By: Robert L. Reeves and Nancy E. Miller.
A 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.
Willfully 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 voluntary.
A 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.
Non-citizens 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 States or other benefit provided under this Act is inadmissible. However, it is possible to obtain a waiver for the misrepresentation.
In order to qualify to file for the waiver, the alien must be the spouse or son or daughter of a United States citizen 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.
Once 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 denied. It 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.
Objective 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 os for another article).
Another 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.
The 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 States”.
Positive 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”.
Evidence 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. Being granted a waiver can mean the difference between living in the United States and 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.