World Journal Weekly Q & A - March 4, 2007Q & A 1. Fraud at the time of Entry and What Can be Done When Such is Discovered at the time of the Adjustment of Status Interview for Permanent ResidenceChen Reader Asked: My husband came to U.S. under B1 visa in 1997 and he applied 245(i) labor certification in 2001. I wanted to come to U.S. to be reunited with my husband, but my B1 was denied, so I applied a fake B1 under other person’s name and was approved. I came to U.S. in November 1999 and gave birth to our daughter in 2003. Our daughter’s birth paper showed the fake name as mother’s name. When I applied for I-485 in 2003, I did not reveal the fake B1 entry but put down “sneaked into U.S.”. But in 2005 during my adjustment interview, I told the examiner the truth of my entry. Examiner took away my fake passport and told me to wait for notice. I then immediately submitted an I-212 for waiver, along with our joint bank statements, bank accounts, credit card statements, lease, daughter’s birth paper and happy family pictures. Our eldest daughter is still in China and my husband applied I-824 in 2003 for her. My husband now has received his green card but I have not heard any thing about my case. 1. Did I commit a fraud by lying on my I-485? Will I be departed? Will my husband’s 245(i) and my U.S. born daughter help me in my case? 2. I have applied for C8 extension. If the Immigration asks me to do biometrics, will I be arrested? Will immigration officers come to my home and arrest me? 3. How to apply for our daughter in China? Do we need to file another I-824? What is the income level for our daughter’s affidavit of support? When can our daughter come to U.S.? 4. How do I trace my case? If the immigration denies my I-485, what will they do? Dear reader: 1 It is up to an immigration examiner whether to charge you with a misrepresentation on the I-485 application, but I do not believe that putting down "sneaked into U.S." when entering with a fake B-1 entry is sufficient by itself to sustain a charge of misrepresentation, especially where you informed the examiner of the truth of the entry at the time of adjustment of status interview. The larger problem is the entry itself in which you apparently used not only a fake visa but fake passport to enter the country. Such a deed generally qualifies as fraud. In the absence of a waiver being granted, you will not obtain your permanent residence through your husband's case. Whether you will be deported is a question that has many more steps to be taken before such can be determined. (This is of course assuming that you do not already have a final order of deportation or removal against you). I am a little perplexed, though, whether or not you confused the waiver form that you filed. A waiver for fraud is submitted on Form I-601 application for waiver of grounds of excludability. Form I-212 is used for requesting permission to apply for admission into the U.S. after deportation or removal and applies only where an individual has already been deported. For an I-601, you must show that it would cause extreme hardship to a U.S. citizen or permanent resident parent or spouse. In this case, you at least have your permanent resident husband upon whom to base a waiver application. Your husband's section 245(i) eligibility (which allows an applicant to interview in the U.S. upon payment of a fine amount of $1,000 provided he/she had filed a labor certification application or immigrant visa petition by April 30, 2001 and was physically present in the U.S. on December 21, 2000) assists you in establishing the basis for your adjustment of status to permanent residence, and your U.S. citizen daughter can also help in establishing the extreme hardship for your husband. 2 As your I-485 application is still pending at this time, you should not be arrested at the time of doing biometrics unless there are other circumstances in your case that you have not written down in your questions. I note to you stated you applied for a C 8 extension, an employment authorization document which is associated with an asylum application. Did you make the wrong designation or did you actually apply for political asylum? If you did apply for political asylum, what was the result? 3 Your husband or his attorney can either attempt to trace the path of the I-824 which was submitted in 2003 or file another I-824 application at this time. The only negative factor against refiling an I-824 application would be if your elder daughter were in danger of aging out and you needed to prove the earlier filing for her to be protected under the Child Status Protection Act (CSPA). I assume that your elder daughter is nowhere near the age of 21 since your other daughter is only 3-4 years old at this time. The current poverty level for a family of four is $25,000 annually. In our experience, the I-824 process for dependents residing in China usually takes at least a year after the principal alien is approved for permanent residence before the dependent can immigrate to the States. 4 To trace your case, you or your attorney can write letters to the immigration examiner and if there is no response for some time, to his/her supervisor. You can also occasionally do an InfoPass to set an appointment at the local USCIS office to check the progress of your case. You can further enlist the aid of your local Congressman or Senator. In the event that U.S.C.I.S. denies the I-485, you should have an attorney look at the denial who is familiar with immigration law to decide your next step.
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Copyright © 2003-2007 Alan Lee,
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