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An
adult beneficiary of a petition filed by a United States citizen or
lawful permanent resident parent has to wait many years for his
petition to become current. However, it is difficult to place a life on
hold for a decade or more. If the adult child marries, he may lose his
ability to immigrate because there is no category for married sons and
daughters of lawful permanent residents.
At
the very least, he will have added years to his wait because the
category of married sons and daughters of United States citizens is
much further backlogged than that of unmarried sons or daughters of
citizens. It is understandable that the adult child may choose to marry
and have children during the time that the priority date is pending.
Years
later, when informed that the petition is current, some find it
impossible to give up the American dream. An alien in that position
sometimes lies to the U.S. Consulate about marital status and gets a
green card as the single son or daughter of a permanent resident.
Once
in possession of a green card and residing in the U.S., the actions he
takes to reunite his family often make a bad situation
worse. Remarriage to the same spouse or misrepresenting marital status
on the Naturalization application can result in the immigrant being
placed in removal proceedings in Immigration Court.
Immigration and Nationality Act Section 237(a)(1)(H)allows an alien who lied in obtaining a green card apply for a
waiver. The waiver is available to an immigrant who is the spouse,
parent, son or daughter of a citizen or a legal permanent resident of
the United States . In the majority of cases, the spouse and children
of the alien who committed the fraud are natives and citizens of the
home country, rendering them ineligible to act as qualifying
relatives. The only qualifying relative may be the parent who
originally petitioned the immigrant. However, many years may have
passed between the time that the green card is granted and the time
that the alien is placed into court proceedings. By that time, the
qualifying relative parent may have passed away. The question that
arises at that point is whether the alien is still eligible for that
waiver.
In Federiso v. Holder, a case decided on May 19, 2010, the 9thCircuit Court of Appeals held that “an individual whose mother is a
United States citizen continues to be the son ... of a citizen of the
United States as set forth at [INA Section 237(a)(1)(H)] after his
mother’s death.”
The Federiso Court
addressed the continued existence of a family relationship with a
United States citizen parent. It held that the family relationship and
the U.S. citizenship continued beyond the death of the parent. The
plain language of this statute and others support this
finding. However, the court did not discuss the continued existence of
a relationship with a lawful permanent resident parent. When that issue
comes before the court, one factor will have to be whether lawful
permanent residence status continues beyond the death of the parent.
Eligibility
for the waiver requires more than the existence of a qualifying
relative. Once the relationship is proven, the court must engage in a
balancing test to determine whether the positive factors in the case
outweigh the negative ones. Those factors will be discussed in depth in
a separate article.
Non-citizen sons and daughters of LPRs applying for the waiver will need to show why the Federisoholding should be extended to them. Non-citizen sons and daughters of
both USCs and LPRs will need to show why the court should favorable
exercise discretion in weighing the positive and negative
factors. Because so much is at stake, aliens in this situation should
seek the advise and assistance of an immigration attorney who is
experienced in this type of case.
*****
Author's Note: The
analysis and suggestions offered in this column do not create a
lawyer-client relationship and are not a substitute for the individual
legal research and personalized representation that is essential to
every case.
Robert L. Reeves is a licensed California attorney and is certified by the California State Bar as an Immigration and Nationality Law Specialist. He has
been specializing in immigration law for over 30 years and is admitted
to practice before the US Supreme Court, the US Court of Appeals for
the Ninth Circuit, several US District Courts and California State
Courts. He is the Managing Partner of Reeves & Associates with
offices located in Pasadena, San Francisco, Las Vegas and Makati City – Unit
507 Tower One Ayala Triangle, also known as the Philippine Stock
Exchange Plaza Makati , 6767 Ayala Avenue, Makati City, Philippines
1226 (corner Paseo de Roxas, beside Ninoy Aquino Monument). Philippine Contact Numbers: 759-6777 or Toll Free: 1-800-10-773-3837E-mail: immigration@rreeves.com Website: www.rreeves.com
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