Filipinos who misrepresented their marital status by claiming to be single when, in fact, they were married prior to immigrating to the United States may obtain a waiver of the fraud without fear of being deported and may then immigrate their spouses and children from abroad or, if in the United States, they may file for their green card.
The reason most Filipinos misrepresented their marital status to embassy officials when they immigrated is simple enough– they were originally single when either their U.S. permanent resident parent or U.S. naturalized parent filed an immigrant visa petition for them. However, they subsequently got married prior to immigrating to the United States.
I understand how easy it is to get caught up in an unfair visa system that makes children of permanent residents or United States citizens wait up to ten years or more before they can immigrate to the United States. Meanwhile, these petitioned Filipino children become young adults, fall in love with their hometown sweethearts, get married and have children themselves.
Certainly it is easy enough to get snared in this kind of trap. If the visa applicant reveals the marriage to embassy officials, then they cannot immigrate and reunite with family and other loved ones already in the United States. If the applicant lies and says he or she is not married and has no children, he or she will usually be issued an immigrant visa, but will find out later that there is no way to subsequently immigrate his or her spouse and children.
I have seen many Filipinos who have found themselves caught up in this nightmare with no apparent way to resolve the problem of immigrating their family. Filipinos have tried various kinds of “quick fix” or other misguided remedies, all of which only make the problem worse. For example, after the immigrating Filipino arrives in the United States and obtains a green card, he or she returns to the Philippines, remarries the spouse, and then comes back to the United States with the second marriage certificate and files an immigrant visa petition for the spouse. After waiting for the quota to become current, the spouse left abroad is interviewed by the U.S. Embassy .
Sometimes the scheme works if the couple has no children or if they have concealed the fact that they have children. Under these circumstances I have found Filipinos to be between 30 % and 40 % successful, however, the children remain stranded in the Philippines. Even if the children are subsequently smuggled into United States they remain “TNT”.
Another misinformed remedy is to obtain forged birth certificates for the children showing that they were born out of wedlock and to remove the first marriage certificate from the local civil registry. This scheme works less than 1 % of the cases and presenting such documents is a red flag to the embassy officials.
The embassy will carefully investigate the birth and marriage records on file at the National Statistics Office in Manila and even send an investigator to the province to questions neighbors, local parish priests and others. Once the true facts are discovered by the embassy, the visa will be denied and the visa petition will be returned to the Immigration Service for revocation.
Some Filipinos try to find a solution in the naturalization process. However, this too is a dead end. If the naturalization applicant claims that the children were born out of wedlock and their birth date predates the applicant’s immigration to United States, the INS will conduct an overseas investigation. The investigation takes about one year and inevitably uncovers the first marriage certificate on file at NSO as well as the true birth certificate. The INS will build a good case against the applicant which will now include a charge of perjury and possibly forged documents.
A few years ago Filipino families were successful in becoming naturalized despite the misrepresentations made when they immigrated to the United States by simply telling the truth in the naturalization application and at the naturalization interview. However, the INS usually made the applicants wait for several years as punishment, but after constant pushing by the applicant’s attorney, INS would finally naturalize the applicant by applying the spirit of the § 241 (H) waiver under the Immigration and Nationally Act. This section provides that if the applicant has a parent, spouse, or son and daughter that are permanent residents or United States citizens or if the fraud occurred more than ten years ago, the fraudulent entry may be waived.
However, around 1992 INS stopped granting these kinds of waivers. As a result, these waiver cases were all held in limbo, leaving the Filipino no way to legalize his family in the United States and no way to bring his family to the United States if they were still in the Philippines.
Now the INS demands that the naturalization applicant withdraw his naturalization application and then informs the applicant that he will be placed in deportation proceeding. Deportation is, incidently, a step in the right direction because if INS commences the deportation proceeding, the applicant can then file for a § 241 (H) waiver. However, this should only be done with the help of a competent, experienced and aggressive attorney.
I have always refused to withdraw my clients naturalization applications and have forced the Immigration Service to place my clients in deportation proceedings where I have, in all cases, obtained the § 241 (H) waiver. After obtaining the waiver I immediately demand that the applicant be naturalized without further delay. This process is not an easy one; it takes about two years to complete and to immigrate family members from abroad or legalize those already in the United States. Even though these cases are difficult, none of my clients have ever been denied a §241 (H) waiver.
Recently, in the case Del Mundo v. INS (1994), and the more recent case of Yang v. INS (1995), the United States Court of Appeals for the 9th Circuit has held that the represented made in obtaining driver’s licenses, social security cards, and voter’s cards were an extension of the initial fraud and, more importantly, that misrepresentations made at the most recent naturalization interview are also an extension of the original fraud and cannot be considered an adverse factor in considering whether to grant a § 241 (H) waiver.
Accordingly, even if naturalization applicants made misrepresentation relates to his or her original misrepresentations may be waived. What has to be established in all cases is good moral character except for the misrepresentation made to the U.S. Consul and INS during the naturalization process. There is no reason to have your spouse or your children remain stranded abroad or “TNT” any longer. There is a way out of this nightmare.