We have received a particularly remarkable green card approval a few weeks ago. USCIS alleged fraud and denied the green card where the spouse of a US citizen had entered the US on visa waiver and then applied for Adjustment of Status (AOS) within a few days after entry. We were retained once the green card had been denied. The allegations of fraud or misrepresentation are particularly troublesome because they operate as a PERMANENT bar against immigration. There is a narrowly tailored waiver available, but it can be difficult to obtain. We filed a Motion to Reopen the denied AOS and applied for a new AOS with the waiver request. Here comes the tricky part -- the waiver request form requires us to concede that we have committed fraud. That was untrue. Our clients had acted innocently. USCIS was of the opinion we must checkmark the box on the waiver form that admits to fraud. I refused to permit that. The reason: if we admit fraud under penalty of perjury, and that admission is false; would that admission not amount to perjury and perhaps fraud? We were willing to take this matter to court. We had sufficient evidence on the record indicating innocence. To our relief, USCIS approved the AOS without further inquiry. PS Note that entering the US on any short term visa (except K visas and dual intent visas like H-1, L-1, etc. – I have a blog entry on what are dual intent visas) and trying to convert to a long term visa or green card can be viewed with suspicion by USCIS. From: Rajiv. Click HERE to watch a video on this discussion. Adjustment of Status Form I-130 Form I-485 ESTA Fraud/Misrepresentation Waiver Engineers
Adjustment of Status Sample Cases
These are some sample cases from our files. It is impossible for us to present all have done past over 15 years of our practice. But these were some cases that came to mind when we started writing this column 2-3 years ago.
The main applicant and his wife filed their I-485 petitions together. At the time of filing, the wife was pregnant. In regards to the required medical examination, there are certain vaccinations that should not be given during pregnancy as they could affect the fetus. After the birth of the baby, the mother is then able to return to the doctor and get the vaccinations that are required the GC process. In this case, the mother’s intention was to breast feed her baby for at least 2 years. They wanted to apply for a waiver of the vaccinations of any kind because she didn't want to get them while breast feeding, regardless of what the doctor said about vaccinations being safe for the nursing baby. We were able to get the I-485 approved for both the main applicant and wife without receiving an RFE or having to file the waiver.
We represented a Computer Software Engineer and his spouse. USCIS denied the applicant’s Form I-485 because his former employer withdrew his previously approved I-140 petition when the applicant moved to a different employer. The employer and their lawyer refused to provide any information regarding the filing. So we were constrained to obtain the relevant information directly from the government. Once we received our client’s job description with his former employer, we were able to assess the applicant’s AC-21 porting eligibility. Based on this information, we filed a motion to reopen and reconsider the I-485, explaining that the applicant’s I-485 should not have been denied, considering his eligibility for AC21 portability. USCIS agreed, vacated the denials, and reopened the case.