Because of the stringent requirements for getting a U.S. visa, some applicants have resorted to extreme measures such as using a false name or assuming the name of another person. They carry this misrepresentation out by using a fake visa or passport.
Assuming that their misrepresentation is not detected at the port of entry, eventually their misdeeds will still catch up with them. When they apply for a green card, be it on the basis of a family-based or employment-based petition, they will be considered inadmissible due to fraud or misrepresentation.
The Immigration and Nationality Act makes inadmissible any alien who, by fraud or willful misrepresentation of a material fact, procures a visa, other documentation or admission to the U.S. or other immigration benefit.
Technically, fraud and material misrepresentation are different. Material misrepresentation requires a willful misrepresentation that is relevant to the alien’s eligibility for a visa. Fraud requires an intent on the part of the alien to deceive a consular or immigration officer, and the officer must believe and act upon the false representation.
In terms of practical effect, however, there is no difference between the two. An alien found to have committed fraud or material misrepresentation faces a lifetime bar from being admitted in the U.S.
The law provides for a discretionary waiver of this type of inadmissibility. The alien would need to show that his removal would cause extreme hardship to a qualifying relative if the waiver were denied.
Only spouses or parents who are U.S. citizens or lawful permanent residents are considered as qualifying relatives. Children, even though they are U.S. citizens, may not be qualifying relatives.
Extreme hardship has no definite meaning but depends on the facts and circumstances of each case. Many factors are considered in determining whether an alien has established extreme hardship to a qualifying relative.
These factors include the qualifying relative’s presence and ties in the U.S.; family ties outside the U.S; conditions in the country where the qualifying relative would relocate; financial impact of his or her departure from the country; and significant health conditions particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.
In one case, the Administrative Appeals Office (AAO) sustained the appeal of a green card applicant from the Philippines whose waiver application was denied. The applicant had used a fraudulent passport in entering the United States.
She applied for adjustment on the basis of her U.S. citizen husband’s immigrant petition but was found inadmissible for procuring admission to the U.S. through fraud or misrepresentation. The USCIS adjudications officer believed that she was unable to demonstrate extreme hardship to her qualifying spouse.
The AAO disagreed and found that extreme hardship to the qualifying spouse was established.
The applicant presented medical records and sworn statements indicating that for many years she and the qualifying spouse had been struggling with infertility and that the applicant would need to undergo in vitro fertilization under the care of her current doctor. She needed to avoid stress and was already being treated for depression and anxiety.
She showed that if she were to be deported to the Philippines, her home country, she would need a new doctor. The husband also would not be able to afford to pay for medical care in the Philippines on his current salary. In fact, if the wife were forced to leave, the husband would not be able to afford basic monthly expenses with just his salary.
There was also evidence showing that the husband would suffer extreme hardship if he relocated to the Philippines with the applicant, such as losing his current employment of many years and experiencing serious allergies as he had in his past visits to the country.