Dear Atty. Lou,
My parents were separated when I was ten years old. At that time, my father left for the United States and divorced my mother. After a few years, my mother was petitioned by her long time friend in the US. Their relationship was not real and I know this man was only helping my mother go to the US. The petition was approved by the immigration service.
When my Mom was interviewed at the US Embassy, it was discovered that the marriage to the US citizen is a marriage fraud. My mother was denied the immigrant visa because of this finding. Recently, my Mom applied for a tourist visa. Her application was also denied and she was told that she will not be able to receive a visa because of the marriage fraud.
I am now a US citizen having been petitioned three years ago by my US citizen spouse. In a couple of months, I will be delivering our baby. I desperately need my mother during this critical period of my life. Her denial of a tourist visa devastated me. Should I just file for a petition for my mother? Will she be able to get an immigrant visa despite her prior denials? Please help.
Dear Daughter RJ,
I understand your situation and your desire to have your mother with you when you deliver your baby. She will definitely be a good support to you especially in babysitting your child. Unfortunately, the immigration case of your mother is seriously flawed with prior findings of fraud. This means that there are bars to her coming to the United States
There are different basis for fraud and misrepresentation depending on the circumstances of each case. For misrepresentation of identity or providing false information, there may be waivers that are available to overcome the ground for inadmissibility and allow the applicant to receive a visa. The approval of a waiver is very discretionary on the part of the immigration officer after reviewing the evidence submitted to support the application. Once this waiver is approved, the applicant may receive the visa.
In the case of your mother, she is put in a dilemma. Assuming that the fraud is not “marriage fraud”, children of the applicant may not qualify as relatives for purposes of the waiver. This means that her waiver will be accepted but will be denied because under the law only spouse and parents may be qualifying relatives for a waiver.
Your mother’s case involves a finding of “marriage fraud”. As a result of this, the applicant is barred from receiving future nonimmigrant or immigrant visas. Unlike other types of fraud, there is no waiver of marriage fraud under Section 204(c) of the Immigration and Nationality Act. This is a severe penalty for those who are found to have engaged in marriage fraud. Unfortunately, your mom is barred permanently from receiving a future visa and therefore, may not come to the US to visit you or live here with you.
(Lourdes Santos Tancinco Esq .is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Suite 818, San Francisco CA 94102 and may be reached at 415 397 0808, email at firstname.lastname@example.org. The content provided in this column is solely for informational purposes only and do not create a lawyer-client relationship. It should not be relied as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You may submit questions to email@example.com)