I recently wrote an article about the “H waiver” and how it can be used to help married Filipinos who immigrated to the United States claiming they were single. However, that article only addressed the problem from the standpoint of Lawful Permanent Residents. Since the article was published, many people have come to my office who made the same misrepresentation, but did not get caught during naturalization. As a result, they are now naturalized citizens of the United States who obtained their lawful permanent residence by misrepresenting their marital status at the time they entered the United States. They now want to petition their spouse and children but are afraid of what might happen if their misrepresentation is discovered.
Once a person becomes naturalized, they are no longer an “alien” but a citizen of the United States. Since the INS can only deport aliens, a naturalized citizen cannot be deported. However, the INS can commence proceedings to revoke a naturalized citizen’s naturalization certificate and, once the naturalization certificate is revoked, the individual becomes an alien again and subject to deportation.
Unfortunately, misrepresenting one’s marital status in order to gain entry to the United States is considered “concealment of a material fact” and can therefore be used to revoke an individual’s naturalization certificate. Accordingly, even though naturalized citizens who misrepresented their marital status are not deportable, per se, they are not “safe” either. Revocation proceedings can still be commenced against them. Moreover, since the H waiver is only available to aliens, it is not available to naturalized citizens in Revocation Proceedings.
However, all is not lost. Once the INS has revoked an individual’s naturalization certificate, INS must still commence deportation proceedings if their goal is to expel the individual from the United States. The H waiver is available at this stage and, once it is obtained, the denaturalized alien will probably be immediately eligible to ‘re-naturalize’– this time without being haunted by the spectre of their misrepresentation.
Of course, it is not at all certain that the INS will go to all the trouble of denaturalizing, then trying to deport, a naturalized U.S. citizen who is clearly eligible for the H waiver. However, as we are all well aware, logic and reason don’t always apply to the INS. Accordingly, if you misrepresented your marital status in order to immigrate to the U.S. and you are either already naturalized or thinking of becoming naturalized, you should consult with a qualified immigration professional to determine what course of action would be the most appropriate for you and your family.