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.
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