Nondisclosure of prior unlawful act on provisional waiver application

Victor entered the United States as a crewman in 2002. In 2010, Victor married his US citizen girlfriend, Maria. Together, they have two minor US citizen children. In 2013, Maria filed a petition on Victor’s behalf. It was later approved by the United States Citizenship and Immigration Services (USCIS).

Victor was not able to apply for his green card because he entered the US as a crewman. He then filed an I-601A provisional waiver application to waive his unlawful presence in the US so he can process his green card at the US Embassy in the Philippines.

Victor’s waiver application was recently approved by the USCIS. He left for the Philippines for his immigrant visa interview at the US Embassy.

However, Victor was denied the immigrant visa because the consular officer discovered that he committed fraud and misrepresentation prior to his entry in 2002.

He entered the United States in 1998 using an assumed name. Victor never revealed this fact to this attorney or to his present wife. He thought that this fraud would not be discovered because he committed it only once and was in the US within his authorized stay at that time.

Given this discovery of fraud by the consular officer, are there still options for him to be able to return to the US?

Misrepresentation as ground for inadmissibility

There are several reasons that will result in the denial of a visa. The most common reason is “fraud and misrepresentation.” The provisional waiver that was obtained by Victor did not waive his prior fraud of entering with an assumed name.

The Foreign Affairs Manual defines fraud as “requiring a false representation, with knowledge of its falsity and with the intention to deceive a consular or immigration officer and with the representation having been believed and acted upon by the officer.”

While he did not violate his stay in the US during the time he entered with a different name, the act of using an assumed name is still a ground of inadmissibility.

It must be clear that provisional waiver only relates to unlawful presence in the US. Provisional waivers are not available to people who are subject to one or more grounds of inadmissibility other than unlawful presence. The consular officer will find Victor inadmissible because of his prior fraud.

To resolve his predicament, Victor will need to file a separate regular I-601 waiver, which is distinct from his provisional waiver. This will cause a significant delay. Victor will need to remain in the Philippines until the I-601 waiver is processed and approved, which could take several months.

If Victor had been truthful in the preparation of his provisional waiver application he could have avoided this problem at the US Embassy. He could have prevented physical separation from his wife and children for many months and will remain in the Philippines until he is permitted to apply for entry again to the US.

Obviously, the consequences of Victor’s omission and past actions are costly. His situation highlights the importance of disclosing one’s immigration history and prior unlawful acts in all immigration applications. What may seem to be a minor offense or misrepresentation may actually be a serious barrier to returning to the US.

(The author may be reached at [email protected] or at [02] 721-1963,  www.tancinco.com or through facebook.com/tancincolaw)