Question: Under the US Immigration laws a waiver of misrepresentation may be granted if the applicant has a parent, spouse, son or daughter who is a US citizen or lawful permanent resident. What happen if the US citizen parent or any of the qualifying relatives die?
Answer: Beforehand, the Board of Immigration Appeals interpreted this provision to be the “son of living US citizen. This interpretation of the law was overruled on May 19, 2010 when the Ninth Circuit Court of Appeals of the United States in Rolando Manapa Federiso vs. Eric H. Holder, Jr., Attorney General decided that the plain meaning of “son of a US citizen” in the waiver statute in the Immigration and Nationality Act to mean “son of US citizen even after the death of the US citizen parent.
Question: What is the significance of the above decision for those who committed a misrepresentation of material fact such as entering the US as single but actually married in securing a waiver?
Answer: The court decision created a lot of opportunities for those who need a qualifying relative to seek a waiver of misrepresentation but could not do so before because their qualifying US citizen parents already died. This decision will allow those who committed a misrepresentation of material fact in securing an immigrant visa to continue to seek a waiver even if their US citizen parent died.
Question: What is an example of the waiver of misrepresentation request?
Answer: For example, Allan was petitioned by Mama, his mother in 1981 as single son of a Lawful Permanent Resident. Mama became a US citizen in 1986. Allan had a secret marriage in 1987. Allan was interviewed in 1988 under F-2B as single son of a Lawful Permanent Resident. He did not disclose his marriage and was able to get an immigrant visa and entered the United States. The USCIS discovered this when he filed for naturalization. He was placed in Removal Proceedings in 1995. Before his case goes to trial, his mother died. Under these circumstances the Immigration Judge may still grant him a waiver of misrepresentation of material fact in obtaining an immigrant visa even if his qualifying relative, Mama his mother, already died. This example is based on the court ruling in the above case.
Note: This is not a legal advice.
Immigration news
On December 22, 2011, we received an approval of a waiver of misrepresentation from the Immigration Court for an alien who entered as single but actually married.
On November 7, 2011, we received an approval from the Immigration Court for waiver of misrepresentation for a person who entered the US as single but actually married. The person can now apply with naturalization.
On October 25, 2011, we received an approval of adjustment of status for an alien who was originally deported in absentia.
On September 22, 2011, we received an approval from USCIS for adjustment of status using cross chargeability that enabled the beneficiary to use the worldwide priority date (which is faster) instead of the Philippines priority date.
On August 30, 2011, we received an approval from Immigration Court of an adjustment of status for an alien who was previously denied by USCIS.
On July 28, 2011, we received an approval of adjustment of status for an alien who entered the US without valid documents but qualified under Sec. 245(i).
On June 28, 2011, we received an approval in Immigration Court for an adjustment of status. The applicant was previously denied on the I-130 petition because they did it without an attorney. We filed a second I-130 petition that was approved based on good faith marriage.
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Crispin Caday Lozano is an active member of the State Bar of California and he specializes in immigration law. His offices are located at 17057 Bellflower Blvd. Suite 205, Bellflower, CA 90706 and 1290 B Street, Suite 205, Hayward, California 94541 and at 777 N. First St., Suite 333, San Jose, CA 95112. You can contact him at telephone (562) 461-1355 and (510) 538-7188.
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