By: Robert L. Reeves and Nancy E. Miller

In a previous article we talked about how a false claim to U.S. citizenship often 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 would have resulted in not being admitted. If one lies about their name and/or birth date because of a previous visa denial, this lie would have prevented an inquiry that might have resulted in a visa denial. If the lie is about their marital status (claiming single in order to get a green card or claiming married in order to get a visitor’s visa), the lie to hide non eligibility for a green card shuts off an area of inquiry that would have resulted in the 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 Immigration and Nationality Act (“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 the 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 provide the relationship needed for the waiver.

Once one has proven the necessary relationship, it 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 or at the immigrant visa interview if abroad. If the waiver is denied and the alien is in the U.S., he or she will be placed in deportation proceedings and the alien can then apply for a waiver.

Another section of law applies to those aliens who already obtained their immigrant visa. 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 deport one even after being admitted to the U.S. In order to do that, USCIS will 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 advise and assistance of an immigration attorney who is experienced in this type of case.