[COLUMN] Is there hope after a fraud denial?

DEAR Attorney Gurfinkel:

I was petitioned by my U.S. citizen parent in 2011 as single. The priority date became current, and I submitted all the forms and paid all the fees. When I went for my interview at the U.S. Embassy, my visa was refused because the consul said I had committed fraud about 15 years ago when I applied for a tourist visa.

At that time, I paid someone who said they could help me get a tourist visa, and apparently they submitted some fake documents with my application, including land titles and bank statements. The consul saw that the documents were fake (because apparently this same fixer had submitted the same documents for other people, so the embassy had a record of these documents).

My tourist visa was refused due to fraud, and now my immigrant visa is also being refused for that same fraud. But the fraud happened so long ago. Is there any hope for me to immigrate to the U.S.?

Very truly yours,

JG

Dear JG:

If a person is ever found to have committed fraud, the fraud stays on their record forever. Therefore, even if a person committed fraud decades ago, it could still come up whenever they apply for another visa. Therefore, even though your fraud occurred 15 years ago in connection with applying for a visitor’s visa, it is still on your record.

In such a case, a person is required to apply for a waiver (or forgiveness) of their fraud. But not everyone is eligible to apply for a fraud waiver. The basic requirements and eligibility for a fraud waiver include:

1. The person must have a “qualifying relative,” which includes either a spouse or a parent who is a U.S. citizen or green card holder. U.S. citizen children are not considered qualifying relatives. If a person committed fraud, but does not have a qualifying relative, they cannot even apply for a waiver. (I have come across cases where a U.S. citizen child had petitioned his or her parent and the petition was approved, but the parent had committed fraud in the past but had no qualifying relative. The child could not be considered a qualifying relative. Therefore, the parent could not file for a fraud waiver.) In your case, it appears you have a U.S. citizen parent, who could be considered a “qualifying relative.”
2. The person must demonstrate to the United States Citizenship and Immigration Services (USCIS) that their qualifying relative would suffer “extreme hardship” if the fraud waiver is not approved. Proving extreme hardship is very complex and detailed, with numerous factors that have to be proved and documented. In fact, the USCIS Policy Manual has an entire chapter on extreme hardship, detailing what it means, what are the factors, and how to go about proving it.
3. If a convincing presentation is made, demonstrating that the qualifying relative will suffer extreme hardship, the waiver could be approved, thereby erasing the person’s fraud from their record and enabling them to either be issued their immigrant visa (if they are applying outside the U.S.), or have their adjustment of status approved (if they are applying for their green card in the U.S.).

Putting together a successful fraud waiver package is not something I would recommend that a person do on their own. Instead, if you have committed fraud, and are required to submit a fraud waiver, you should consult with an attorney who can evaluate your case, and help prepare and package a fraud waiver application, making sure all the necessary documents are included, and that the hardship factors are proved. While having an attorney assist does not “guarantee” approval, I believe it could greatly increase your chances of success. Remember, as long as the fraud is on your record, you will not be able to legalize your status or come to the U.S.

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Michael J. Gurfinkel has been an attorney for over 40 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different, and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories,” endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

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