Inadmissibility: Waivers And Relief

By: Aurora Vega-Buzon, Esq.

In 1992, Roger was petitioned as a married child by his mother, a United States citizen. His visa is now available and his mother is about to pay for the visa fees and affidavit of support fee for Robert, his wife and 3 minor children. However, in 2003, when Robert came as a tourist, he attempted to file a divorce in Nevada 2 weeks after his arrival. In the divorce petition, he claimed he was a resident of Nevada for the last 3 months. The Court found out that he lied in the court papers filed and after investigation, he was charged and convicted for perjury and was sentenced to 3 months in county jail although he was released after only 30 days in jail.

In 1999, Editha came as a tourist and within 3 months, paid a manpower agency in Los Angeles who matched her with a company in LA's garment district willing to file an H-1B working visa petition for her. The H-1B petition was denied for being bogus and fraudulent as there was no real job or position available for her in the company. Editha stayed on for another 7 months but eventually went home in 2000. Her father immediately filed a petition for her as a single child of a permanent resident. Now, her visa is also available.

Due to past criminal and immigration violations, Roger and Editha may be inadmissible (meaning they are barred from getting their immigrant visas) Roger, for his prior perjury conviction (which is a crime involving moral turpitude); and Editha, for overstaying her tourist visa for over 6 months and, possibly for fraud (the bogus H-1B). Nevertheless, they may be entitled to waivers of inadmissibility and/or statutory exceptions under the Immigration and Nationality Act (INA) and other federal laws.

Waivers of inadmissibility are available if we can prove extreme hardship to qualifying relatives in the United States - that means Roger and Editha must submit evidence to prove that Roger's U.S. citizen mother and Editha's permanent resident father will suffer extreme hardship if visas are not granted to Roger and/or Editha.

For Roger, his 2003 perjury conviction in Nevada may be eligible under the "petty offense exception" under Section 212 (a)(2)(A)(ii) of the INA. The said exception provides that the bar to admission of an alien convicted for a crime of moral turpitude shall not apply if the alien (i) has committed only one crime involving moral turpitude; (2) must not have been sentenced to a term of imprisonment in excess of six months (regardless of the extent to which the sentence was ultimately executed); and (3) the offense must have a maximum possible sentence of one year. If Roger cannot avail of this exception, then he can file for a waiver under Section 212(h) of the INA.

Editha has 2 hurdles : the fraudulent H-1B petition and overstay of her tourist visa for more than 6 months. A good immigration attorney should first challenge any findings by the United States Embassy that she had a knowing, active and deliberate role in the making of false statements, and in the filing of the bogus H-1B petition. If the Embassy finds fraud, she can file a "fraud waiver" under Section 212 (i) of the INA. Should there be no finding of fraud, Editha is still subject to the 3-year bar due to her overstay and for this, she can file a waiver under INA Section 212 (a)(9)(B)(v).

Approval of waivers is based solely on the discretion of the United States Attorney General. Favorable discretion will be exercised if extreme hardship is clearly proven by a totality of factors affecting the parents of Roger and Editha, relating to- health and medical conditions, other physical and emotional conditions, personal considerations, financial situation, gainful employment, education, length of residence in the United States, presence of other family members in the United States, and other factors . A good quality waiver should contain credible declarations and strong supporting evidence explaining how each hardship factor will cause extreme hardship to Roger's mother and Editha's father. A good attorney knows it is not enough to submit just a stack of documents to the U.S. Embassy in Manila - to secure a favorable exercise of discretion, it is important to present an exhaustive and well-developed waiver application packet.

Atty. Aurora Vega-Buzon is a partner in The Law Firm of Chua Tinsay and Vega (CTV) - a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max's Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277;
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