WAIVER FOR FRAUD OR MISREPRESENTATION

By Reuben S. Seguritan

Fraud or willful misrepresentation of a material fact is a ground of inadmissibility that prevents an alien from getting a green card. The act of entering the United States under a different name is an example.

However, the alien may apply for a waiver to forgive the fraud. To be eligible for this waiver, the alien must have a qualifying relative. The law considers only U.S. citizen or lawful permanent resident spouses or parents to be qualifying relatives. Children are not qualifying relatives for purposes of the waiver.

The alien must demonstrate extreme hardship to the qualifying relative in case of a finding of inadmissibility. Several factors are relevant in determining extreme hardship, including the qualifying relative’s family ties in the United States; political and economic conditions in the country of relocation; the financial impact of departure from the U.S.; and health conditions along with the unavailability of suitable medical care in the country of relocation.

Not only must these eligibility requirements be met, but the alien must also show that his/her case warrants a grant of waiver in the exercise of discretion. The negative factors must be balanced with the equities or the social and humane considerations in one’s case.

Obtaining a waiver therefore is not easy, but by no means is it impossible. In a case that our firm recently handled, we were able to help a client get his green card despite the misrepresentation he committed as he entered the U.S. with an assumed name more than thirty years ago.

Our client left the Philippines in the early 1980s to escape poverty and political strife, entered the U.S. using a passport and B-2 visa with a different name, and remained past his authorized period of stay.

Two years later, he met a fellow recent immigrant who was working as a nurse at a New York hospital and would later get her green card and then her U.S. citizenship. They fell in love, had children, and lived together as husband and wife ever since.

For many years, our client kept secret his immigration status from other people until he neared retirement age. Unless he becomes a lawful permanent resident, all his hard work and perseverance since he arrived in the U.S. would be for naught. He had to come to terms with his past and decide whether to finally apply for a green card.

Faced with the possibility of being denied a green card if found ineligible for a waiver and eventually placed in deportation, he sought our firm’s assistance.

We showed the immigration authorities that his U.S. citizen wife would suffer extreme hardship whether she remains in the United States by herself or is forced to relocate to the Philippines to be with our client.

We submitted proof of her health conditions, including diabetes and hypertension, for which she was receiving top-notch medical care in the U.S., and compared that with the high cost of medicines and treatment in the Philippines. We pointed out that the wife has many family ties in the U.S., including her U.S. citizen children, while she no longer has family in the Philippines.

We also argued that relocation would cause financial hardship because she would lose her job at the hospital in the U.S. but most likely not get hired in the Philippines because of her age and the unfavorable labor market conditions for nurses there.

Our waiver packet included supporting affidavits and documentation to evidence the wife’s extreme hardship as well as our client’s good moral character.

Fortunately, we were able to convince the USCIS that the U.S. citizen wife would face extreme hardship if the waiver is denied and that our client was deserving of a favorable exercise of discretion.

J-1 Exchange Visitor Visa

By Reuben Seguritan

The J-1 exchange visitor visa allows a foreign national to remain in the US for a specific period of time for training purposes. After the completion of the training program, he must leave the US and return to his home country in order to share the knowledge and skills he gained to his countrymen. Examples of exchange visitors are physicians, professors or scholars, research assistants, students, trainees and teachers.

There is a two-year home residency requirement for a foreign national who was financed to go to the US by his home country or the US government itself, or if the skill gained in the training program is needed in his home country, or if he is a medical graduate who participated in a residency in the US. This residency requirement states that he must return to his home country for at least two years after the end of the training program before becoming eligible to change status in the US or receive a nonimmigrant work visa or an immigrant visa. In some cases, a waiver of the two-year home residency requirement may be obtained from the home country.

J-1 programs are administered through the US Department of State (DOS). The applicant must have a program sponsor in the US who is approved by DOS to sponsor J-1 trainees and interns who will be working for the third party “host” employers. These hosts will be the ones to train and/ or educate the trainee. The J-1 program is available for the following fields: arts and culture; business, management, commerce and finance; sciences, mathematics, architecture, and industrial occupations; information, media and communications; public administration and law; education and social sciences; hospitality and tourism; and agriculture, forestry and fishing.

The host employer (or employing organization) must meet certain criteria: He must have a valid Federal Employer Identification Number (EIN) and must have been operating for at least one year. He must offer proof of valid workers compensation or an exemption for such and may not use the intern/trainee program for ordinary employment or staffing. He must sign a statement stating that he does not intend to assist the trainee in remaining in the US beyond the authorized program dates or change status to another category in order to remain in the US. This is required because some host employers might attempt to overcome the H-1B (nonimmigrant work visa) cap or other immigration hurdles by getting J-1 visa trainees instead.

It is easier for companies and organizations to apply for designation as a J-1 sponsor for training/internship programs. This is because they can sponsor trainees/interns directly and such trainees/interns will then apply for J-1 visas at the US consulate in their home countries.

US citizens, US permanent residents and other legal entities in the US can also become program sponsors. They must show the following in order to become program sponsors: 1. They have the ability to comply and remain in continual compliance with all applicable provisions of the regulations; 2. That they can meet at all times their financial obligations and responsibilities attendant to successful sponsorship of their exchange visitor program; 3. That the entity or proposed responsible officers has no fewer than 3 years experience in international exchange. They have to provide biographic information regarding the proposed responsible officer and detailed information describing experience in the selection, screening, orientation, placement, and oversight of foreign nationals in exchange activities is required. They should also provide audit report or compilation performed by an independent certified public accounting firm to show financial stability. They should submit the training plan.

The newly approved J-1 sponsor must appoint adequate staff and support services with the qualifications and training to administer the program. The organization must have one responsible officer (RO) and an alternate responsible officer (ARO) to administer the program under the supervision of the RO. The Sponsor must devise a method and criteria for selecting participants for the programs, which include the suitability of the program for prospective participants, and that participants have sufficient proficiency in the English language to participate in the programs.