Sometimes, you must admit fraud to get a green card

Dear Atty. Gurfinkel:

I entered the US in 2005 under a different name on my passport and visitor’s visa. I recently married a US citizen, who petitioned me. This was the first time that any petition had ever been filed for either me or my family.

When I filed for adjustment of status (Form I-485), and the form asked for how I “entered” the US, I was told I should put down I entered without inspection, or EWI.

I just received a denial of my adjustment, where the USCIS stated that because I entered without inspection and did not have the benefit of Section 245(i), I am not eligible to adjust status, or get a green card, in the US.  Now, I’m being told I have to go back to Manila to be processed for my green card, but I’m scared. Is there any hope?                                                       Very truly yours,                                             

R.P.

Dear R.P.:

Ordinarily, for a person to adjust status, or get a green card, in the US, he or she must prove they were “inspected” by an immigration officer at the airport. This means the person presented his or her passport and visa, and the immigration officer stamped them in. The only way a person who entered the US without inspection can get a green card in the US is if he or she can avail the benefit of Section 245(i). (That law allowed people who entered the US without inspection to get a green card in the US provided, among other things, that they were petitioned before April 30, 2001. Recently, USCIS considered adjustment for EWI relatives of members of the military, called parole in place.  But this would not apply to you.)

In your case, you apparently were not petitioned before April 30, 2001, and do not have the benefit of Section 245(i).  Therefore, if you file for adjustment and indicate you entered the US without inspection, it would almost guarantee your adjustment application will be denied.

I’ve come across several cases where the person entered the US under an assumed name, but did not have the benefit of Section 245(i), but was told to put down he or she entered the US without inspection. 

The better approach is to admit to the fraud (of an assumed name entry), and file for a fraud waiver.  The reason is that there is almost no chance for a person to adjust status in the US if he or she entered without inspection and does not have the benefit of Section 245(i). 

However, if a person entered under an assumed name, it is still considered that he or she has been “inspected,” and at least the person would have the chance or opportunity to apply for a fraud waiver, where they ask for “forgiveness” based on the “extreme hardship” their citizen spouse would suffer.

I know it is a difficult concept to accept that admitting fraud could be more beneficial than lying. But even if a person lies about entering the US without inspection, they could still be questioned as to which border they crossed (Canada or Mexico)? How did they get into Canada or Mexico?  Where is their Mexican or Canadian visa? Where at the border did they cross? Did they climb over a fence, or were they in the trunk of a car? As you see, you almost have to be a FAMAS awardee actor to answer all of these questions about how you crossed the border. And it will do no good, because if you do not have the benefit of Section 245(i), and entered without inspection, you will be denied.

In fact, my office has handled numerous cases involving assumed name entries, where the client was tempted to put down they entered without inspection.  We pointed out it would be a guaranteed denial, and we filed, instead, a fraud waiver, which was granted. This does not mean we can warrant or guarantee approval in all cases. It depends on the extreme hardship suffered by your spouse.

However, if you entered the US under an assumed name, and are married to a US citizen, definitely seek the advice of an attorney who can analyze your situation and determine the best course of action for you to obtain a green card in the US.

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