Image Source: i601waiverattorney.com
Image Source: i601waiverattorney.com

Sometimes, in the spirit of family unity, immigration rules become flexible.  We might be surprised to know that despite the guilt of what we had done in the past that should justify our removal from this country, we could still cling on to the “last straw” and maintain residence in the US.

 Yes, we hear a lot about people claiming to be single despite having been married. They made such claim so as not to be disqualified to come to the United States because the visa application filed by a parent is for an “unmarried child over 21 years old.”  Or despite police clearances required to be submitted in order to prove that no crime was committed in the past, somehow, an offense (major, at that) is kept out of the radar and out of the reach of US embassy officials, and so the applicant’s criminal record does not show anything.  Or we claim to be chaste but we were actually married twice.

These are actually grounds which make a visa applicant inadmissible to enter the United States.  For some reason, these escape notice and are not discovered at the initial stage.  The visa applicant passes the test and is able to come to the US and granted a green card.

Such misrepresentation or non-disclosure actually constitutes fraud which becomes a reason for the US government to deport the alien upon discovery of the lie, despite the fact of a green card having already been issued.

This action is rightly so because one should not have qualified for the green card in the first place. If one is to be strict about it, they should be doubly penalized for lying through the teeth and causing the US government to expend its resources for someone who does not deserve to be here in the first place.

The misrepresentation would soon be discovered in later applications such as a citizenship application or a petition for visa by a relative (child or spouse).  A National Statistics Office (NSO) record of birth or marriage does not lie as to dates. How can one reconcile NSO facts to what was earlier stated in the US immigration forms?

It is interesting to know, however, that there is a concept of “fraud waiver” in US immigration law.  Under Section 237 (A)(1)(H) of the Immigration and Nationality Act, when the green card holder who is discovered to have committed fraud is placed in removal proceedings, he/she can apply for the “fraud waiver” as a relief from removal. He/she is entitled to the relief if he/she can show that he/she has a qualifying family member (such as a spouse, parent, son or daughter) who is a U.S. citizen or lawful permanent resident (LPR) and that except for such ground that would have made her inadmissible, she was otherwise admissible (with a few exceptions) and such was the direct result of the fraud or misrepresentation.

 It sounds complicated because it is.  It is important to consult an immigration attorney before any action can be taken about such case.  The fraud waiver, provided for under Section 237 (A)(1)(H), is discretionary upon the immigration judge, and other more factors are considered before a favorable decision is made to allow one to stay in this country.

If the judge thinks you are deserving to stay in this country despite the fraud you have committed, then you would be allowed to retain your green card. Otherwise, you are asked to leave the country.

Most of the time, it becomes a difficult personal decision whether to reveal the truth or not or just maintain the status quo and whether one Is willing to take the risk of a long tedious, messy, expensive and miserable battle before the immigration judge to prove that a mistake was made and is worth forgiving. Or you could just be quiet about it and maintain what you have (at least, a green card), stay for a while, and just retire to a country that you can always call home.

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Maria Rita Reyes-Stuby
Maria Rita Reyes-Stuby is a licensed attorney in Michigan. She is a graduate of the University of the Philippines College of Law. She specializes in immigration and practices in Las Vegas, Michigan, California and other states.

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