Ineligibilities and waivers in US immigration – Part II

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Michael Phulwani is a prominent attorney admitted to practice law in New York, New Jersey and India. He practices immigration and nationality laws and visa matters in the USA and abroad. He is a frequent lecturer on immigration laws and co-hosts several TV and radio programs on immigration. In this column, Phulwani will discuss frequent problems relating to immigration legislation and answer questions from our readers. All questions should be forwarded to Michael Phulwani, 888 Maywood Avenue, Maywood, NJ 07607.

By Michael Phulwani
This is the second part of a series of articles on grounds for inadmissibility under the Immigration & Nationality Act and the waivers available to overcome these grounds. There are several reasons that an alien may be found inadmissible but waivers are not available to aliens in all categories. In our last article (which was published two weeks ago), we discussed three  grounds of inadmissibility. In this article, we will discuss the most common ground of inadmissibility under which Indian nationals are denied immigrant visas.

4. Illegal entrants & immigration violators

Aliens in the US without admission or parole – Anyone who comes to the US without permission of the US Citizenship & Immigration Services or Department of State is inadmissible.

Exception: Battered spouses and  children.

Waivers: There is no waiver, but aliens in the US may adjust under section 245(i) i.e. on whose behalf a visa petition or application for labor certification was filed on or before January 14, 1998 or on or after January 15, 1998, and on or before April 30, 2001 and the alien was physically present in the US on December 21, 2000.

Failure to attend removal proceedings without a good reason makes a person inadmissible for five years.

Fraud or misrepresentation — Anyone who engages in fraud or misrepresentation in an effort to enter the US is permanently inadmissible under section 212(a)(6)(c) of the Immigration & Nationality Act (includes some false claims to US citizenship).

The following are some of the examples of acts which constitute fraud or misrepresentation:

1. Individual is married and gets a paper divorce from his wife in order to get married to a US citizen or permanent resident and apply for immigration benefits. In such cases, the divorce is not real and the individuals continue marital relationship with the divorced spouse. In most of such cases, even the marriage with the USC or green card holder is only for the purpose of obtaining immigration benefits.

2. Green card holder parent files Immigrant Visa Petition for unmarried son or daughter. Due to long delays in visa numbers becoming available, the son or daughter gets married and the visa petition under the unmarried son or daughter category is automatically invalidated. However the beneficiary continues the process of obtaining an immigrant visa under unmarried status. At the time of interview, consul finds out that the beneficiary is married and visa is denied and fraud and misrepresentation charges imposed.

3. US citizen gets married in India but to speed up the process files K-1 fiancé(e) petition on behalf of his/her spouse. Consul finds the truth, the visa is denied and the beneficiary is charged with fraud and misrepresentation.
Note: In view of the recent introduction of K-3 visa for spouses and children of US citizens and speedy process of I-130 petitions under Immediate Relative (IR) category, the delays in obtaining visas under IR categories have been eliminated.

4. US citizen filed petition for sibling, which includes his/her spouse and derivative children. The derivative child reaches 21 years during the waiting period. Parents obtained false birth certificate of the child to show age under 21 years. Consul comes to know the truth, visa is denied to the child based upon fraud and the parents are also denied visa under smuggling charges under section 212(e) for which there is no waiver under fourth preference category.

5. US citizen files F4 petition for sibling, which includes the spouse and children under 21. The beneficiary sibling includes a child not of his/her own in the visa application. Consul finds the truth, visa is denied to that child as well as the parents who are charged with smuggling. No waiver possible.

6. A visa applicant under employment category submits fraudulent documents about education or experience. Consul finds out, visa is denied and fraud charge imposed.

7. A US citizen or permanent resident is engaged to an individual and plans to get married after sometime. To speed up the process, marriage certificate is obtained without actually getting married and the visa petition is filed based upon such marriage certificate. Consul finds out, visa is denied and fraud charge may be imposed.

8.  An H-1B or L-1 alien attempts to obtain a visa for an individual as his/her spouse on the basis of a marriage certificate obtained without getting married. Consul finds out, visa is denied and fraud charge imposed.

Waiver: A waiver may be granted in the case of an alien, who fraudulently procured a visa if the alien is the spouse or child of a US citizen or a Legal Permanent Resident and the Attorney General is satisfied that the refusal of the alien’s admission to the United States would result in extreme hardship to the US citizen or LR spouse or parent of such alien. There is no longer a waiver for the parents of a US citizen or LPR, and there is, likewise, no longer a waiver for misrepresentation which occurred ten or more years ago.

Smuggling – Any alien who at any time knowingly, has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible

Waiver is available for immigrant visa applicants and adjustment of status applicants immigrating as immediate relatives (spouse, parent, child of a USC), or under family-based category. Alien must have assisted only spouse, parent, son, or daughter to enter the US in violation of law. Family relationship must have existed when the smuggling offense occurred. Aliens immigrating under F4 category as siblings of US citizens are not eligible to apply for the waiver. Aliens immigrating under any employment-based category are also not eligible to apply.

Student visa abusers: Aliens, who violate the terms of a student visa, are also inadmissible for five years.

To be continued…

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