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June 16, 2008: Inadmissibility, Waivers, and Adjustment of Status

Inadmissibility, Waivers and Adjustment of Status

I have been a legal resident for the past 16 years. My green card has expired and after I renew my green card, I want to apply for U.S. citizenship. Also my fiancé is illegal. He entered the U.S. with a false visa with someone else’s name etc. I am pregnant with his daughter and my due date is September 20, 2008. Is it possible to apply for a green card for him? Will I need to file a waiver? Or does he have to go back to Brazil? What are my steps? Thank you.
— Monaliza

You are welcome.

You raise several important issues. First, if you are otherwise eligible, you should immediately apply for United States citizenship by filing Form N-400, Application for Naturalization. It is important to realize that becoming a naturalized U.S. citizen does not happen over night. Rather, it may take a year or longer (depending upon where you live and the processing times when you file) before you are scheduled for an initial interview.

Second, since your fiancé is already in the United States, the only form you can file for him is a Form I-130, Petition for Alien Relative. This form requires that a legal marriage have occurred. So, you must get married to your fiancé. Once you become a citizen and are married, then you would be eligible to file an I-130 petition on your husband’s behalf as an immediate relative of a United States citizen. Even though your fiancé entered the United States with a fraudulent visa and passport, he is immediately eligible to apply for lawful permanent resident status because all such applicants must prove their inspection at entry into the United States by an immigration officer at a designated port of entry. However, as a result of his manner of entry, your fiancé may be deemed “inadmissible” to the United States pursuant to Immigration and Nationality Act section 212(a)(6)(C)(i). In that case, your fiancé may be eligible for a 212(i) fraud waiver that would “waive” his inadmissibility to the United States and allow him to adjust his status to lawful permanent resident. It is extremely important for the waiver to be properly prepared with all of the necessary supporting documentation and evidence and that it is properly filed with the United States Citizenship and Immigration Service (USCIS). As such, you should consult with an experienced immigration attorney who has a lot of knowledge of and skill in preparing and filing this waiver.

Michael Shane and Evan Shane, Immigration Attorneys

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