March 16, 2011
It seems that most everyone knows how difficult it is to deal with the United States Embassy, especially the one in Manila. As a result, many individuals resort to committing fraud and/or providing incorrect information on visa applications so that their chance of coming to the United States is not stopped. From the Philippines, a common scenario involves those who are petitioned by a family member as being a single unmarried individual, but in fact are truly married.
Realizing that the occurrence of fraud and misrepresentation continues to grow, the immigration laws have been periodically amended since 1986 to impose more stringent penalties against individuals who commit fraud or misrepresentation when entering the United States. At the same time, the waivers available to overcome such fraud or misrepresentations have been progressively narrowed so as to make it increasingly more difficult to obtain such a waiver.
As indicated, a rather common situation in the Philippines are individuals entering the United States claiming to be single when in fact they are already married. Many times the consequences usually do not surface until it is time to apply for naturalization and/or time to petition in the spouse and/or children.
Individuals in this situation may be able to find resolution through a 237(a)(1)(H) waiver. To be eligible for a 237 waiver, an individual must have a qualifying relative, namely a parent, spouse or child who is a US citizen or lawful permanent resident. On May 19, 2010, the 9th Circuit Court of Appeals issued a court decision indicating that a person fulfills this requirement for a 237 waiver even if the qualifying relative is already deceased.
In considering a 237 waiver, “the alien’s undesirability as a permanent resident with the social and humane considerations present” is weighed against one another. Favorable factors to be considered are such things as family ties in the United States, length of residence in the US, evidence of hardship to the alien or his family if removal occurs, a stable employment history, the existence of property or business ties, evidence of value and service to the community, and other evidence of the individual’s good character. Adverse factors include such things as the type of fraud committed, criminal history, and welfare history.
As well, continued fraud by the individual is a significant negative factor that would likely prevent an individual from being granted a 237 waiver. For example, if an individual continues to state that he is single on his naturalization application, this misrepresentation will not be waived under the 237 waiver. Similarly, some individuals attempt to perpetuate the fraud by re-marrying their spouse and proceeding with a relative petition only indicating the second marriage. This type of continued fraud would again likely prevent the grant of a 237 waiver. Accordingly, individuals should never continue to commit fraud as they would then likely never be able to favorably resolve their situation.
For those granted a 237 waiver, it allows them to keep their permanent resident status. Additionally, the permanent residency status remains valid from the time they initially obtained it, so they do not lose any time toward their eligibility to become a US citizen.
Resorting to fraud and misrepresentation is certainly not the solution to problems. Despite this long known conclusion, individuals continue to commit fraud and misrepresentations believing that it is the only way to come to and/or stay in the United States. At some point in time, the truth will have to be told. When that time comes, it is important that competent legal advice be sought as the waivers are complex and burdensome to substantiate.