‘Fraudulent’ petitioner results in ‘

Dear Atty Gurfinkel:

My husband was petitioned as "single" by his immigrant-father (Category F-2B). While my husband was waiting for his visa, we got married and we had two children. Our childrenís birth certificates reflect the date and place of our marriage. When the time came for my husband to be processed for his visa, he did not disclose our marriage and that he has children, to the Embassy. Instead, my husband immigrated to the U.S. as "single", with no children.

After five years, he applied for U.S. citizenship, and maintained on his application that he was single with no children. He passed his citizenship interview, and is now a U.S. citizen. He believes he could marry me for a second time and petition me as his spouse, using our second date of marriage. He also wants to have "late registered" birth certificates recorded for our children, showing that they were illegitimate and born in our house, with the assistance of a Hilot, in order to "hide" our marriage on the original birth certificates.

I am very nervous about this situation. Although I would love to immigrate to the U.S., I want to do so legally. My husband, as well as several friends and relatives, assure me that now that my husband is a U.S. citizen, he can petition me without any problems.

If my husband petitions me, do you think there will be problems at the Embassy?

Sincerely,

L.I.

Dear L.I.:

One of the LARGEST fraud problems in the Philippines is a situation where a petitioner immigrated to the U.S. as "single", when, in fact, the petitioner was really married at the time. After being a greencard holder, the petitioner later applies to become a U.S. citizen and/or returns to the Philippines to remarry the same spouse a second time. The U.S. citizen then petitions the spouse, using the second date of marriage. What your husband did, and intends to do, is very well known to the U.S. Embassy, and they will most certainly investigate your case in depth.

A lot of people think that once they get their greencard (or citizenship) they are somehow "untouchable", and that the Embassy or INS will not bother checking or investigating how the petitioner originally obtained his greencard. That is not true. Whenever a person petitions a family member, the Embassy and/or INS routinely goes back and checks how the petitioner obtained his legal status. If there are any misrepresentations, irregularities, or fraud in the way in which the petitioner originally immigrated, the petition may not be approved and/or visa would not be issued. Worse yet, the petitioner would then have jeopardized his own status and could face legal proceedings by INS to revoke his greencard, be denaturalized, and possibly be removed/deported from the U.S.

In your case, your husband is not "untouchable". He is very much at risk. He apparently immigrated to the U.S. through fraud, by misrepresenting his marital status. If your husband petitions you, it is very likely that his own case will be reopened and investigated. Once it is found that he immigrated through fraud, then you would not be entitled to a visa. This is because if the petitioner obtained an immigration benefit through fraud (such as a greencard), he is not lawfully entitled to his own greencard. If he is not entitled to a greencard, he is not entitled to citizenship and/or not entitled to petition his family members The Embassy and/or INS may not approve petitions and/or issue visas, if the petitioner immigrated through fraud, and is not entitled to his own "legal" status.

Under your given circumstances, your husband runs the risk of jeopardizing his own status if he petitions you. Instead, I suggest that you consider other legitimate and legal avenues to get to America on your own, or through a petition entirely separate and independent from your husband. For example, if you are a college graduate, you could be petitioned by an employer for a temporary working visa (H-1B). The basic requirements are that: (1) you be a college graduate; (2) there is an employer in the U.S. with a bonafide, legitimate job position related to your college degree; (3) the employer is financially stable and can pay you the "prevailing wage".

An employer can also petition you for a greencard if you are a college graduate OR skilled worker (meaning you work at a type of job which the U.S. government believes takes a least two years training or experience), such as auto mechanic, specialty cook, office manager.

The bottom line is your husband was not legally entitled to his greencard and citizenship, and is not lawfully able to petition you for a "clean" greencard. You should seek the advice of a reputable attorney, to determine if there are other legitimate ways for you to immigrate.

Michael J. Gurfinkel has been a licensed attorney in California for 21 years. He has always excelled in school: Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California. He is also an active member of the State Bar of California, the American Immigration Lawyers Association, and the Immigration Section of the Los Angeles County Bar Association. All immigration services are provided by an active member of the State Bar of California and/or by a person under the supervision of an active member of the State Bar.

His offices are located at 219 North Brand Boulevard, Glendale, California, 91203 Telephone: (818) 543-5800. His Makati office is located at Heart Tower, Unit 701, 108 Valero Street, Salcedo Village, Makati, Philippines; Telephone: 894-0258 or 894-0239. For more information about the Law Offices of Michael J. Gurfinkel, and to read previously published articles, please visit our website at www.gurfinkel.com

(This is for informational purposes only, and reflects the firm’s opinions and views on general issues. Each case is different and results may depend on the facts of a particular case. No prediction, warranty or guarantee can be made about the results of any case. Should you need or want legal advice, you should consult with and retain counsel of your own choice.)