TN 2 (12-04)

RS 00204.025 Evidence Requirements for Establishing U.S. Lawful Presence

A. Introduction

This section provides information on each category of lawfully present alien, including information on the evidence required to establish an alien’s status and information on when verification of evidence before adjudication is required and when subsequent re-verification of status is required.

NOTE: These evidence requirements are for title II payment purposes and do not change the current SSN card evidence requirements or title XVI eligibility requirements for aliens.

EXCEPTION: Certain aliens who have been removed (deported) from the United States are subject to nonpayment of their title II retirement or disability benefits under the provisions of section 202(n) of the Social Security Act. These provisions specify that benefits cannot be initiated (or reinstated) to such aliens unless they are granted lawful permanent resident status (LAPR) subsequent to their removal (deportation). Establishing status under one of the lawful presence categories other than LAPR (and submitting evidence thereof) is not sufficient for payment of title II benefits should these aliens return to the United States after their removal (deportation). (See RS 02635.001 for a discussion of the section 202(n) removal provisions.)

B. Procedure - developing evidence of U.S. lawful presence

The DHS considers an alien to be lawfully present in the U.S. for title II payment purposes if:

  1. An alien is a “qualified alien” pursuant to section 431(b) of the Personal Responsibility Act (Public Law 104-193) or under the definition as expanded in subsequent legislation. There are eight categories of qualified aliens. Use the following chart to determine the documentation and verification requirements for each category. Use the following table to develop evidence of lawful presence under this category:

    Department of Homeland Security STATUS

    POMS Reference for Documentary Evidence of Status

    Initial Verification Procedure/

    Requirements

    Subsequent Re-verification Requirements

    a. Lawfully admitted for permanent residence (LAPR) in the U.S. (SI 00502.100B, SI 00502.135, and the following Note:)

    NOTE: Form I-151 (Alien Registration Receipt Card) is no longer a valid immigration document. See RS 00204.020C.l.d. for instructions when the I-151 is submitted as evidence of lawful presence.

    GN 00303.440

    Verify status with DHS before adjudication in all cases via the SAVE program per instructions in RS 00204.020C.4.

    If the person submits an I-151 (Alien Registration Receipt Card), follow instructions in RS 00204.020C.1.d. to verify immigration status.

    In general, subsequent reverification of LAPR status is not needed unless the alien has a conditional I-551 (Permanent Resident Card, formerly the I-551 Alien Registration Receipt Card) that was issued for a 2-year validity period.

    An LAPR with a conditional 2-year I-551, is subject to the limitation that he/she must apply for removal of the conditional basis for LAPR status 120 days before the second anniversary of the admittance date to the U.S. Failure to do so results in termination of the alien’s permanent residence status. A conditional I-551 is identified by an expiration date 2 years after the admittance/ adjudication date, and status must be reverified upon expiration. The “adm/adj” date shown on the card is the date that LAPR status begins.

    - An “Amerasian immigrant” as defined in Section 584 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1988 (Public Law 100-202), as amended, is by definition LAPR and thus is a qualified alien. However, Amerasians who enter the U.S. as nonimmigrants, (e.g., foreign students pursuing studies in the U.S.) are not qualified aliens.

      

    The I-551 cards issued 1989 and later expire 10 years after the issue date. If the card has expired, the person still retains LAPR status. If the card is valid for more than 2 years, SSA does not reverify status upon expiration.

    b. Granted conditional entry pursuant to section 203(a)(7) of the Immigration and Nationality Act (INA) as in effect prior to 4/1/80 (SI 00502.100B.)

    SI 00502.130B.2.

    Verify with DHS before adjudication in all cases via the online SAVE program per instructions in RS 00204.020C.4. If unable to verify status via the online SAVE response, verify status via Form G-845 secondary verification process per instructions in RS 00204.020C.6.

    Reverify continuing lawful presence 1 year after initial verification of status is received.

    c. Paroled into the U.S. under section 212(d)(5) of the INA for a period of at least 1 year (SI 00502.100B.)

    NOTE: See RS 00204.025B.3. for aliens who were paroled into the U.S. under section 212(d)(5) of the INA for less than 1 year.

