Adjustment of Status Granted Without Waiver Despite Alleged Fraud

Summary

While it is absolutely possible to obtain a waiver of your prior fraud from U.S. Citizenship and Immigration Services, the reality is that it is a long and stressful process. We are therefore especially proud of a recent case in which we were able to successfully argue that our client’s application for adjustment of status should be approved without even submitting a waiver.

Our client recently applied for adjustment of status (“AOS” or green card) after she had entered the U.S with a tourist visa from the Philippines. However, her adjustment of status was going to be potentially complicated because she had lied about her marital status on her tourist visa application. She stated that she was married when in fact she was single. She did so because she believed that claiming to be married would make it more likely for her application to be approved since she would have allegedly had a husband to return to in the Philippines after her visit to the U.S.

When we were completing her application for adjustment of status, and during her interview as well, we disclosed that she had lied on her visa application. The AOS interviewing officer also had access to a copy of her visitor visa application. At the end of her interview, the officer stated that a waiver for fraud/willful misrepresentation would be required before her AOS application could be approved. The officer stated that the waiver would be required due to our client lying about her marital status on her visa application.

After the interview, we received a Notice of Intent to Deny the application, in which U.S. Citizenship and Immigration Services (“USCIS”) formally expressed its intention to deny the application for fraud/willful misrepresentation. If denied, the application would have to be refiled with a waiver, which only USCIS had discretion to approve. Here, the waiver would have to be based on whether USCIS determined our client’s U.S. citizen husband would suffer “extreme hardship” if her waiver were not approved.

The Notice of Intent to Deny claimed that our client procured an immigration benefit by fraud or by concealing or misrepresenting a material fact during her visitor visa interview. It stated that the outcome of her visitor visa application could have been different if her true marital status had been disclosed, and that any submission of an application containing false or misleading statements could have caused a permanent refusal of a visa or a denial of entry to the U.S. Finally, USCIS claimed that our client tried to obtain an immigration benefit by failing to disclose a material fact willfully, knowingly, and unlawfully with the intent to deceive by means of a false statement and misrepresentation.

We timely responded to the Notice of Intent to Deny, countering its allegations. In the response, we argued that our client’s marital status was not a material (important) fact, and as such, a waiver should not be required. We also argued that knowledge of the true circumstance of her marital status would not have led to the denial of her visitor visa. A few weeks later, having changed its course, USCIS approved our client’s AOS application.

Our client was understandably thrilled with the result! Now she has her sights on becoming a U.S. citizen as soon as she is eligible.

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