31 Dec Death of parents is not a hindrance to apply for waiver of misrepresentation
If you committed a misrepresentation of material fact in obtaining an immigrant visa such as not telling the consul that you were already married at the time of interview or entry to the United States but you were petitioned as single son or daughter, you may request a waiver of this misrepresentation if you have a qualifying relative such as parents, spouse or sons or daughters who are U.S. citizens or lawful permanent residents. In many cases, your only available relative is your parents but unfortunately they passed away. There has been a change in the interpretation of the law recently which we will discuss below.
Question: Under the U. S. Immigration laws a waiver of misrepresentation may be granted if the applicant has a parent, spouse, son or daughter who is a U. S. citizen or lawful permanent resident. What happen if the U.S. 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 U.S. 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 U.S. citizen” in the waiver statute in the Immigration and Nationality Act to mean “son of U.S. citizen even after the death of the U. S. citizen parent.
Question: What is the significance of the above decision for those who committed a misrepresentation of material fact such as entering the U.S. 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 U.S. 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 U.S. 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 U.S. 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.
If you have questions about the same matters or have the same problem, you may contact our office for free consultation.
Note: This is not a legal advice.