    SI 00502.130B.3.

    Verify with DHS before adjudication in all cases.

    First, attempt verification of current parole status using the online SAVE query (primary verification) per instructions in RS 00204.020C.4.

    If the immigration document submitted does not indicate the length of the parole period or you are unable to verify immigration status via the online SAVE query response, verify immigration status via the G-845 process (secondary verification) per instructions in RS 00204.020C.6.

    Reverify continuing lawful presence upon expiration of the document or 1 year after initial verification of parolee status is received, whichever is earlier. (Parolees whose documents show an “indefinite” expiration date are still subject to yearly verification of continuing lawful presence because lawful status is reevaluated yearly by DHS.)

    d. A refugee admitted to the U.S. under section 207 of the INA (SI 00502.100B.)

    SI 00502.130B.4.

    Verify immigration status before adjudication in all cases.

    • First, query the online SAVE program (primary verification) per RS 00204.020C.4.

    • Second, if the online SAVE query response does not confirm alien status, follow instructions in RS 00204.020C.10.

    None

    e. Granted asylum under section 208 of the INA (SI 00502.100B.)

    SI 00502.130B.5.

    Verify immigration status before adjudication in all cases.

    • First, query SAVE online (primary verification) per instructions in RS 00204.020C.4.

    • Second, if the online SAVE query response does not confirm alien status, follow instructions in RS 00204.020C.10.

    Reverify continuing lawful presence 1 year after initial verification of asylee status is received.

    NOTE: Once asylum is granted, it remains the person’s status until he/she adjusts to LAPR status.

    f. An alien whose deportation is being withheld under section 243(h) of the INA as in effect prior to 4/1/97, or whose removal has been withheld under section 241(b)(3) of the INA (SI 00502.100B.)

    SI 00502.130B.6.

    Verify with DHS via the online SAVE query (primary verification) per instructions in RS 00204.020C.4. in all cases before adjudication.

    If you are unable to verify via the online SAVE query response (e.g., because the evidence submitted does not contain an A number), verify via the G-845 process (secondary verification) per instructions in RS 00204.020C.6.

    Reverify continuing lawful presence 1 year after initial verification of status is received.

    g. An alien who is a “Cuban/Haitian entrant” under one of the four categories in section 501(e) of the Refugee Education Assistance Act (REAA) of 1980 (SI 00502.100B and SI 00502.108).

    NOTE 1: An alien could be in more than one category of Cuban and Haitian entrant under the REAA 80.

    NOTE 2: Certain individuals from Cuba or Haiti who are covered by Section 202(b) of Public 99-603 are considered lawfully present in the United States, but they may or may not be “qualified aliens.” See RS 00204.025B.4.c. for evidence and verification requirements for these individuals.

    SI 00502.130B.7.

    NOTE: Since the alien may not know if he/she is a Cuban/Haitian Entrant under this category or that described in RS 00204.025B.4.c., develop Cuban/Haitian entrant status based on the immigration documentation submitted. If the alien does not have documentation, refer him/her to the DHS to obtain documentation of his/her status.

    Verify with Department of Homeland Security before adjudication in all cases via the online SAVE program (primary verification) per instructions in RS 00204.020C.4. If you are unable to verify via the online SAVE program, verify status using the G-845 process (secondary verification) per instructions in RS 00204.020C.6. and the Supplement to the G-845 per instructions in RS 00204.020C.8.

    Reverify continuing lawful presence at the end of the period of authorized stay, if known, or within 1 year of the date of adjudication.

    h. Qualified Alien Based on Battery or Extreme Cruelty. Under certain circumstances, an alien who has been subjected to battery or extreme cruelty, whose child or parent has been subjected to battery or extreme cruelty, can be determined to be a qualified alien based on those circumstances under Section 501 of Public Law 104-208 or Section 5571 of Public Law 105-33.SI 00502.116F.Verify with DHS if the alien submits an Employment Authorization Document (EAD) Form I-688B/I766) prior to adjudication via an online SAVE query per instruction in RS 00204.020C.4. In this case, the lawful presence is established based on the employment authorization, not necessarily on qualified alien status based on battery or extreme cruelty while in the U.S. If unable verify EAD via the SAVE program, use the fax process to the DHS Vermont Service Center in SI 00502.116F for verify qualified alien status based on battery or extreme cruelty.Reverify continuing lawful presence based on battery if an event in SI 00502.116K.1. occurs.
  2. An alien who has been inspected and admitted to the United States and who has not violated the terms of the immigration status under which he/she was admitted or to which he/she has changed after admission.

