05 Aug Relief in Removal proceedings for marriage fraud
If you were petitioned by your spouse and you received a decision from USCIS stating a finding of marriage fraud you should immediately consult an experienced immigration attorney. The Immigration and Nationality Act Sec. 204 (c) prohibits the approval of a subsequent petition if the alien committed marriage fraud in a prior petition. It also prohibits the approval of the first petition if the Attorney General determined that the marriage is a sham.
The finding of marriage fraud usually happen during the adjustment of status interview mostly in marriage cases. If there are inconsistencies in the responses of the petitioner and beneficiary to the questions raised by the USCIS officer, it will likely trigger a conclusion of marriage fraud. If you received a decision stating your marriage is primarily for the purpose of obtaining immigration benefit, then, your case is likely a marriage fraud case. The result of this decision is that even if your succeeding petition is not marriage case such as employment based or petition by your son or daughter, or parent, the petition will not be approved. There are limited remedies available but you have to act immediately as soon as you received this kind of decision.
One exception to this rule is that if the alien has already obtained an immigrant visa or already adjusted status before he or she is sent to removal proceedings. The prior finding of marriage fraud can be waived and the original entry or adjustment of status as an immigrant can be made valid once the waiver is granted. But if you have not yet received a visa or adjusted your status, then, you have a big problem. Other relief options includes Cancellation of removal if certain requirements are met. Prosecutorial discretion can also be a possible option.
Question: I was charged with fraudulent marriage when I applied for an immigrant visa at the U.S. Embassy in Manila as spouse of a U.S. citizen. I was denied a visa at that time. My spouse divorced me afterwards. Later on my mother petitioned me as single daughter to a lawful permanent resident. When the priority becomes current I applied for immigrant visa and I was approved. When I was applying for naturalization, the USCIS found out the marriage fraud in my record. I was denied my naturalization application and they sent me to removal proceedings. What is my relief from removal?
Answer: You are inadmissible as a Lawful Permanent Resident at the time you obtained your immigrant visa based on the petition of your mother because of the marriage fraud you initially committed. The good news is that you can request for a waiver of the fraud or misrepresentation you have committed. The requirements for this waiver are:
Must be the spouse, parent, son or daughter of a U. S. citizen or lawful permanent resident.
Was in possession of an immigrant visa or equivalent document and was otherwise admissible to the U.S. at the time of such admission except for the grounds of inadmissibility which was the result of his or her fraud or misrepresentation.
You may qualify for a waiver because you are the daughter of a U.S. citizen. At the time of your admission to the U. S. you are in possession of an immigrant visa and you are otherwise admissible except for your prior fraud or misrepresentation. The Immigration Judge has the discretion to grant a waiver in this situation. The Judge will weigh the positive factors about your case and compare them with the negative factors.
Note: This is not a legal advice.