawful entry into the United States. Now I say "should be" enough because often times, immigration officers will not simply take your word for how you arrived. So, the same proof described above to try and get a copy of your I-94, is also extremely helpful in proving your story to the immigration officer who will be interviewing you for your green card. You will need a competent representative for this option because:

(A) Your application can be rejected right after filing because immigration will do a cursory review of the application and see that you are "missing" proof of your lawful entry. This may happen because when you send an application to immigration, it is first reviewed by a "clerk" who simply checks to see if you have everything in the packet/application for a successful filing. These clerks do not necessarily know or understand the intricacies of immigration law, they are just checking off boxes, and the box that says "I-94/Visa" will be checked "no." In order to bypass the headache of having a clerk send your packet BACK to you, a detailed cover letter needs to be drafted INSTRUCTING immigration that you would like your application to be processed, DESPITE the fact that you have not provided a copy of your I-94/Visa and that you plan to provide proof of your lawful entry through testimony and other evidence.

(B) By forcing immigration to take your application, you will likely get to an interview with an immigration officer who will either believe your story or not. If they do not accept your testimony and the supporting evidence of your entry into the US, they will deny your application and refer your case to an immigration judge. At that point, you obviously need an attorney or accredited representative to represent you before the judge. I CAN tell you that if you reach this stage, assuming there are no other factors barring your admission into the US (i.e. you are not a criminal/terrorist, and you do not have a communicable disease), the judge will hear your case and you will have a very good chance of success. Once before the judge, he or she can weigh your testimony and evidence, along with the fact that LOGICALLY you must have had a visa, because it is very unlikely that you swam here. Similar to the above statement I made about being ready to make a $300+ investment in trying to get a copy of your I-94, for this option, you need to be willing to make the investment in possibly getting ALL the way to immigration court before your case is granted. This can take not only a long time -- immigration courts are very busy and can take a year or more to complete cases -- but also a lot of money (attorney fees, filing fees, etc.).

(3) Consular processing with a waiver. This process involves filing the petition (the form that your immediate relative files for you), filing a waiver for overstaying your visa, filing visa forms/fees, and returning to your home country for a short time to obtain your return visa. This process allows you to have your waiver adjudicated (decided) here in the United States, before you leave the country -- which means once it is approved, you are GUARANTEED approval to return to the US. I will use Samoa as an example to make this process clearer: First, your USC spouse/child/parent will file a petition on your behalf. Notice that I have listed ONLY those three because this option is only available to those who have IMMEDIATE RELATIVES applying for them -- immigration does not consider anyone other than USC spouse/parent/child to be your immediate relative. Once that petition is approved, you will get a consular number - for Samoa that number will begin the AKL because it is the US Consulate in Auckland NZ that will process your visa. Once you have that number, you can pay the fees required apply for your visa. Once you pay those fees, you can then file your waiver. The waiver will, in the most basic terms, explain to immigration that you know you overstayed your visa when you shouldn't have, that you are sorry for overstaying, and that if you are not allowed to remain/return to the US, your relatives will suffer extreme hardship. Proving the hardship to immigration is MORE than just filling out the form and saying you are sorry -- it is MUCH more than that, and needs to be prepared by a legal professional who is FAMILIAR with these types of waivers. I cannot stress enough how CRUCIAL the waiver is. Once the waiver is approved (which can take about six months right now), you will then complete the visa paperwork and schedule an appointment at the consulate - for Samoa, again that is Auckland. Nobody ever wants to have to LEAVE the US in order to obtain a visa to return, but as I said above, if your waiver is approved, there is NO risk in leaving because USCIS has already granted/guaranteed your return.

As always, immigration law is difficult to navigate and every case is unique. This blog is meant to provide general information, and cannot address every avenue of relief that may be available. Additionally, immigration law is always changing and that can change options available to you. You should always consult with an immigration lawyer before filing for anything.

Leah L. Tuisavalalo is an immigration attorney and author of the Ta'iala Immigration blog. She is a partner at the Pasifika Immigration Law Group, LLP in Fresno, California.

Born in New Haven, Conn., she is of Samoan descent and is a graduate of the esteemed Robert Louis Stevenson Academy in Samoa. She graduated with her bachelors from the University of Hawaii in 2002, obtained her law degree from the Santa Clara University School of Law, and was admitted to the California Bar in 2009.
Leah L. Tuisavalalo • Pasifika Immigration Law Group, LLP •2125 Kern St. Suite 303 • Fresno, CA 93721
Phone: (559) 441-9400 • Email: l.tuisavalalo@gmail.com