    Use the following table to develop evidence of lawful presence under this category:

    If an alien was admitted as…

    Then obtain…

    And verify status…

    a. A Non-immigrant in classes A-S; “TD” and “TN” (NAFTA professionals); and “V” (aliens covered by the Legal Immigration Family Equity Act of 2000),

    NOTE: See RS 00204.025B.2.d. for instructions regarding NAFTA professionals and RS 00204.025B.4.g. for instructions regarding aliens covered by the LIFE Act of 2000,

    Immigration Form I-94 (Immigration Form I-94 (Arrival/Departure Record), generally issued at the time of admission to the U.S., annotated with the nonimmigrant alien classification under which the alien was admitted and the date to which the stay in the U.S. has been authorized. There are different versions of the form.

    (NOTE: for lawful presence purposes, documentation of work authorization is not required for F1 or J1 aliens), and RM 10211.340 and RM 10211.345 for additional evidence for exchange visitors (J-1 and J-2),

    With DHS before adjudication in all cases via an online SAVE query per instructions in RS 00204.020C.4. If unable to verify via online SAVE query response, verify with Form G-845 per instructions in RS 00204.020C.6. If you are unable to verify the immigration status of foreign students (F-1 and M-1) and exchange visitors (J-1) via the online SAVE query response, follow the instructions in RS 00204.020C.6.d. Reverify continuing lawful presence at the time the Department of Homeland Security document expires

    b. A non-immigrant without immigration documentation, e.g. a Canadian-born American Indian or a noncitizen Indian who is a member of a Federally recognized Indian tribe—such as a Mexican-born member of the Texas Band of Kickapoo Indian,

    Evidence in accordance with:

    SSNAP RM 10211.075,

    GN 00303.420A.1.,

    GN 00303.420A.2.; and SI 00502.105.

    NOTE: Generally, for this kind of alien SAVE cannot be used to verify immigration status because the alien has not been issued any immigration documentation by DHS (or INS in the past) and therefore, there is no information in the DHS system for an alien in this lawful presence category. Non-citizen members of the Texas Band of Kickapoo Tribal should have either an enrollment card issued by the Bureau of Indian Affairs showing the bearer to be a member of the Texas Band of Kickapoo and evidence of birth in Mexico or an American Indian Card (Form I-872) showing the class code “KIP” which establishes LAPR status. See the Administrative Confidential Memorandum for more information about these documents.

    Not Required

    c. A nonimmigrant under the Visa Waiver Pilot Program under section 217 of the INA,

    Form I-94 (Arrival/Departure Record) which shows the nonimmigrant classification (“TN” or “TD”), and the period of authorized stay, which generally is in 1-year increments,

    NOTE: The name of the employer may be on the visa but does not appear on the I-94.

    With DHS before adjudication in all cases via an online SAVE query per instructions in RS 00204.020C.4. Reverify upon expiration of the document.

    d. A Canadian or Mexican professional admitted under the North American Free Trade Agreement (NAFTA),

    Form I-94 (Arrival/Departure Record) which shows the nonimmigrant classification (“TN” or “TD”), and the period of authorized stay, which generally is in 1-year increments,

    NOTE: The name of the employer may be on the visa but does not appear on the I-94.

    With Department of Homeland Security before adjudication in all cases via the online SAVE program per instructions in RS 00204.020C.4. Reverify upon expiration of the document.

    e. A border crosser holding a Border Crossing Card issued by the Department of State

      

    (DHS definition of a “border cross”: An alien resident of the United States reentering the country after an absence of less than six months in Canada or Mexico, or a non-resident alien entering the United States across the Canadian border for stays of no more than six months or across the Mexican border for stays of no more than 72 hours.)

