Obtaining a U.S. visa can be a challenging experience. Due to stringent requirements, not every visa applicant is approved. In fact, the percentage of denial is high.
Some previously denied applicants have resorted to desperate measures in order to enter the U.S. They apply again using a false name, or assuming the name of another person. Some use fake visas and passports.
Examples of these desperate measures are using a B-2 visa stamped on a photo substituted passport and using the green card of another such as a brother or sister who looks like them.
If these persons succeed in getting admitted to the U.S. and they later apply for a green card on the basis of a family-based petition or an employment-based petition, they will be considered as inadmissible because of their fraudulent entry.
The Immigration and Nationality Act states that any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation or admission into the U.S. or other immigration benefit, is inadmissible.
This means that they cannot obtain their green card and may be subject to removal. Is there a remedy?
A discretionary waiver is available to them but this requires a qualifying relative and proof that the removal of the alien will cause extreme hardship to the relative if the waiver is denied. A qualifying relative may be a U.S. citizen or lawful permanent resident spouse or parent. A child of said alien is not a qualifying relative.
There is no exact definition of extreme hardship. Immigration judges and the Board of Immigration Appeals determine the presence of extreme hardship on a case by case basis after a consideration of many factors.
These factors include ties of the qualifying family member to the U.S. and outside the U.S.; conditions in the country to which the qualifying family member will be relocated; financial impact of his/her departure from this country; and health conditions of the family member and the alien applicant and the availability of suitable medical care in the country of relocation.
In a leading case, extreme hardship was not established because the alien and his wife did not have strong financial ties to the U.S.; the U.S. citizen knew that her husband was in deportation proceedings when she married him, and she had many relatives in the country where they would be forced to relocate and would not have difficulty making the adjustment there.
But in another case, waiver was granted upon a finding of extreme hardship. In that case, the alien’s wife suffered from severe depression and could not stay alone in their house. She was also concerned about the health of her son who suffered from asthma and required frequent medical attention. Moreover, the country where they would be forced to relocate was in dire economic condition.
An applicant for waiver of inadmissibility due to fraud or misrepresentation should submit Form I-601 and supporting documents. The documents should include an affidavit from the qualifying relative describing in detail the hardship that he/she would face in the U.S. in the event the applicant is removed from the U.S. and also the hardship that he/she will encounter if he/she were to relocate to the country where his/her spouse will return.