Published July 25, 2016
Like those entering the U.S. without a visa (sneaking across the border), those coming to the U.S. under an assumed identity, are usually driven by a desperation to find work opportunities in the U.S., to leave a home country with dreadful economic or living conditions, or to simply be reunited with U.S. family members – come what may. The process is usually initiated by the foreign national buying a real passport, reflecting citizenship in his native country, or in some other nearby nation. The passport will contain a different person’s name, and from there a U.S. visa in the name of the assumed identity is affixed. Usually, the picture on the passport is that of the impersonator. Other variations on this theme involve a foreign national entering on someone else’s U.S. passport or permanent resident card.
Now, if this individual is a refugee who is fleeing some form of persecution in his home country, then he can apply for asylum, and his fraudulent entry will NOT present a legal obstacle toward his eventually obtaining permanent resident, or “green card” status. But for non-asylum based applicants, the process is much trickier and challenging.
The challenges for someone who enters under an assumed name or false identity and seeks to apply for a green card based on a family relationship, such as a marriage to a U.S. citizen, are significant and complex. Except for those making a false claim to U.S. citizenship (such as by attempting entry with someone else’s U.S. passport), indeed an avenue to excuse the fraud or misrepresentation exists. However, the scrutiny applied to such filings is quite high, and the legal standard is not in the least bit easy to satisfy.
For the green card applicant who entered the U.S. by way of fraud or misrepresentation, an I-601 Application for Waiver of Misrepresentation/Fraud will be required. The applicant will typically be requested to file an I-601 application after a basic adjustment of status application has already been filed. Quite often this request will take place at the applicant’s adjustment of status interview, where the interviewing officer will have confirmed all the facts surrounding the misrepresentation by administering a formal “Q & A” and seeking the applicant’s sworn statement.
To approve an I-601 application to “waive” or excuse the applicant’s act of fraud or misrepresentation, the Department of Homeland Security/Citizenship and Immigration Services officer will have to be convinced that the denial of the application will pose “extreme hardship” for the applicant’s U.S. citizen or lawful permanent resident spouse or parent (hardship to the applicant’s U.S. child is NOT relevant in this equation). In general, the more fragile the qualifying U.S. relative’s physical or mental health, the more likely the applicant is to be granted. Other relevant factors include: a) the extent to which significant family ties in the applicant’s home country remain, b) living/health conditions or personal safety in the home country and c) the financial and/or emotional impact the applicant’s forced departure would have on qualifying U.S. family members.
If the application is denied, avenues for appeal indeed exist, whether before DHS’ Administrative Appeals Office, or before an Immigration Judge if the applicant is placed in removal proceedings.
Needless to say, a foreign national who enters the U.S. under a false identity and is seeking to have his transgression excused/waived, is advised to have a well thought out strategy before the fact. In the end, there does exists a second option, and that is to NOT apply for a waiver and instead wait for Congress to implement immigration reform measures that provide an avenue to legalization, thereby making the above stressful process unnecessary. One of the big questions then is whether the patience of the prospective applicant has been exhausted, and he/she simply cannot wait any longer at a chance at finally legalizing their stay and getting their green card.
PUBLISHED July 25, 2016– “IMMIGRATION LAW FORUM” Copyright © 2016, By Law Offices of Richard Hanus, Chicago, Illinois