    Effective August 13, 2004, in accordance with RM 10211.075F, holders of Mexican border crossing cards (DSP-150) admitted for more than 30 days must have a Form I-94 and may remain in the U.S. until the date indicated on the form (prior to this date, Mexican nationals who presented a Form DSP-150 were not required to obtain a Form I-94 if there stay in the U.S. was less than 72 hours),

    NOTE: If a Mexican border crosser submits a DSP-150 as evidence of U.S. lawful presence for an entire calendar month (a DSP-150 may establish lawful presence for months with 30 days or less), you must also develop the alien's physical presence in the U.S. per RS 02610.023 because the form does not indicate the date the alien entered and departed the U.S. I-586, I-444, and MICA are obsolete forms.

    With DHS before adjudication in all cases via the online SAVE program per instructions in RS 00204.020C.4. if an I-94 is submitted. If unable to verify alien status via an online SAVE query response, verify status using Form G-845 per instructions in RS 00204.020C.6.

    f. A crew member holding a landing permit,

    Department of Homeland Form I-95A (Crewman’s Landing Permit) which shows the nonimmigrant category (“D1” or “D2”) and the period of authorized stay, generally a maximum stay of 29 days, or Form 184, Alien Crewman Landing Permit and Identification,

    With DHS before adjudication in all cases via an online SAVE query per instructions in RS 00204.020C.4. If unable to verify alien status via online SAVE, verify status using Form G-845 per instructions in RS 00204.020C.6.

    g. A citizen of the Compact of Freely Associated (CFA) States, formerly the Trust Territories of the Pacific Islands,

    Evidence of citizenship in a CFA State (e.g., passport issued by the Federated States of Micronesia, the Republic of the Marshall Islands, or Palau) or Form I-94. (If the alien was issued immigration documentation, it will show an alien classification of CFA/FSM when a citizen of the Federated States of Micronesia, CFA/MIS when a citizen of the Republic of the Marshall Islands, or CFA/PAL when a citizen of Palau.) (See GN 00303.400E for information on residents of former Pacific Trust Territories, Federated States of Micronesia, the Republic of Palau and the Republic of the Marshall Islands, who are considered to be admitted in a special class of nonimmigrants.),

    With DHS prior to adjudication via an online SAVE query per instructions in RS 00204.020C.4. if an I-94 is submitted. If unable to verify the alien status via the online SAVE query response when an I-94 is submitted, verify status using Form G-845 per instructions in RS 00204.020C.6. If evidence of CFA State citizenship is submitted, verification of the document is not required.

    h. A Citizen/Resident of Canada or Bermuda,

    Evidence of citizenship in the appropriate country, and evidence of residence in Canada or Bermuda for citizens of Commonwealth countries, as appropriate. Use the table below to determine if a citizen/resident of Canada or Bermuda is lawfully present in the U.S.

    NOTE 1: Residents of Canada or Bermuda who are not citizens of Canada or Bermuda are issued immigration documentation (e.g., I-94) when admitted to the U.S. Citizens of Canada and Bermuda are admitted to the U.S. for business (B-1) or as tourists (B-2) for up to six months but are not generally issued immigration documentation.

    NOTE 2: They are issued immigration documentation

    upon request when they are admitted to the U.S. In these cases the Form I-94 is annotated with the non-immigrant visa category under which the alien was admitted (B-1 or B-2) and the date to which the stay in the U.S. has been authorized.

    With DHS prior to adjudication via an online SAVE query per instructions in RS 00204.020C.4. if an I-94 is submitted. If unable to verify the information on the I-94 via the online SAVE query response, verify the information using Form G-845 per instructions in RS 00204.020C.6. Reverify alien status 60 days prior to authorized stay ending date. If the claimant submits other than an I-94, i.e., evidence of citizenship in the appropriate country, you will not be able to verify immigration status with DHS. Reverify status when an immigration document is submitted at the end of 6 months.

    Use the following table to determine if a Citizen/Resident of Canada or Bermuda is lawfully present in the U.S.:

    Step

    Action

    1

    Ask the claimant if he/she has an immigration document issued by DHS permitting him/her to be in the U.S.

