THERE are cases when the alien entered in another name although they are the same person in the passport.
Example: Delia came to the United States in 1999 using a different name in her passport as her real name. She married a U.S. citizen in Jan. 1, 2001 and an immigrant petition was filed by her spouse in March 2001. Delia’s real name is Rhea. In the I-130 petition, she used her real name and the USCIS discovered this matter when she showed her passport. Can Rhea adjust status and what are the conditions?
Analysis: The law requires that for an alien who apply for adjustment of status, the following is required:
A visa is immediately available.
Must have entered the US legally and have legal status at the time of adjustment application. If applying under Sec. 245 (i) the alien must have entered the United States before December 21, 2000 and an immigrant petition or labor certification must have been filed for the alien on or before April 30, 2001.
The alien is not inadmissible. If she is inadmissible, there must be a waiver of inadmissibility approved.
Application of the Law to Rhea’s case: In this case, the first requirement is satisfied because she married a US citizen and a visa is immediately available for her as the spouse. Since she entered the US under a different name, she is not qualified under the normal law of adjustment of status. She will need to file under Sec. 245(i). She qualified under Sec. 245(i) because she is present in the United States on December 21, 2000 and there was an immigrant petition filed on her behalf before April 30, 2001. Under the third requirement, Rhea is inadmissible because she entered under a different name and this is considered a misrepresentation. She will need to apply for a waiver of inadmissibility to be approved for adjustment of status.
Question: How can Rhea apply for waiver of inadmissibility?
Answer: Rhea will need to file an I-601 waiver and prove that it will be an extreme hardship to her US citizen spouse if her application for adjustment of status is denied.
Question: What should an alien who entered using a different name do to solve their problem?
Answer: The first step is to consult with an immigration attorney who has experienced in this type of cases.
Note: This is not a legal advice.
Hot news of the week
We again have successfully obtained a waiver of fraud or misrepresentation in Immigration Court for a green card holder who entered as single but is actually married. The green card holder who has been in the United States for 17 years has a mother who is a US citizen.
We have just received approval from Administrative Appeals Office of I-601 Waiver. The applicant entered with an assumed name but she has a US citizen spouse and a US citizen child. The I-601 waiver application was initially denied by the USCIS District Office but the denial was reversed on appeal. She now has received her green card.
Green cards without expiration date should be renewed. They have the alternative of applying for naturalization. Please call our office for questions about renewing green cards.
Tips of the week
Waiver for misrepresentation at the time of entry (entered as single but is actually married) may be waived if you have a parent, spouse, son or daughter who is a US citizen or lawful permanent resident. Once approved you may be eligible for naturalization. You should apply now before your personal situation or the law is changed.
Denied adjustment of status and Naturalization applications are now being sent to the Immigration Court.
Income tax filing is required in the proposed legalization. Individual Tax Identification Number (ITIN) can be used for filing tax returns and is required before bank accounts can be opened. Our office assists clients in obtaining ITIN.
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Crispin Caday Lozano is an active member of the State Bar of California and he specializes in immigration law. He earned his Juris Doctor at Western State University in Fullerton, California. 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. (Advertising Supplement)
( Published November 19, 2008 p. B5 LAMDWK )
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