Richard received an urgent call from his sister in the US. His son, John, who was studying in the US, was involved in an accident and was hospitalized. Unfortunately, Richard did not have a visitor visa at that time. He immediately approached a relative who helped him get a passport and obtain a US visa. Richard appeared before the consular officer using a fraudulent passport. The name he used was not in his real name. A visitor’s visa was issued and Richard used this visa to enter the US. His passport and his visa reflect the name of a certain “Albert”.
When Richard entered the US, he was issued an I-94 and was authorized to stay in the US for six months. Since his assumed name is “Albert”, he began to use this identity since his arrival in the US. John suffered from serious injuries as a result of the accident but survived all his afflictions with his father on his side. After a few years, John married a US citizen and had become a US citizen himself. He is now gainfully employed and filed a petition for his father. Instead of receiving an approval, this petition was denied by the immigration service. Richard is now facing deportation before an immigration judge.
Richard never felt resentment for using a fraudulent identity to enter until he was served with a Notice to Appear for deportation/removal.
Assumed Identity
The act of entering the US with an assumed identity is definitely classified as “fraud”. The fraudulent acts commence from the time Richard appeared before the consular officer to obtain a US visa and continued on until he carried over his assumed identity at his work place. His co-employees knew Richard as “Albert” since he never used his real name.
When his son petitioned for Richard, his counsel informed him that he has to reveal his real name. Among the many requirements to support the petition is the birth certificate of his son. To be able to show the filiations, the birth certificate of John must contain his father’s name. Presented with this predicament, Richard has no other option but to reveal his real identity and submit his legitimate passport and birth certificate.
In all his applications for the green card, Richard disclosed his use of an “assumed identity” upon entry in the US. His relatives informed him that to be truthful would assist him in getting his green card. He heard that a “waiver application” would condone his fraudulent entry into the US.
Waiver Applications
In most cases where an individual committed acts of fraud or misrepresented material facts in entering the US, the immigration law allows this individual to file for a waiver application as an incident to an immigrant petition. Upon filing of this waiver, the immigration examiner will determine whether the fraudulent acts committed may be disregarded and the individual may receive his green card.
The decision to grant or deny the waiver application is very discretionary on the part of the immigration officer. This is granted if the applicant for green card can establish “extreme hardship” to the US citizen or lawful permanent resident parent or spouse. The two most important factors to consider are the (1) presence of qualifying relatives and (2) extreme hardship. The present law, does not allow a parent of a US citizen to seek the waiver. The only qualifying relatives for the waiver are spouse or parents. Children are not considered qualifying relatives.
In the case of Richard, he is facing a dilemma. His son is not a qualifying relative for determining extreme hardship. He does not meet the first requirement and is therefore not eligible for the waiver.
Extreme Hardship
The waiver application arises not just in removal proceedings but also in applications for US visas. The burden is on the applicant to establish his eligibility for the waiver. With hardships resulting from the US housing and economic crisis becoming a widespread occurrence to most families, determining what “extreme” hardship is for the waiver becomes a challenging task for the waiver applicant
Each waiver case is to be decided on its own merits. Only when extreme hardship is proven will the waiver be approved. And only when the waiver is approved, will an individual in deportation proceedings be granted relief and be declared a green card holder.
Although, the original intent of Richard who used the assumed name was to fulfill his moral obligation to his ailing son, the continuing use of the fraudulent identity did not work in his favor.
With the difficulty of obtaining waivers, desisting from engaging in fraud is key. Without the grant of a waiver, no fraudulent act may be justified and excused at the same time.
(Tancinco may be reached at law@tancinco.com or at 887 7177)