    2

    If yes, evaluate the DHS document presented as evidence of lawful status. Verify status via online SAVE query per instructions in RS 00204.020C.4. If unable to verify via online SAVE query response, verify status using Form G-845 per instructions in RS 00204.020C.6.

    3

    If no, ask the claimant how long he/she has been in the U.S. on his/her current visit?

    • If less than 6 months, ask for evidence of citizenship in an appropriate country and evidence of residence in Canada or Bermuda, as appropriate. If evidence is submitted, assume the claimant is lawfully present and advise him/her that SSA can consider him/her lawfully present for T2 payment purposes for up to 6 months from the beginning of his or her visit to the U.S. Advise him/her that he/she is required to provide evidence of lawful presence in the U.S. at the end of the 6-month stay in order to continue to receive benefits in the U.S.

    • If more than 6 months, explain that he/she is not lawfully present for T2 payment purposes and cannot receive benefits in the U.S. Advise him/her that if he/she leaves the U.S., he/she should notify SSA. If he/she returns to the U.S., he/she may request DHS to issue Form I-94 upon entry to the U.S. Refer any questions about the lawful presence of a citizen of Canada or Bermuda, making a temporary visit to the U.S., to DHS.

  3. An alien who has been paroled into the U.S. under section 212(d)(5) of the INA for less than 1 year.

    EXCEPTION: Persons paroled in order to determine whether or not they must be excluded under the INA are not lawfully present because no determination has been made as to the lawfulness of their presence, and they are allowed into the U.S. to avoid detention while awaiting proceeding.

    See RS 00204.025B.1.c. for development for a parolee into the U.S. for a period of at least 1 year under section 212(d)(5) of the INA.

    This category does NOT include:

    • An alien paroled in order to determine whether or not they must be excluded under the INA are not lawfully present (because no determination has been made as to the lawfulness of their presence, and they are allowed into the U.S. to avoid detention while awaiting proceedings);

    • An alien paroled for deferred inspection or pending exclusion proceedings under 236(a) of the INA; and

    • An alien paroled into the United States for prosecution under 8 CFR 212.5(b).

    Obtain: Form I-94 (Arrival/Departure Record) endorsed with an expiration date of less than 1 year from the date issued. The I-94 must also indicate that the alien has been paroled into the U.S. pursuant to 212(d)(5) of the INA.

    Verify Status: With DHS before adjudication in all cases via the online SAVE program per instructions in RS 00204.020C.4. If you are unable to determine the period the alien has been paroled into the U.S. (based on the expiration date on the document) or verify the immigration status via an online SAVE query response, verify the immigration status via Form G-845 per instructions in RS 00204.020C.6.

  4. Aliens in one of certain classes of aliens permitted to remain in the United States for humanitarian or other public policy reasons.

    Aliens in this group include those classes of aliens permitted to remain in the U.S. because the Attorney General has decided for humanitarian or other public policy reasons not to initiate deportation or exclusion proceedings or enforce departure. Use the following table to develop evidence of lawful presence under this category:

    If an alien was admitted as…

    Then obtain…

    And verify status…

    a. An alien currently in temporary resident status pursuant to section 210 or 245A of the INA,

    Temporary I-551 stamp on the alien’s foreign passport until issued a regular green card (I-551, Permanent Resident card). (For a description of the temporary I-551 stamp, see GN 00303.440B.1.b.)

    NOTE: The Department of Homeland Security no longer issues Form I-688 (Temporary Resident Card) to aliens in temporary resident status. There are no currently valid I-688 cards (or extension stickers) and DHS is no longer issuing this document.

    With DHS prior to adjudication in all cases via the online SAVE program per instructions in RS 00204.020C.4. If unable to verify via online SAVE, verify using Form G-845 per instructions in RS 00204.020C.6. Reverify the alien’s status with the Department of Homeland Security 1 year after initial verification.

    b. An alien currently under Temporary Protected Status (TPS) pursuant to section 244 of the INA,

    Form I-94 (Arrival/Departure Record) endorsed “Registered for Temporary Protected Status under section 302 or 303 of IMMACT 90" with a TPS stamp; OR

    EAD (Employment Authorization Document) (Form I-688B/I-766), which shows the provision of law “274a.12(A((12)” on Form I-688B or shows category “A12” on Form I-766. (See the Administrative Confidential memorandum for an exhibits of Form I-688B and Form I-766.) If the alien claims that he/she is currently under TPS, and presents an expired I-94 or EAD, accept this as evidence of immigration status. This is an exception to the general rule that the document submitted must be unexpired in order to establish U.S. lawful presence.

