Wilner & O'Reilly, APLC - Immigration Attorneys In California And Utah
One Practice. One Focus. One Passion: Immigration Law.

Forgive Me For I Am Married: Misrepresentation On A Visa Application And The Waiver Process

The scenario is quite common, so common that the immigration service is prepared for it and in some cases expecting it. This common scenario typically looks like this. A petition for an "unmarried son or daughter" is current and the beneficiary of the petition is scheduled for an interview at the U.S. consulate in Manila. At the time of the interview the consulate officer asks the beneficiary if he is married. The beneficiary aware that processing for married sons or daughters requires years more in delays, declares emphatically to the officer that he is still single and unmarried. The visa is issued and the new lawful permanent resident enters the United States. Problem is the beneficiary has been married for three years and even has a son. He has committed immigration fraud.

The story usually does not end with the receipt of a green card, it continues. Separated from his wife and kids for more than 5-years the "unmarried son," decides to apply for naturalization hoping that by becoming a U.S. citizen his family's reunion will be expedited and at the same time make everyone legal in the U.S.

At the citizenship interview the officer asks the applicant if he is married and whether he has kids. He answers yes but that the marriage occurred after he obtained the green card. The case is continued and the Immigration Service conducts an investigation of the marital records in the Philippines and discovers that the applicant was in fact married prior to his entry and that he has lied about it, twice. Not only is applicant not entitled to citizenship he was never entitled to his permanent residency. As a result of this discovery the Immigration Service refers his case to immigration court for removal or deportation. This man will have that reunion with his family but if he is unaware of his options it will take place in the Philippines.

Fortunately, a waiver or forgiveness for this type of misrepresentation does exist and can be obtained in Immigration Court. Referred to as the 237(a)(1)(H) waiver, an alien who seeks this type of waiver does not necessarily have to show hardship to a qualifying relative. In fact, the waiver is a balancing act of the, "aliens undesirability as a permanent resident with the social and humane considerations present."

In deciding whether to grant a 237 (a)(1)(H) waiver, an Immigration Judge must balance the adverse and favorable factors of each individual alien's case.

Adverse factors considered by the Judge include the nature of the underlying circumstances of the fraud or misrepresentation involved, the nature, severity and history of any criminal record and any other evidence of bad character and undesirability. The Immigration Judge must weigh that evidence against such favorable factors as the alien's ties to the United States, how long the alien has lived in the U.S, age of the alien when he arrived, any evidence of hardship to the individual or family if deported, history of employment, service to the community and any other evidence of the individual's good moral character.

A major adverse factor included in any Immigration Judge's balancing act is for misrepresentations that occur after the alien has entered the U.S. If after entry an alien continues to lie about his marital status on a Naturalization application or other submissions to government agencies the Immigration Court is compelled to interpret such assertions as evidence of undesirability and the will deny the waiver.

Those individual's who face this scenario and understand their options may obtain a waiver of the initial misrepresentation and not only maintain there lawful status but may become a U.S. citizen so that the family reunion will occur and in the U.S.

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