false claim to U.S.citizenship more often than not results in a permanent bar to living in the United States. What about if the misrepresentation was
something other than U.S.citizenship? Is it still possible to live and work legally in the U.S.? The answer is maybe.
misrepresenting a material fact in order to obtain an immigration benefit makes
one either inadmissible or deportable or both. Willful means that the misrepresentation is deliberate and
material fact is one that would make the alien inadmissible or shut off a line
of inquiry which may have resulted in not being admitted. If you lie about your name and/or birth date
because you were previously denied a visa under the correct information, you
have cut off an inquiry that might have resulted in your visa being
denied. If you lie about your marital
status (say you are single in order to get your green card or say you are
married in order to get a visitor’s visa), you have lied to hide the fact that
you are not eligible for a green card or shut off an area of inquiry that might
have resulted in your visa application being denied.
who are seeking to enter the United
States or are seeking to obtain their green
cards have the burden of proving that they are not inadmissible. Under the Act, any alien who, by fraud or willfully
misrepresenting a material fact, seeks to procure (or has sought to procure or
has procured) a visa, other documentation, or admission into the United Statesor other benefit provided under this Act is inadmissible. However, it is possible to obtain a waiver
for the misrepresentation.
order to qualify to file for the waiver, the alien must be the spouse or son or
daughter of a United Statescitizen or a lawful permanent resident. Being the parent of a United
States citizen or a green card holder will
not give you the relationship you need for the waiver.
you have proven that you have the necessary relationship, you must further show
that the qualifying relative would suffer extreme hardship if the waiver were
is not enough to state that the family members would miss the alien. That is assumed. Various factors are considered in the aggregate
to reach the determination that extreme hardship exists. They are: the age of the alien, both at the
time of entry and at the time of the application for relief, family ties in the
United States and abroad, length of residence in this country, the health of
the alien and qualifying family members, the political and economic conditions
in the country of return, the possibility of other means of adjusting status in
the United States, the alien's involvement and position in his or her community
here, and his or her immigration history.
evidence must be submitted to support the hardship factors. This waiver is usually applied for at the
time of applying for adjustment of status. If it is denied and the alien is placed into proceedings, the alien can
reapply for the waiver in court. (These
waivers can also be sought at the time of consular processing but that topic is
for another article).
section of law applies to those aliens who already obtained admission into the United States. That section states that any alien who at the
time of entry or adjustment of status was within one or more of the classes of
aliens inadmissible by the law existing at such time is deportable. Since misrepresenting a material fact at the
time of entry is a ground of inadmissibility, the government can try to make
you leave even after they have let you in. In order to do that, they issue a Notice to Appear in Immigration Court. Once in those
proceedings, the alien can apply for a waiver.
waiver for this type of misrepresentation is available to aliens who are the
spouse, parent, son or daughter of a citizen of the United States or of an alien
lawfully admitted for permanent residence. The alien must show that the
positive factors in his case outweigh the negative ones. Among the negative factors are the “nature
and underlying circumstances of the fraud or misrepresentation involved; the
nature and seriousness, and recency of any criminal record; and any additional
evidence of the alien’s bad character or undesirability as a lawful permanent
resident of the United
factors to be considered may include “family ties in the United States;
residence of a long duration in this country, particularly where it commenced
when the alien was young; evidence of hardship to the alien or her family if
deportation occurs; a stable employment history; the existence of property or
business ties; evidence of value and service to the community; and other
evidence of the alien’s good character”.
of the positive factors must be carefully presented to the court through
documentation and testimony. In
addition, the negative factors must be thoroughly dealt with and explained.
granted a waiver can mean the difference between living in the United Statesand going home. Because so much is at
stake, aliens in this situation should seek the advice 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 Californiaattorney 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: 1-800-10-773-3837 E-mail: firstname.lastname@example.org