Aliens Entering with Fraudulent Documentation and Married with U.S. Citizens or Otherwise Qualifying as Immediate Relatives May Now Adjust Status to Permanent Residence in New York if Hardship Waiver is Granted.

By Alan Lee, Esq.

The New York District Office of U.S.C.I.S. announced in its November 2008 liaison meeting with the New York Chapter of the American Immigration Lawyers Association (AILA) that it had harmonized its treatment of aliens entering with fraudulent documentation and applying for adjustment of status to permanent residence in both its Manhattan and Garden City offices. The District stated that the Ninth Circuit decision had been vacated and the District now follows the Third Circuit case in both New York and Garden City offices and that these applicants are eligible to adjust, I-601 waivers will be accepted, and applicants can adjust if the I-601 waiver is granted. This is big news as this is the first time to our knowledge that a district office of U.S.C.I.S. has enunciated such a clear policy on this controversial question of law.

This policy will mainly affect many persons who have the basis to immigrate as immediate relatives of U.S. citizens, but were previously thought not eligible to adjust status because they entered with fraudulent documentation and were not benefited under Section 245(i). Immediate relatives are defined as a U.S. citizen's spouse, parent, or child under the age of 21 and unmarried. Section 245(i) allows most illegal aliens to adjust status upon payment of a fine amount of $1,000 if they either filed for an immigrant visa petition or labor certification application by April 30, 2001, and were physically present in the country on December 21, 2000. A few examples of persons who might now qualify under the New York District's stated policy are the following: A woman entering the country in 2003 with a false passport who later marries a U.S. citizen and has one or two children may now be able to adjust status if living in New York. Other examples may be a child (under the age of 21 and unmarried) entering with fraudulent documentation in 2002 whose parent has become a U.S. citizen; or the parent of a U.S. citizen entering in 1999 whose son or daughter over the age of 21 has just become a U.S. citizen if the parent's mother or father holds U.S. citizenship or permanent residence. (Please note however, that a fraudulent document for this purpose does not include a U.S. passport or other false claim to U.S. citizenship used for entry on or after September 30, 1996, since such act constitutes a separate permanent bar to this country).

Several questions of course may arise during the adjudications. One may very well be whether an applicant actually resides in New York. Examiners may be looking for tax returns, W-2s, leases or deeds, utility bills, banking statements, schools attended, job letters, paystubs, etc., to determine the applicant's actual address. A second question may be whether the applicant is able to prove entry with a fraudulent document. Those who have retained the fraudulent document would of course be on much firmer footing than those who have no proof of entry since the burden of proof is upon the applicant to prove inspection and admission. What level of proof will be required may well be in the discretion of the examining officer and his or her supervisor or ultimately an immigration judge. The third question will be whether the applicant has proven the requisite extreme hardship to his/her U.S. citizen/permanent resident parent or spouse to qualify for the
I-601 waiver. The burden of proof is upon the applicant to establish eligibility for the waiver by a preponderance of the evidence. Factors which are relevant in the consideration are related to a U.S. citizen or permanent resident parent or spouse, and not to the applicant. They can include the presence of lawful permanent resident or U.S. citizen family ties to this country; the qualifying relative's family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative's ties to such countries; the financial impact of departure from this country; significant conditions of health, particularly when ties to an unavailability of suitable medical care in the country to which the qualifying relative would relocate; and any other factors which are relevant to the hardship of the qualifying relative.

At this time, applicants who believe that they are qualified to apply should seek legal counsel. The clear policy as stated by the New York District Office is highly encouraging. We note that the Ninth Circuit case referred to by the District Office, Orozco v. Mukasey, had previously held that such individuals were not eligible to adjust status as they did not meet the requirement of having been lawfully admitted. That case was vacated on joint motion of both the petitioner and Government on October 20, 2008.


The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

This article 2009 Alan Lee, Esq.


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