    NOTE: TPS is not forever. Countries go on and off the TPS list. Check to make sure the country is still on the list. See http://www.uscis.gov/tps for a list of current TPS countries.

    With DHS before adjudication in all cases via an online SAVE query per instructions in RS 00204.020C.4. If unable to verify alien status via online SAVE query response, verify status using Form G-845 per instructions in RS 00204.020B.6. Reverify continuing lawful presence 1 year after initial verification of status is received.

    c. A Cuban-Haitian entrant, as defined in section 202(b) of P.L. 99-603, as amended.

    CAUTION: Section 202(b) of Public Law 99-603 refers to “Cuban-Haitian entrants;” but aliens with this status may or may not be “Cuban and Haitian entrants” as defined in section 501(e) of the Refugee Education and Assistance Act of 1980 (REAA 80) described in RS 00204.025B.1.g.

    NOTE: See RS 00204.025B.1.g. for development of the qualified alien status of “Cuban and Haitian entrant” as defined under section 501(e) of the REAA 80.

    Obtain Form I-94 (Arrival/Departure Record), which shows no alien classification and the legend: “CH-6” or “Cuban-Haitian Entrant (Status Pending) Renewable January 15, 1981 (or July 15, 1981),” and the period of authorized stay. OR

    EAD (Employment Authorization Document) (Form I-688B/I-766), which shows the provision (Form I-688B) or the category (Form I-766) as 274a.12(c)(14). See RM 10210.810 for an exhibit of Form I-688B.),

    NOTE: Since the alien may not know if he/she is a Cuban/Haitian entrant under this category or that described in RS 00204.025B.1.g. (as a “qualified alien”), develop Cuban/Haitian entrant status based on immigration documentation submitted. If the alien does not have documentation, refer him/her to DHS.

    With DHS before adjudication in all cases using Form G-845 (secondary verification) per instructions in RS 00204.020C.6. Reverify continuing lawful presence at the end of the period of authorized stay, if known, or within 1 year.

    d. A Family Unity beneficiary pursuant to section 301 of Public Law 101-649, as amended,

    DHS Form I-797 (Notice of Action) showing approval for voluntary departure under the Family Unity Program, an “A” number and “valid from (date) to (date).” OR

    EAD (Employment Authorization Document) (Form I-688B/I-766), which shows the provision of law as “274a.12(a)(13)” on Form I-688B, or category “A13” on Form I-766. (See RM 10210.810 for an exhibit of Form I-688B); OR

    Form I-94 (Arrival/Departure Record) showing status and a period of authorized stay.

    With DHS before adjudication in all cases via the SAVE online program per instructions in RS 00204.020C.4. If unable to verify status via an online SAVE query response, verify alien status using the Form G-845 (secondary verification) per instructions in RS 00204.020C.6. Reverify continuing lawful presence at the end of the authorized stay, if known, or 1 year after initial verification of status is received.

    e. An alien currently under Deferred Enforced Departure (DED) pursuant to a decision made by the President,

    Form I-94 (Arrival/Departure Record) endorsed to reflect DED status; OR

    EAD (Employment Authorization Document) (Form I-688B/I-766), which shows the provision of law as “274a.12(a)(11)” on Form I-688B or category “A11” on Form I-766 for employment authorization based on current DED status, 274a.12(a)(11), (See the Administrative Confidential memorandum for exhibits of Forms I-688B and I-766.)

    With DHS before adjudication in all cases via an online SAVE query. If you are unable to verify status online, verify status via Form G-845 per instructions in RS 00204.020C.6. Reverify continuing lawful presence 1 year after initial verification of status is received. If the alien claims that he/she is covered under DED, but presents an expired I-94 or EAD, verify with Department of Homeland Security.

    f. An alien currently in deferred action status pursuant to Department of Homeland Security operating instructions at OI 242.1 (a)(22),

    Form I-94 (Arrival/Departure Record) showing deferred action status and period of authorized stay; OR

    EAD (Employment Authorization Document) (Form I-688B/I-766), which shows the provision of law as “274a.12(C)(14)” on Form I-688B) or the category as “C14” on Form I-766, (See the Administrative Confidential memorandum for exhibits of Forms I-688B and I-766.)

