A. Purpose

USCIS may recognize certain classes of foreign nationals who entered the United States during specific time periods as having been lawfully admitted for permanent residence even though a record of their admission cannot be found. Such foreign nationals who have not abandoned status or been ordered excluded, deported, or removed may be eligible for a creation of record of their lawful permanent residence. This process is called “presumption of lawful admission” and is essentially a verification of status, rather than an adjustment of status.

B. Background

As U.S. immigration laws were codified, certain groups of foreign nationals were unable to prove their entry, admission, or immigration status in the United States based on records or other evidence. Various provisions grandfathered these foreign nationals into existing law by allowing for the recording of their lawful admission for permanent residence.

C. Legal Authority

8 CFR 101.1 – Presumption of lawful admission

8 CFR 264.2 – Application for creation of record of permanent residence

D. Eligibility Requirements

A foreign national is presumed to be a lawful permanent resident of the United States if he or she can show presence in the United States under any of the standards in 8 CFR 101.1. There are more than 30 situations when a foreign national is entitled to presumption of lawful admission for permanent residence. Some merely require that the applicant establish that he or she entered the United States before a certain date. Others require a particular nationality, entry at a particular location, entry by a certain manner, or other requirements. An officer should review the regulation to ensure an applicant is in fact eligible to register his or her lawful permanent residence.

Eligibility to register permanent resident status based on a presumption of lawful admission requires a foreign national to establish that he or she has not abandoned his or her residence in the United States. One of the tests for retention of permanent resident status is continuous residence in the United States. [1] Continuous residence is distinct from continuous physical presence. Although continuous residence and continuous physical presence are related, they have different meanings. Continuous residence refers to maintaining a permanent dwelling place in the United States during the period of time required. In contrast, continuous physical presence refers to the number of days a foreign national must physically be present in the United States during the period of time required. See Volume 12, Citizenship & Naturalization, Part D, General Naturalization Requirements, Chapter 3, Continuous Residence [12 USCIS-PM D.3] and Chapter 4, Physical Presence [12 USCIS-PM D.4]. The applicant must also be physically present in the United States at the time he or she files the application. [2] See 8 CFR 264.2(a).

All presumption of lawful admission cases require an admission to the United States in 1957 or earlier. It is the applicants’ responsibility to establish their admission through documentation, testimony, or affidavits. [3] See 8 CFR 103.2(b)(1). However, an officer should consider the passage of time since the events in question and the difficulties inherent in documenting events that may have occurred decades ago.

The following table provides a list of eligible classes for presumption of lawful admission and whether evidence of admission is required.

Presumption of Lawful Admission

Eligible Class

Regulation

Evidence of Admission Required?

Entered prior to June 30, 1906.

8 CFR 101.1(a)

No

Citizen of Canada who entered the United States across the Canadian border prior to October 1, 1906.

8 CFR 101.1(b)

No

Citizen of Mexico who entered the United States across the Mexican border prior to July 1, 1908.

8 CFR 101.1(b)

No

Citizen of Mexico who entered the United States at the port of Presidio, TX, prior to October 21, 1918.

8 CFR 101.1(b)

No

Foreign national who establishes he or she gained admission to the United States prior to July 1, 1924 based on a pre-examination at a U.S. immigration station in Canada.

8 CFR 101.1(b)

No

Foreign national who entered the U.S. Virgin Islands prior to July 1, 1938 even if there is a record of admission as a nonimmigrant.

8 CFR 101.1(c)

Yes

Foreign national indigenous to and native of a country within the Asiatic zone [4] The Asiatic zone was defined in the Act of February 5, 1917 and covered much of the Middle East and Asia, including countries such as India, China, and the Philippines. See Section 3 of Pub. L. 64-301, 39 Stat. 874, 876. who is:

Exempted from exclusion; and

Entered the United States prior to July 1, 1924.

8 CFR 101.1(d)

Yes

Certain Chinese nationals with record of admission prior to July 1, 1924 under laws and regulations formerly applicable to Chinese nationals.

