By Attorneys Devin M. Connolly and Nancy E. Miller
An applicant for permanent resident status has the burden of proving that he is eligible to receive that precious green card. Actions that one has committed in the past, either in order to enter the United States, or unrelated to entry, can result in being inadmissible under the Immigration & Nationality Act. If the applicant is found to be inadmissible for any reason, he will only be issued a green card if he is granted a waiver of inadmissibility. Common grounds of inadmissibility include making a material misrepresentation in order to obtain an immigration benefit and prior criminal convictions. This article will focus on the relief available to one whose prior misrepresentation has resulted in being inadmissible to the United States.
The ground of inadmissibility that results from misrepresenting a material fact lasts a lifetime. It does not expire just because a certain amount of time has passed. The only way to get a green card after making that misrepresentation is to obtain a waiver of the ground of inadmissibility. If the waiver is granted, the prior actions are forgiven and the alien is permitted to lawfully reside in the U.S. A potential immigrant must be eligible for the waiver as a matter of fact and law. She must also prove that she is deserving of the waiver as a matter of discretion.
In order to be statutorily eligible for a waiver of a prior misrepresentation, the applicant must have a qualifying relative. The only possible qualifying relatives for this type of waiver are the applicant’s U.S. citizen or permanent resident parents or spouse. An applicant’s U.S. citizen or permanent resident child is not a qualifying relative for purposes of this waiver.
If the immigrant does have a qualifying relative, the evidence submitted in the application must satisfy the officer that the qualifying relative will suffer extreme hardship if the immigrant is not permitted to reside in the United States. The evidence must address whether the qualifying relative will remain in the United States without the immigrant or whether the spouse or parent will accompany the alien to the home country.
In determining whether the alien has met the “extreme hardship” standard, the adjudicator will consider the totality of the circumstances. Among the factors taken into consideration are the immigrant’s family in the United States and in the home country, the qualifying relative’s physical health and ties to both the United States and the alien’s home country, as well as the economic, medical and political conditions in the home country. The adjudicating officer assumes that the family members love each other and will miss each other. The officer also assumes that there will be some level of hardship. The question is whether that level of hardship is so extreme that it reaches beyond that which is normally experienced as a result of a denial of the waiver.
Only if the answer to that question is “yes” does the officer move on to look at whether the alien is entitled to a waiver in the exercise of discretion. In that regard, exactly what type of misrepresentation(s) the alien made and why, the length of the alien’s time in the U.S., other violations of immigration law, criminal history (which could include arrests that did not result in a conviction) as well as positive contributions that the alien has made to society are considered.
The submission of a thorough and persuasive application is vital since the applicant has the burden of proving eligibility for the requested waiver of inadmissibility. Unsupported claims of hardship carry no weight. Effective presentation of past “bad” acts and rehabilitation is an art as well as a skill. Even a case with good, strong facts can be denied if it is not presented properly. It takes an expert to determine what type of evidence will be most effective in supporting each assertion.
With so much riding on the outcome of the application for the waiver, an applicant should make sure she retains the services of an experienced and knowledgeable immigration attorney to help her. Being represented by an experienced immigration lawyer with a proven track record in successfully representing clients with inadmissibility problems maximizes the applicant’s chances of being granted the waiver. The right attorney may make the difference between obtaining a green card and being deported. It is therefore one of the most significant decisions that a person will make in his lifetime.