Nonimmigrants with immigration violations and the waiver application

Most of the time, complications in obtaining visas are the result of past errors committed by an applicant, which could have been avoided. These past wrongful acts may come to haunt the future applicant for visa.

Elna and her husband Paul were green card holders and they have a US citizen-born daughter. Paul later moved back to the Philippines for work and Elna would travel often to be with him.

To keep her green card status, she would regularly return to the US and obtain reentry permits for her long trips.

Five years ago, Elna went to the Philippines for 11 months. She was erroneously told by a friend that she will have problems when she returns to the US because she has spent too much time in the Philippines and does not have a reentry permit.

Fake arrival stamp

Elna was worried and sought assistance from this friend. She was referred to a former airport employee who gave her a fake arrival stamp on her passport to show that she was in the Philippines for only one month.

When Elna returned to the US, the immigration officer discovered the fake arrival stamp. To avoid removal proceedings, Elna admitted to the fake stamp, and abandoned her resident status and voluntarily returned to the Philippines.

Elna has been living in the Philippines since she abandoned her status. Elna’s daughter Julia, who lives in the US, is pregnant. She wants to go back for her first grandchild’s birth.

She applies for a tourist visa at the US Embassy but her application is denied because she is inadmissible for fraud based on the fake arrival stamp she previously used. Will Elna be able to obtain a tourist visa to visit Julia and her family?

All grounds of inadmissibility

Elna is eligible to apply for a 212(d)(3) waiver for her fraud. Except for security-related grounds, this waiver applies to virtually all grounds of inadmissibility including visa overstay, criminal records, unauthorized employment, fraud/misrepresentation and removal orders.

The waiver is only available to nonimmigrant visa applicants such as tourists, H-1Bs, students, etc. Eligibility does not depend on having a qualifying family member or the passage of a specified time since the immigration violation.

As there is no specific form for the waiver, the applicant will need to explain the circumstances that led to the immigration violation and provide evidence that he or she is not a threat to the US.

Evidence of life changes such as rehabilitation or good character, established career, good family and community ties in order to persuade the consular officer that the immigration violation will not occur again.  The decision to grant this waiver is discretionary.

The waiver can take approximately four to six months to be processed. While the waiver is available to a broad range of applicants, it is only a temporary solution.

The waiver is valid for one year and will need to be renewed each time the applicant applies for a visa.

Considering the harsh consequences involved in fraud and misrepresentation, it is best to avoid committing any immigration violation as it will always affect your chances of coming to the US and will only result in difficult and lengthy separations from your family, friends and business matters.

(The author may be reached at [email protected], facebook.com

/tancincolaw, www.tancinco.com or at [02] 721-1963.)