When you no longer have your passport or proof of your lawful entry into the U.S.

Continuing the theme of my last post, here is more detail on what happens if you lost all evidence of your lawful entry into the U.S. - i.e. your passport or you I-94.  As I stated before, under Immigration and Naturalization Act sec. 245(a), if you entered the country with permission (e.g. visa or border crossing card) your family members may be able to petition for you to become a lawful permanent resident - i.e. green card holder.  If you are still "in status", meaning you haven't yet overstayed your visa, your resident spouse or parent or your citizen spouse, parent, or over 21 child, can petition for you. The important distinction here is that your resident spouse or parent can only petition for you if you haven't overstayed yet.  If you have overstayed, then the petitioner needs to be a US Citizen.  This second situation is the one I am addressing in this post (because if you were still in status, you hopefully still have proof of your entry into the U.S.).  

Alright, so lets say you entered the U.S with a tourist visa some years ago and just never left.  Lets also say that you no longer have the passport you entered on with the stamp showing you were "inspected and admitted" upon your entry into the country.  In the past, this was a serious problem because you had to have physical/tangible/documentary proof of your entry.  Recent case law, however, has changed that and now, as long as you were inspected and admitted and you can prove it - either by testimony, witness, etc. - you can apply for your green card.  Now, if you don't have your passport or visa any more, proving your entry can be an issue and you need to understand that you may very well end up in immigration court, proving your case to a judge.  In my experience immigration officers at local USCIS offices  (United States Citizenship and Immigration Services - used to be called INS) always want a piece of paper showing you came in to the U.S. legally, even though the law does not require that.  So what could happen is that you present your case and your application to an officer, they deny you, and refer your case to Immigration Court.  While this may seem intimidating, the judge and the government attorney understand the law much better than an officer and if your case is strong (and you have competent representation), your case is winnable.  

Lets talk a little about what constitutes proof.  First you need to know the EXACT date you arrived and where you entered.  A vague recollection of the year is not going to do it.  Initially, you can try applying for a duplicate I-94.  That application requires fees (approx. $300) and you have to be able prove your entry, for e.g. (1) a detailed declaration from you regarding when you left your country, when you entered the U.S., how you entered - down to the airline you traveled on, who you traveled with, and the reason why you no longer have your passport or I-94, and hopefully (2) an affidavit from someone you traveled with who can corroborate your statement.  For Polynesians, our communities are fairly small, so there is a very good chance that there is someone you traveled with, or maybe someone who picked you up from the airport, who can vouch for you.  Obviously, this person is going to want to either be a resident or a citizen, because they will be providing a written statement to immigration. This application has about a 50/50 chance of success because you are basically asking immigration to take your word, and the word of any witnesses you may have, that you entered the country lawfully.  If the application is successful, however, and you are issued a new I-94, that pretty much guarantees you a green card, assuming the other elements of your eligibility have been determined.  So this is about weighing the odds of being granted a duplicate I-94 against the $300-ish filing fee.

Assuming you don't want to spend the extra filing fees for a 50/50 chance of getting a duplicate I-94 (because the rest of the applications are going to set you back over $1000), you will need the same type of proof that I mention above for your green card application and your interview.   Also, for those who traveled across the border by car/foot and were simply "waived in" at the border, you wouldn't have had an I-94 in the first place, so you can't apply for a new one, but that "waiving in" is also considered to be "inspected and admitted," so you can still apply and prove your entry with the same evidence I described above.  This case is obviously harder to prove, since you aren't coming from a country where you had to fly here and go through customs, but it has been done.  Again, statements from the person who drove you across perhaps, or someone you traveled with, would be helpful.  I cannot stress enough how helpful a statement from someone else to corroborate your story would be, however, if you really cannot think of anyone who can attest to your  lawful entry, you could consider taking and submitting to a lie detector test and submitting the results.  There are a few cases where this has worked, however, it is still a relatively new method/idea.

As always, all that I have described above is extremely complicated and you will most definitely need an attorney to analyze your case and help you navigate the process.  But at least with this basic information, you can decide whether or not you feel like you may have a case.