    With DHS before adjudication in all cases via an online SAVE query per instructions in RS 00204.020C.4. If unable to verify status via online SAVE query response, verify alien status using Form G-845 per instructions in RS 00204.020C.6. Reverify continuing lawful presence at the end of the authorized stay.

    g. An alien who is the spouse or child of a United States citizen whose visa petition has been approved and the alien has a pending application for adjustment of status.

    Form I-797 (Notice of Action); OR

    EAD (Employment Authorization Document) (Form I-688B/I-766), which shows the provision of law as “274a.12(C)(9)” on Form I-688B) or the category as “C9” on Form I-766. (See the Administrative Confidential memorandum for exhibits of Forms I-688B and I-766.)

    NOTE: U.S. citizens may file I-130 petitions for their noncitizen spouses and children as well as I-485 applications for adjustment of status, if the spouses and children are in the U.S. Form I-130 and I-485 contain an A Number and a Receipt Number. If these documents are submitted, consider the alien lawfully present if immigration status is verified with DHS.

    With DHS before adjudication in all cases via an online SAVE query per instructions in RS 00204.020C.4. If unable to verify status via online SAVE query response, verify alien status using Form G-845 per instructions in RS 00204.020C.6. Reverify continuing lawful presence 1 year after initial verification of status is received.

  5. Certain Applicants for asylum or withholding of removal.

    Aliens must meet one requirement from each column of the following table in order to be considered lawfully present under this category:

    INA Provision

    AND Additional Requirement

    • Applicants for asylum under section 208(a) of the INA; or

    • Applicants for withholding of removal under section 241(b)(3) of the INA; or

    • Applicants for withholding of removal under the Convention Against Torture.

    • Have been granted employment authorization; or

    • Such applicants under the age of 14 who have had an application pending for at least 180 days.

    NOTE: When the alien applies for asylum or withholding of removal he/she is given a receipt. The I-94 is not issued until a decision is made on the application.

    Obtain: EAD (Employment Authorization Document) (Form I-688B/I-766), which shows the provision (Form I-688B) as 274a.12(c)(8) or the category (Form I-766) as C08. (See RM 10210.810 for an exhibit of Form I-688B.)

    Verify status: With DHS before adjudication in all cases via an online SAVE program per instructions in RS 00204.020C.4. If unable to verify status via the online SAVE query response, verify using Form G-845 process (secondary verification) per instructions in RS 00204.020C.6. Reverify continuing lawful presence at the end of the period of authorized stay.

    NOTE: See RS 00204.025B.1.c. for lawful presence for an alien who has been granted asylum under section 208 of the INA.

C. List - examples of aliens not “lawfully” present in the U.S.

The following aliens are NOT among those aliens included in any of the lawfully present categories discussed above, unless they present acceptable documentation showing they are otherwise lawfully present in the U.S. They are aliens:

  • With pending adjustment of status applications (INA 245 and INA 249), unless the alien is the spouse or child of a U.S. citizen and has an approved immediate relative petition and a pending adjustment of status application.

  • With pending legalization applications (INA 245A), including class members in ongoing litigation.

  • With pending suspension of deportation applications under INA 244.

  • Granted a stay of deportation.

  • Who have been ordered deported or removed, or excluded and deported, but who remain in the U.S., whether or not under an order of supervision, or aliens who have absconded.

  • Who enter without inspection (EWIs), overstays, and non-immigrant status violators.

  • Paroled into the U.S. for deferred inspection or exclusion hearings under INA 236, and criminal aliens paroled into the U.S. for prosecution.

  • With any form of voluntary departure.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/0300204025
RS 00204.025 - Evidence Requirements for Establishing U.S. Lawful Presence - 10/08/2014
Batch run: 10/08/2014
Rev:10/08/2014
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