8 CFR 101.1(e)(1)

Yes

Certain Chinese or Japanese nationals who were admitted or readmitted on or after July 1, 1924, including certain nationals admitted under specific provisions of the Nationality Act of 1940.

[Note: Most admissions under this provision took place between July 1, 1924 and December 23, 1952.]

8 CFR 101.1(e)(2)

Yes

Philippine citizen who entered the United States prior to May 1, 1934. [5] Registrants under this section are not regarded as permanent residents for naturalization unless they were a citizen of the Commonwealth of the Philippines on July 2, 1946.

8 CFR 101.1(f)(1)

Yes

Philippine citizen who entered Hawaii between May 1, 1934 and July 3, 1946 (inclusive) under the provisions of the last sentence of Section 8(a)(1) of the Act of March 24, 1934. [6] See Pub. L. 73-127, 48 Stat. 456, 462.

8 CFR 101.1(f)(2)

Yes

Certain foreign nationals who, when admitted, expressed an intention to remain temporarily or pass in transit through the United States, but who remained in the United States, including certain foreign nationals admitted prior to June 3, 1921 or admitted pursuant to the Act of May 19, 1921. [7] See Pub. L. 67-5.

8 CFR 101.1(g)

Yes

Citizens of the Trust Territory of the Pacific Islands who entered Guam prior to December 24, 1952 and were residing in Guam on December 24, 1952.

8 CFR 101.1(h)

Yes

Foreign national admitted to Guam prior to December 24, 1952, as established by records, who was:

Not excludable under the Act of February 5, 1917; [8] See Pub. L. 64-301.

Continued to reside in Guam until December 24, 1952; and

Not admitted or readmitted into Guam as a nonimmigrant. [9] See Matter of C-Y-L-, 8 I&N Dec. 371 (BIA 1959) (foreign nationals not classifiable as contract laborers under the Immigration Act of 1917 are eligible for presumption of lawful permanent residence). See Matter of L-, 9 I&N Dec. 82 (BIA 1960) and Matter of A-, 9 I&N Dec. 85 (BIA 1960) (admission prior to December 24, 1952 as a contract laborer cannot be cured by an admission subsequent to that date as a higher level of employee). See Matter of Antolin, 12 I&N Dec. 127 (BIA 1967) (8-year residence outside Guam after 1952 nullified eligibility for presumption of lawful permanent residence).

8 CFR 101.1(i)

Yes

Certain foreign nationals who were erroneously admitted as a U.S. citizen or as a child of a U.S. citizen prior to September 11, 1957 who maintained a residence in the United States since date of admission. [10] See Matter of M-Y-C-, 8 I&N Dec. 313 (BIA 1959) (foreign national who was not in fact the child of a U.S. citizen at the time of his or her admission does not qualify). See Matter of K-B-W-, 9 I&N Dec. 610 (BIA 1962) (alleged adoptive child of a U.S. citizen who is not within the definition at INA 101(b)(1)(E) does not qualify). See Matter of Cruz-Gastelum, 12 I&N Dec. 704 (BIA 1968) (foreign national does not qualify in the absence of a record of claimed admission).

8 CFR 101.1(j)(1)

Yes

Certain foreign nationals erroneously admitted to the United States prior to July 1, 1948 in possession of a Section 4(a) 1924 Act [11] See Pub. L. 68-139, 43 Stat. 153, 155 (May 26, 1924). nonquota immigration visa.

8 CFR 101.1(j)(2)

Yes

E. Documentation and Evidence

A foreign national should submit the following to establish eligibility for presumption of lawful admission for permanent residence:

Application to Register Permanent Residence or Adjust Status (Form I-485), with the correct fee;

Two passport-style photographs;

Biographic Information (Form G-325A), if the applicant is 14 through 79 years of age;

Copy of government-issued identity document with photograph;

Copy of birth certificate;

Evidence of the applicant’s examination, entry, or admission to the United States (if applicable);

A list of all the applicant’s arrivals into and departures from the United States;

Evidence substantiating the applicant’s claim to presumption of lawful admission for permanent residence, including proof of maintenance of residence, where required, or any other requirements as specified by regulation;

A statement by the applicant indicating his or her basis for a claim to presumption of lawful admission for permanent residence; and

Any other requirements or evidence as specified by regulation.

