In one of my recent articles I discussed a waiver available under the Immigration and Nationality Act that applies to individuals who made misrepresentations to an immigration officer either here or abroad in order to avoid the long quota wait for married children of Permanent Residents or Naturalized U.S. Citizens.
For the Philippine community, the misrepresentation often involves the individual’s marital status. Married children of United States citizens wishing to immigrate from the Philippines have to wait many years, but unmarried children over 21 years old can emigrate in only a few years. Because of this, married children will sometimes tell an immigration or consular officer that they are unmarried in order to be granted entry to the United States. Problems arise, however, when those children try to become naturalized or file visa petitions for their spouse and children in the Philippines. In the process of adjudicating the naturalization application or visa petition, the INS invariably uncovers the misrepresentations. Many Filipinos are therefore afraid to file naturalization applications or visa petitions fearing that they will be discovered and deported.
The “H Waiver” provides the solution to this problems since it waives not only the misrepresentation but also the underlying ineligibility that the individual sought to conceal by misrepresenting his or her marital status. In other words, if the H waiver is granted, the individual remains a Lawful Permanent Resident and no longer has anything to fear from the INS and is fully qualified to be naturalized.
After my article was published, several common questions arose regarding eligibility for the H waiver and the waiver application process. The purpose of this article is to answer some of the more common questions asked by my clients during consultations.
The most common questions asked are regarding the timing of the marriage. Since my earlier article spoke specifically about Filipinos who were single when the visa petition was filed and then subsequently got married, many individuals apparently assumed that they would not be eligible for the waiver if they were married at the time the visa petition was filed on their behalf. This is not the case. The waiver is available to any individual who made a misrepresentation in order to avoid the restrictions of the quota system. There is nothing in the language of the statute, or in the cases which have interpreted the statute, which suggests that the timing of the marriage is in any way relevant to an individual’s eligibility.
Another frequently asked question is how an alien applies for the H waiver. As I mentioned in my previous article, until 1992 an alien would apply for the waiver at the same time he or she filed their naturalization application. However, even though this procedure is still technically available, the INS has stopped adjudicating these waiver applications and is instead putting all waiver applicants in deportation proceedings. If this does not happen you will have to ask the INS to put you in deportation proceedings before you can ask for the waiver. However, before you ask the INS to commence deportation proceedings against you, your entire case should be carefully evaluated by a qualified immigration attorney to insure that this particular strategy is the correct one for you.
Another question often asked is how soon after entry can this waiver be requested. Technically, you can apply for an H waiver as soon as you arrive in the U.S., before the ink even dries on your entry stamp. However, it is important to remember that the H waiver is a discretionary waiver and therefore requires a showing of good moral character during your stay in the United States. If you apply for the H waiver after living in the United States for 5 years, showing that you have been working during that period of time and have no criminal convictions will probably be sufficient to establish good moral character. However, it will be much more difficult to establish good moral character if you have only been here for 5 weeks. In addition, a waiver application being made so close on the heels of the underlying misrepresentation will create the appearance that you had the waiver application in mind at the time you made the initial misrepresentation. This is not likely to sit very well with the immigration judge.
One of the most intriguing questions asked by my clients is whether naturalized United States citizens can be denaturalized if the misrepresentation is discovered. In other words, if the INS did not uncover the misrepresentation during naturalization proceedings, is the naturalized citizen now “safe” or can the misrepresentation still be used against them. Unfortunately the Supreme Court decided many years ago that misrepresentations made to obtain an immigrant visa, or to gain entry into the U.S. do constitute grounds for denaturalization. Moreover, the H waiver is not available in denaturalization proceedings. However, once a naturalized citizen becomes denaturalized, the INS would still have to commence deportation proceedings and the waiver is available in deportation proceedings. Once the waiver has been obtained, the alien would be eligible to reapply for naturalization and the misrepresentation could no longer be used against him or her.
