Can you apply for adjustment of status due to marriage to US Citizen if you falsely stated you are green card holder on your job application?
Even though she committed fraud, based on the marriage to the US citizen, she can file a waiver petition. In order to succeed in waiver, she needs to demonstrate extreme hardship.
However, USCIS has the discretion to waive inadmissibility. The Attorney General may, in the discretion of the Attorney General, waive the application of clause (i) of subsection (a)(6)(C) (INA section 212(a)(6)(C)(i)), in the case of an immigrant who is the spouse of a United States citizen, if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen.
Note that an alien’s inadmissibility based on a false claim to U.S. citizenship made on or after September 30, 1996 cannot be waived through a waiver for fraud or willful misrepresentation. However, because IIRIRA’s changes were not retroactive, applicants who falsely claimed U.S. citizenship before September 30, 1996, are considered inadmissible for fraud or willful misrepresentation and may still seek the fraud or willful misrepresentation waiver.
In the present case, she claims that she is an immigrant (Green card holder not an US Citizen) therefore waiver is available, if she demonstrated extreme hardship.
General conditions for waiver:
An applicant who is inadmissible for fraud or willful misrepresentation may be eligible for a waiver. A waiver of inadmissibility allows an applicant to enter the United States or obtain an immigration benefit despite having been found inadmissible. The purpose of a waiver for inadmissibility due to fraud or willful misrepresentation is to:
- Provide humanitarian relief and promote family unity;
- Ensure the applicant merits favorable discretion based on positive factors outweighing the applicant’s fraud or willful misrepresentation and any other negative factors; and
- Allow the applicant to overcome the inadmissibility or removability ground
In the present case she is eligible to apply for waiver under INA 212(i).
Evidence to show Extreme Hardship:
For applying a waiver from a ground of inadmissibility, we need to show extreme hardship and we must submit evidence establishing the family relationship (such as a birth certificate or marriage certificate, etc.) and include evidence that shows the denial of admission would result in extreme hardship to a qualifying relative (the U.S. citizen). And also we need to include a statement explaining why her denial of admission would result in extreme hardship to her qualifying relative.
Factors that USCIS considers when determining extreme hardship include, but are not limited to:
A. Health.
For example: Ongoing or specialized treatment required for a physical or mental condition, availability and quality of such treatment in the foreign country, anticipated duration of the treatment, chronic vs. acute or long vs. short-term care, and need for the applicant to assist with any physical or mental conditions
B. Financial Consideration:
For example: Future employability, loss due to sale of a home or business, termination of a professional practice, decline in standard of living, ability to recoup short-term losses, cost of extraordinary needs such as special education or training for children with special needs, and cost of care for family members (elderly and sick parents);
C. Education.
For example: Loss of opportunity for higher education, lower quality or limited scope of education options, disruption of current program, requirement to be educated in a foreign language or culture with ensuing loss of time or pay level, availability of special requirements, such as training programs or internships in specific fields;
D. Personal Considerations.
For example: Close relatives in the United States and their country of birth or citizenship, separation from spouse or children, ages of involved parties, length of residence and community ties in the United States; and
E. Special Factors.
Cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; and lack of access to social institutions (official or unofficial) for support, guidance, or protection.
Evidence of extreme hardship may include, but is not limited to:
Affidavits from the qualifying relative or other individuals with personal knowledge of the claimed hardships;
Expert opinions;
Evidence of employment or business ties, such as payroll records or tax statements;
Evidence of monthly expenditures such as a mortgage, rental agreement, bills and invoices;
Other financial records supporting any claimed financial hardships;
Medical documentation and/or evaluations by medical professionals supporting any claimed medical hardships;
Records of membership in community organizations, volunteer confirmation, and evidence of cultural affiliations;
Birth, marriage, or adoption certificates supporting any claimed family ties;
Country-condition reports; and
Any other evidence you believe supports the claimed hardships C