F. Adjudication

This process does not involve a grant of adjustment of status, but rather, recognition of an applicant’s status. A decision on presumption of admission does not involve any consideration of admissibility or discretion. If an applicant meets the eligibility requirements provided in the regulation, [12] See 8 CFR 101.1. See 8 CFR 264.2. an officer must approve the application.

If an applicant is unable to establish the criteria necessary for presumption of lawful admission, an officer should determine whether the applicant has submitted sufficient evidence to establish eligibility for registry, and if so, adjudicate the application as a request to register lawful permanent residence under INA 249. [13] See Chapter 4, Foreign Nationals Who Entered the United States Prior to January 1, 1972 [7 USCIS-PM O.4].

If approved, USCIS assigns the following code of admission:

Classes of Applicants & Corresponding Codes of Admission

Applicant

Code of Admission

Presumption of Lawful Admission

XB3

The effective date of permanent residence is not the date the application is approved, but rather the date the applicant arrived in the United States under the conditions that created the presumption of lawful admission for permanent residence. [14] See 8 CFR 264.2(h)(1).

Footnotes


1. [^]

Continuous residence is distinct from continuous physical presence. Although continuous residence and continuous physical presence are related, they have different meanings. Continuous residence refers to maintaining a permanent dwelling place in the United States during the period of time required. In contrast, continuous physical presence refers to the number of days a foreign national must physically be present in the United States during the period of time required. See Volume 12, Citizenship & Naturalization, Part D, General Naturalization Requirements, Chapter 3, Continuous Residence [12 USCIS-PM D.3] and Chapter 4, Physical Presence [12 USCIS-PM D.4].

4. [^]

The Asiatic zone was defined in the Act of February 5, 1917 and covered much of the Middle East and Asia, including countries such as India, China, and the Philippines. See Section 3 of Pub. L. 64-301, 39 Stat. 874, 876.

5. [^]

Registrants under this section are not regarded as permanent residents for naturalization unless they were a citizen of the Commonwealth of the Philippines on July 2, 1946.

6. [^]

See Pub. L. 73-127, 48 Stat. 456, 462.

7. [^]

See Pub. L. 67-5.

8. [^]

See Pub. L. 64-301.

9. [^]

See Matter of C-Y-L-, 8 I&N Dec. 371 (BIA 1959) (foreign nationals not classifiable as contract laborers under the Immigration Act of 1917 are eligible for presumption of lawful permanent residence). See Matter of L-, 9 I&N Dec. 82 (BIA 1960) and Matter of A-, 9 I&N Dec. 85 (BIA 1960) (admission prior to December 24, 1952 as a contract laborer cannot be cured by an admission subsequent to that date as a higher level of employee). See Matter of Antolin, 12 I&N Dec. 127 (BIA 1967) (8-year residence outside Guam after 1952 nullified eligibility for presumption of lawful permanent residence).

10. [^]

See Matter of M-Y-C-, 8 I&N Dec. 313 (BIA 1959) (foreign national who was not in fact the child of a U.S. citizen at the time of his or her admission does not qualify). See Matter of K-B-W-, 9 I&N Dec. 610 (BIA 1962) (alleged adoptive child of a U.S. citizen who is not within the definition at INA 101(b)(1)(E) does not qualify). See Matter of Cruz-Gastelum, 12 I&N Dec. 704 (BIA 1968) (foreign national does not qualify in the absence of a record of claimed admission).

11. [^]

See Pub. L. 68-139, 43 Stat. 153, 155 (May 26, 1924).

12. [^]

See 8 CFR 101.1. See 8 CFR 264.2.

13. [^]

See Chapter 4, Foreign Nationals Who Entered the United States Prior to January 1, 1972 [7 USCIS-PM O.4].