Material Misrepresentation

QUESTION:  I am about to file the I-485 in EB2 category.  I just came to know that a misrepreentation made on a nonimmigrant visa application in 2007(that related to a past conviction in 1995) might be a serious problem regarding inadmissibility.  Is this true?

REPLY:  Thank you for your question.  I cannot provide case-specific information without first learning the details of your case.  However, I have provided some information below that should be helpful.

Any material misrepresentation that is made in connection with an application for an immigration benefit renders the individual inadmissible for life; it does not matter how long ago the misrepresentation was made.  See INA 212(a)(6)(C)(i).  The act of misrepresentation must have been both willful and material.  The first step is to always review the alleged fraud/misrepresentation to determine whether it was willful and material for immigration purposes.

There is an immigrant waiver available to overcome inadmissibility based upon fraud/misrepresentation under INA § 212(i).  This waiver requires that the applicant demonstrate that his/her refusal of admission would result in extreme hardship to the U.S. citizen or lawfully resident spouse or parent of the applicant.  Unfortunately, there is not an immigrant waiver available to individuals who do not have a U.S. citizen or permanent resident spouse or parent.

You should also be aware that many criminal convictions are also grounds of inadmissibility.  There are immigrant waivers available for most criminal convictions, which can be found at INA 212(h).

If you would like to submit additional information about your case and receive a complete professional analysis, please consider contacting my office to set up a consultation. 

Withdrawal of Application for Admission

Foreign nationals who apply for admission and are told that they are inadmissible to the U.S. are eligible to request permission to withdraw his/her application for admission.  CBP officials have several choices when an individual applies for admission to the U.S. and is deemed inadmissible at the port of entry.

Read more about withdrawal of application for admission

9th Circuit Court of Appeals to determine whether expedited removal applies to Canadians

The appeal brief was filed yesterday in a 9th Circuit case regarding the issue of whether the expedited removal provision of the Immigration and Nationality Act applies to Canadian citizens applying for admission to the U.S. as visitors.  A decision is not expected for a few months, but I will keep you posted!

Justice Derailed: What Raids on New York's Trains and Buses Reveal about Border Patrol's Interior Enforcement Practices

This newly released report was written by the NYU School of Law Immigrant Rights Clinic, the New York Civil Liberties Union and Families for Freedom. 

Download report.  

This report is the first-ever in-depth examination of the Border Patrol’s transportation raids in upstate New York. It analyzes data, obtained through Freedom of Information Act (FOIA) requests, from the Border Patrol’s Rochester Station and Buffalo sector to shed light on the practice and impact of transportation raids. The data paints a disturbing picture of an agency resorting to mission creep in order to increase arrest rates, without regard for the costs and consequences of its practices, including to its own mission to protect the border.

A Brief History of the Department of Homeland Security

The Department of Homeland Security ("DHS") has recently released a new publication: Brief History of the Department of Homeland Security.  The 34-page document includes organizational charts and links to government documents, including executive orders and legislation as they relate to the history and establishment of the DHS.

http://www.dhs.gov/xlibrary/assets/brief_documentary_history_of_dhs_2001_2008.pdf