by Elizabeth R. Blandon
Generally, persons who have committed crimes or who have committed fraud in order to obtain an immigration benefit are not allowed to enter the United States. If they are in the country, those persons are not allowed to become legal permanent residents. To rectify such harsh consequences, foreigners may apply for waivers with the Citizenship and Immigration Service (“the Service”).
Before proceeding with the arduous task of preparing a waiver, however, an immigration professional determines whether one is even needed. For example, a classic fraud case involves a person who now wishes to apply for residency but who entered the U.S. during childhood with a fake passport. Unlike misrepresentation of a material fact, fraud requires that the foreigner intended to deceive. Legally, children do not have the intent to deceive and cannot commit fraud. In addition, misrepresentation cannot be imputed. Because the Immigration officer relied on the false statements of the parent as to the child’s citizenship at the entry, the child cannot be punished for keeping quiet. So, no waiver is required.
Likewise, a foreigner who drives with a fake driver’s license arguably is not committing fraud for immigration purposes because driving is not an immigration benefit. There are other penalties for such actions but prohibition from residency should not be one of them.
If a waiver is required, the foreigner must prove that her removal from the U.S. will cause extreme hardship to a parent or spouse who is either an American citizen or a legal permanent resident. Extreme hardship to U.S. children can also be considered. Importantly, because the Service will review all the facts that demonstrate hardship (economic, medical, psychological, etc.) the foreigner should provide as much detail as possible of all the ways that her deportation would affect those around her.
I ask clients to write their own It’s A Wonderful Life script by imagining what the world would be like without them. From that first draft, I have the raw material to request the needed evidence, draw out more information, apply the immigration laws to the client’s particular case, and keep the client – and her family – informed on the process.
Waivers for Fraud. Anyone can say that her family will suffer hardship, but the documents prove it. This is where psychotherapist’s reports, employer letters, transcripts from schools, and other documents can carry the case to a victory.
Waivers for Crimes. Evidence of rehabilitation is a must when the foreigner committed crimes. The Service will want to see community participation, such as involvement with children’s sports, houses of worship and volunteer activities. As with fraud, some crimes do not require a waiver though. Petty offenses, first offenses, and offenses committed over 15 years before applying for residency may not require a waiver.
Filing a waiver, or deciding the correct strategy for an appeal in the event a waiver previously filed has been denied, is a complicated matter that should be discussed with immigration professionals. The information provided here is not legal advice. Call the office to schedule a consultation.