Remedy for Misrepresenting Marital Status. Immigration Q and A

US Immigration

Posted 12/29/2007

By REUBEN SEGURITAN

Remedy for Misrepresenting Marital Status

The case of the prominent Filipino couple in Central Pennsylvania who are under deportation proceedings because of alleged visa fraud illustrates a common immigration problem among Filipino immigrant visa applicants. As reported by the Associated Press and several Filipino newspapers, both Dr. Pedro Servano and his wife, Salvacion, were separately petitioned by their mothers in 1978 when they were still single. They got married in 1980 while waiting for their visa numbers. Salvacion obtained her immigrant visa two years later while Dr. Servano got his in 1984. They did not disclose the change in their marital status at the consular interview.

Undetected for Years

For years, the misrepresentation went undetected. It was only in 1990, when they were interviewed for their naturalization applications, that the United States Citizenship and Immigration Services (USCIS) noticed the alleged fraud. They were soon placed in deportation proceedings.

Long Wait

When an immigrant parent petitions his/her single son or daughter, the case falls under the family-based second preference category. Said category has several years of waiting time for a visa number. In the case of Filipinos, the current waiting time is about five years if the beneficiary is under 21 years old or eleven years if he/she is 21 years old or over.

For the visa petition to be valid, the son or daughter must remain single. But many Filipino applicants cannot wait that long. They get married and have children while waiting for the visa number. Marriage, of course, automatically invalidates the visa petition.

Waiver Remedy

Is there a remedy available for those placed under deportation proceedings?

With the help of an experienced immigration lawyer, there is a relief known as a waiver of deportability under Section 237 (a)(1)(H) of the Immigration and Nationality Act.

To qualify for the waiver, the person must be the spouse, parent, son or daughter of a U.S. citizen or permanent resident and have been in possession of an immigrant visa and otherwise admissible at the time of admission to the U.S.

Factors to be Considered

In adjudicating waiver cases, the Immigration Court will weigh the positive as well as the negative factors pertaining to the waiver applicant.

Positive factors include family ties in the U.S., lengthy period of residence in this country, hardship to himself./herself or his/her family, stable employment history, property or business ownership, service to the community and any other evidence of his/her good character or behavior.

The adverse factors that will be considered include the nature of the fraud or misrepresentation committed, criminal record, or any other evidence of bad character or behavior.

REUBEN S. SEGURITAN

has been practicing law for over 30 years. He was former immigration editor and is author of a book on immigrant experiences. He frequently speaks on immigrant issues and for his advocacy efforts he was the recipient of two presidential awards by President Ramos and an award by the Commission on Filipinos Overseas. He previously taught business law and international politics. For further information, you may call him at 212 695 5281 or log on to his website at www.seguritan.com