World Journal Weekly Q & A - March 4, 2007
Q & A 1.
Q&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
Residence
Chen 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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