Permanent Resident Status Despite A Prior Misrepresentation

By Attorneys Devin M. Connolly & Nancy E. Miller

CAJ0057AA person born outside of the United States will only be granted permanent resident status (“green card”) if they are able to show that they are admissible to the U.S. If the applicant is found to be inadmissible for any reason, they will only be issued a green card if they are granted a waiver of their inadmissibility.  One ground of inadmissibility results from telling a lie in order to obtain an immigration benefit.  Using an assumed name or misrepresenting marital status generally results in a finding of inadmissibility.

Committing a material misrepresentation triggers a lifetime bar from the U.S. Fortunately an alien who has previously committed a material misrepresentation may be eligible for a waiver of their prior conduct.  And if their requested waiver is granted, their prior actions are forgiven and they are permitted to lawfully reside in the U.S. as a permanent resident.  An applicant will only be issued a waiver of their inadmissibility if they are able to demonstrate they are eligible for the waiver as a matter of fact and law, and that they deserve a waiver as a matter of discretion.

In order to be statutorily eligible for a waiver of a prior misrepresentation, the applicant must have a requisite qualifying relative. The only possible qualifying relatives for this type of waiver are the applicant’s U.S. citizen or permanent resident spouse or parents.  An applicant’s U.S. citizen or permanent resident child is not a qualifying relative for purposes of this waiver.

If the applicant does have the required qualifying relative, they must demonstrate that their qualifying relative will suffer “extreme hardship” if they are not granted a waiver of their inadmissibility. As stated above, any potential hardship experienced by the applicant’s child is not directly applicable.

In determining whether the alien has met the “extreme hardship” standard, the adjudicator will consider the following factors: (1) the presence of lawful permanent resident or United States citizen family ties to the United States; (2) the qualifying relative’s family ties outside the United States; (3) the country conditions in the country of relocation and the qualifying relative’s ties to that country; (4) the financial impact of departure from the United States; and (5) significant health conditions, particularly when tied to the unavailability of suitable medical care in the country of relocation. The “extreme hardship” standard is to be viewed under a totality of the circumstances approach. This standard is difficult to meet; an applicant’s waiver will not be granted solely because their qualifying relative(s) would miss them.

An applicant’s request for a waiver must include objective evidence that establishes “extreme hardship.”  It is crucial that the applicant submits a well-documented request for a waiver because this evidence must sufficiently convince the adjudicating officer or Immigration Judge that the applicant’s qualifying relative will indeed suffer “extreme hardship” if the waiver is not granted.  The adjudicating officer will not assume anything.  Every claim of hardship must be supported.

The submission of thorough and persuasive evidence is vital since the applicant has the burden of proving that that she is eligible for the waiver, that the qualifying relative would suffer extreme hardship and that she is deserving of the requested waiver of inadmissibility in the exercise of discretion. Preparation of the waiver is both an art and a science.  For that reason, an experienced immigration attorney is essential because, in addition to knowing the required elements, a knowledgeable attorney will also be able to present the evidence in a manner that emphasizes the hardship on a qualifying relative, highlights the alien’s rehabilitation and good moral character, and couches the negative information (which must be discussed) in a way that will cause the least harm.

Obtaining a waiver of inadmissibility for prior conduct is not easy.  But it is still very possible to obtain if the request is properly prepared.  It is always advisable for applicants to retain the services of an experienced and knowledgeable attorney who is dedicated solely to the practice of immigration law.  Having an experienced immigration attorney on one’s side will maximize the applicant’s chances of being granted a waiver.  Hiring the right attorney may be the difference between obtaining a green card and being deported.  It is therefore one of the most significant decisions that a person will make.