Is A Waiver Available If There Is A Finding Of Marriage Fraud?

The Immigration and Nationality Act Sec. 204 (c) prohibits the approval of a subsequent petition if the alien committed marriage fraud in a prior petition. It also prohibits the approval of the first petition if the Attorney General determined that the marriage is a sham.

The good news is that if the alien already obtained an immigrant visa or already adjusted status and then he or she is sent to removal proceedings, the marriage fraud can be waived and the original entry or adjustment of status as an immigrant can be made valid once the waiver is granted.

Question: I was charged with fraudulent marriage when I applied for an immigrant visa at the U.S. Embassy in Manila as spouse of a U.S. citizen. I was denied a visa at that time. My spouse divorced me afterwards. Later on my mother petitioned me as a single daughter to a lawful permanent resident. When the priority becomes current I applied for immigrant visa and I was approved. When I was applying for naturalization, the USCIS found out the marriage fraud in my record. I was denied my naturalization application and they sent me to removal proceedings. What is my relief from removal?

Answer: You are inadmissible as a Lawful Permanent Resident at the time you obtained your immigrant visa based on the petition of your mother because of the marriage fraud you initially committed. The good news is that you can request for a waiver of the fraud or misrepresentation you have committed. The requirements for this waiver are:

1. Must be the spouse, parent, son or daughter of a U. S. citizen or lawful permanent resident.
2. Was in possession of an immigrant visa or equivalent document and was otherwise admissible to the U.S. at the time of such admission except for the grounds of inadmissibility which was the result of his or her fraud or misrepresentation.

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You may qualify for a waiver because you are the daughter of a U.S. citizen. At the time of your admission to the U. S. you are in possession of an immigrant visa and you are otherwise admissible except for your prior fraud or misrepresentation. The Immigration Judge has the discretion to grant a waiver in this situation. The Judge will weigh the positive factors about your case and compare them with the negative factors. The positive factors are your ties to the United States such as your relatives, your contribution to the community, your length of stay in the U.S., your good moral character and other positive factors. The negative factors are your fraud or misrepresentation and any criminal case committed while you are in the U.S. If the judge found out that your positive factors outweighs the negative factors the waiver will be granted.

For further information or questions you may have, please do not hesitate to contact The Law Offices of Michael H. Markovitch.