By Robert L. Reeves and Steven J. Malm
Getting a green card can take a very long time. It can require one to put his life on hold. This is especially true of an adult child of a green card holder who must remain single in order to still qualify for a petition filed by a parent. Some people give up. Others decide they want it all. They get married in what they hope is a “secret” wedding and proceed to immigrate to the U.S. as a single son or daughter. Upon arrival in the United States, they engage in activity that perpetuates the fraud. They remarry their spouse and file petitions using the new marriage date. They file for naturalization and fail to admit that they lied in order to get an immigration benefit. As the world becomes a smaller place, and records are more easily obtained, it is more common for those who committed this kind of fraud to get caught. That is when everything starts to fall apart.
Any or all of the following situations can occur. The petitions that the immigrant filed can be denied or revoked. The application for naturalization can be denied. A person who became a citizen can be placed into denaturalization proceedings and stripped of their citizenship. Most common of all is that the immigrant can be placed into removal proceedings which means that the Department of Homeland Security will try to take away their legal status and deport them from the United States.
Fortunately, a remedy exists in the form of a 237(a)(1)(H) waiver. The numbers refer to the statute under which the waiver is based. The waiver cures the fraud and re-validates lawful permanent residency back to the date of original admission to the United States. The green card is considered valid from the time it was originally received. A successful result can result in US citizenship for the immigrant and reunification with spouses and children in the United States.
To qualify for the waiver, the immigrant must have a “qualifying relative” meaning a US citizen or lawful permanent resident parent, spouse, or son or daughter. In the Ninth Circuit, a deceased United States citizen parent is still considered a qualifying relative. The waiver comes down to a balancing of positive and negative factors. The number and type of immigration violations are considered a negative factor. Any criminal history is a negative factor. Positive factors include length of time and family ties in the US, employment history, hardship to the immigrant and others. This list is, by no means, exhaustive. To determine eligibility for the waiver, one must consult a knowledgeable and experienced immigration attorney.
Representation by an experienced immigration lawyer is essential to successfully weaving through the labyrinth of the waiver for a misrepresentation. The written request for relief must be thoroughly documented with admissible and persuasive evidence. Presentation of credible, relevant and truthful testimony from the immigrant and witnesses is mandatory if the waiver is going to be granted. How the evidence is presented is as important as what evidence is presented. For that reason, one should always ensure that the attorney they choose has a proven history of success in these types of cases. The ability to remain in the United States with one’s family can depend on it.