The Golden Door

I recently finished an adjustment of status case which should have been straight-forward.  It involved an elderly couple, both originally from Jamaica.  They had been married for decades, then divorced after wife moved to the United States and they grew apart.  She re-married, to a U.S. citizen, and got her permanent resident status and then her U.S. citizenship.  Her second marriage ended several years later, and several years after that she and her first husband grew close again and re-married.  She then applied for him to obtain his permanent resident status.

They were represented by prior counsel.  Everything seemed fine until they attended the adjustment of status interview.  At the interview, the officer asked about husband’s tourist visa application from 10 years ago.  Apparently, husband, who was recently divorced from wife at that time, had checked the “married” rather than the “divorced” box.  This was deemed by USCIS to be a fraud or misrepresentation and the adjustment of status application was denied.

“Fraud” or “misrepresentation” are words that you do not want to hear from USCIS.  They are definitely a sign that your application is in trouble, because it makes you inadmissible and/or deportable.  Luckily, “fraud” or “misrepresentation” are not as adverse a bar to obtaining immigration benefits as a false claim of U.S. citizenship, which is an immutable (non-waivable) bar unless you fall into a very narrow exception.  Still, it’s a very serious matter.

In this case, husband was illiterate and had not completed his visa application himself.  A stranger waiting in line with him at the visa office helped him.  So the first response to the charge of fraud or misrepresentation should have been that he had no intent to deceive and, further, the alleged deception would not have helped him get his visa.  Had he been married, as indicated on the visa application, to a U.S. lawful permanent resident, as his then ex-wife was by this time, this would have been an adverse factor in his visa application.  This is because having strong ties to the U.S., such as to a lawful permanent resident spouse, weighs against being able to establish strong ties to your home country, a condition of being issued a tourist visa.  So this misrepresentation would not have helped him get his visa approved.

Even had husband deliberately intended to deceive in his visa application, a waiver of this ground of inadmissibility is available if you can demonstrate that denial of the adjustment of status application would result in extreme hardship to a U.S. citizen spouse.  In this case, both husband and wife had serious health problems.  Husband was frail and in severe ill health.  In fact, he had suffered a serious medical emergency in Jamaica the last time he was there from which he could easily have died.  Part of what made that event so life-threatening was that after he arrived at the hospital he was not treated for 16 hours while the hospital demanded upfront payment for treatment.  If he were forced to return to Jamaica then the next time he needed acute medical care he would face the same lack of prompt service and he would be allowed to die waiting for care.  Deportation to Jamaica would be a death sentence.

Prior counsel in the case did not dispute the finding of fraud or misrepresentation, or submit information about husband’s or wife’s medical conditions and medical history.  In fact, the only thing prior counsel submitted to argue hardship was statements from husband and wife, and their friends and family, that they loved each other and had for decades, and now were reunited and could not bear to live apart.  Not good enough.

Long story short, I disputed that husband deliberately misrepresented his marital status, and we submitted medical records and information about hospital conditions in Jamaica, and the case was approved.  What really helped, I believe, was to show the human costs in the case.  This was an elderly man who would have died the next time he needed emergency medical care in Jamaica.  That would have caused an extreme hardship to his wife.