By Attorneys Robert L. Reeves & Nancy E. Miller
Desperation makes people do strange things. An adult beneficiary of a petition filed by a permanent resident parent has to wait for many years for his petition to become current. If an alien marries before getting a green card, the petition becomes invalid the alien loses the chance to come to the U.S. Yet, it is hard to put a life on “hold” for ten or more years. Many people facing this situation marry and have children while waiting. Years later, when informed that the petition is now current, some find it impossible to give up the dream of coming to America. An alien in that position sometimes lies to the U.S. Consulate about their marital status and the existence or legitimacy of any children and obtains a green card as the single son or daughter of a permanent resident.
Once in possession of a green card, the alien usually seeks to reunite his family. However, the petition for the family left behind only makes the bad situation worse. Some aliens go home and re-marry their spouse, come back and file a petition on the spouse’s behalf. Some wait for five years, apply to become a U.S. citizen and then file the family petition. More often than not, the result of these actions is that the alien finds himself in immigration court. The government tries to take back the green card and deport the alien.
All is not lost. There is still hope. Immigration and Nationality Act Section 237(a)(1)(H) allows an alien who lied to obtain a green card to apply for a waiver. The waiver 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. In order to receive the waiver, the alien must show the positive factors in his case outweigh the negative ones. In re Tijam, a Board of Immigration Appeals case, gives the judges a detailed guide of negative and positive factors to consider in deciding whether to exercise discretion and grant the waiver. 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”.
Under INS v. Yang, the immigration judge may consider as negative factors all the lies told in order to get and keep a green card – including the initial lies told to gain entry into the United States. That means that the judge can consider as a separate fraud the remarriage after the alien obtained the green card and the petition based on the second marriage. The judge can also consider any lies told on naturalization application as distinct and separate frauds. Each of these lies will count as a separate negative factor.
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. 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.