By: Attorney Amanda C. Kwong and Nancy E. Miller
Are those bells ringing? With wedding season approaching, many are keeping in mind the traditional rhyme detailing what someone should wear at his or her wedding for good luck:
Something old,
something new,
something borrowed,
something blue,
and a silver sixpence in her shoe.
With the major backlogs in the American immigration system, life goes on regardless of immigration status. And many noncitizens have decided to get married after finding true love. What happens when “something borrowed” is someone else’s name when the noncitizen entered into the United States? In some cases, individuals utilized assumed names in order to obtain nonimmigrant visas to come to US. On rarer occasion, individuals used assumed names and consular processed to enter into the US as permanent residents. Regardless of when, where, or why the noncitizen used the assumed name, if found to have been used in connection with obtaining an immigration benefit, the assumed name is considered to be fraud or material misrepresentation. Fraud is a more grave version of material misrepresentation, but both are categorized as grounds of inadmissibility, thus potentially precluding the granting of a green card and rendering that person a candidate to be removed from the US.
Cases involving fraud or misrepresentation are serious but waivers are available for those who are applying for a green card and for those who already obtained their green card without disclosing the fraud. We will discuss the latter situation in this article. The noncitizen is typically placed in removal proceedings in front of an immigration judge (“IJ”). The IJ then has the power or jurisdiction over what happens to the case and whether the noncitizen will be ordered removed to her native country. There may be reasons why noncitizens do not or cannot return to their native countries despite genuine regrets for their unlawful actions. Some reasons include financial obligations, family members who are dependent on them, and medical problems requiring treatment that cannot be easily accessed in the home country.
What can be done about this dire situation, especially in a political climate that has perpetuated fear among immigrant communities? With the help of “something old,” which is the existence of laws in place to ensure fairness, noncitizens are protected by certain types of available relief in the immigration court system. While it is intimidating for noncitizens to come forward to try to fix their prior indiscretions, the IJ has the authority and may be willing to grant a discretionary waiver for the fraud or misrepresentation to a noncitizen.
To be eligible for this form of relief, the noncitizen must have a qualifying relative and have been in possession of an immigrant visa or otherwise admissible to the US at the time of admission. To clarify, a qualifying relative is US citizen or lawful permanent resident spouse, parent, son, or daughter. The second requirement means that the noncitizen cannot have had any other inadmissibility aside from the single instance of fraud or misrepresentation (or anything that was a direct result of that fraud) when she was admitted as a permanent resident.
Aside from meeting the elements required by law, the waiver applicant must show to the IJ that she is deserving of a favorable exercise of discretion. The IJ will weigh the positive factors against the fraud or misrepresentation and any other negative factors. The IJ will consider all aspects of the noncitizen’s life, such as presence of family members in the US, the presence or lack thereof of family members in the home country, duration of stay in the US, length of employment, property ownership and business ties, existence any medical problems, the applicant’s good moral character, the value and contributions to the community, and any other life circumstance that is specific to the applicant. Negative factors are things that show that the applicant is not deserving of relief, such as whether there is a criminal record. If there is a criminal record, the IJ will consider the severity of the crime committed, how long ago it was, and whether there was any rehabilitation. Other negative factors are the failure to file and pay any Federal income taxes, and the failure to support dependents.
As such, please hold onto “something new,” which is optimism for the future. Because of the changes that each detail can make whether this relief is available, please discuss the particulars of your case with an immigration attorney. If granted, the waiver reaffirms the green card from the date of its original issuance, which means that the noncitizen may be eligible to immediately apply for naturalization. Upon taking the naturalization oath, the newly sworn-in citizen can obtain a US passport, which is “something blue.”
