By: Nancy E. Miller of Reeves Miller Zhang & Diza
Is it still possible to live and work legally in the U.S. after lying to get here? The answer is maybe. Waivers (forgiveness) for the misrepresentation are possible but they are not easy to get.
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. Common examples are using a false name because you were previously denied a visa or misrepresenting your marital status in order to hide the fact that you are not eligible for a green card (claiming to be single when you are actually the married son or daughter of a green card holder).
All hope is not lost for those who have told untruths to get what they want. It is possible to obtain a waiver for the misrepresentation.
In order to qualify for a waiver that will allow the alien to get a green card, she must have a spouse or parent who is a United States citizen or a lawful permanent resident. Having a United States citizen or a green card holding child 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. Various factors are considered to reach the determination that extreme hardship exists. They include: 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 obtaining lawful status in the United States, the alien’s involvement and position in his or her community, and his or her immigration history. The alien must also show remorse and that s/he is entitled to a favorable exercise of discretion. Having good facts are your side is not enough. Effective presentation of the case is essential to a successful result.
Another section of law applies to those aliens who already obtained lawful status in 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 (even those matters that did not result in a conviction); 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 having to leave. Because so much is at stake, aliens in this situation should seek the advice and representation of an immigration attorney who is knowledgeable and experienced in waiver cases.