Preventing the Implications of

MISREPRESENTATION

LAURA F. BACHMAN YWCA TULSA

Jack and Jill

Jack Martinez, a Mexican citizen, entered on a B-2 with his family when he was 5 and overstayed. He has had DACA since 2013. Jack met Jill Martin their last year at University of Tulsa. Jack and Jill moved in together. They bought a townhouse & Prius together, adopted a puppy, joined the garden co-op. Soon after they moved in together, they welcomed their twin babies, Juan and Juanita. Sadly, in 2016, after a heated discussion over whether Hilary or Bernie should take the primary, they split up. A few days after January 20, 2017, Jack marries Jane, a woman he met at work in November 2016. Jack and Jane come to see you about how he can obtain permanent residence. Jack tells you this is his first marriage.

WHAT YOU ASK IS AS IMPORTANT AS HOW YOU ASK IT

1. What types of questions could lead you to assess whether Jack has been married before?

1. Do you have any children? 2. Is Jane the mother of the children? 3. Did you and the mother of the children live together? If so, in what state?

4. Have you worked in the US? If so, have your filed tax returns? Jointly?

5. Did your parents (or family) consider you and Jill married?

2. If you do not have one already, consider creating a general initial consultation questionnaire (intake form).

Jack and Jane

After meeting with Jack and Jane, you make a legal determination that he and Jill meet the common law marriage requirements in OK. 1. What is your advice to Jack and Jane with regard to AOS

based on marriage to Jane? 1. What additional information do you need to fully advise

Jack and Jane?

2. What is your advice to Jack regarding renewal of his DACA?

Jack and Jill – This just got Real

Jack and Jill reunite for the sake of Juan and Juanita. Jack and Jill come to your office requesting information about AOS for Jack based on his common law marriage to Jill. Jack takes you aside before entering your office and lets you know Jill does not know about Jane and instructs you not to share that information with Jill. 1. Do you maintain Jack’s confidentiality with regard to his marriage to Jane? 2. What is your obligation to Jane? 3. What is your advice to Jack and Jill regarding the I-130/AOS? 4. If you decide to file the I-130/I-485, what affect with the information on the

DACA application have on AOS?

MISREPRESENTATION & INADMISSIBILITY

212(a)(6)(C)(i) Any noncitizen who, !by fraud or !willfully misrepresenting a material fact, !seeks to procure/has sought to procure/has procured a visa,

other documentation, or admission into the United States or

!other benefit provided under this Act is inadmissible.

Scenario Elements Required for a Finding of …Willful

Misrep. Fraud

The person procured, or sought to procure, a benefit under U.S. immigration laws.

x x

The person made a false representation. x x

The false representation was willfully made. x x

The false representation was material.  x xThe false representation was made to a U.S. government official. x x

When making the false representation, the person intended to deceive a U.S. government official authorized to act upon the request.

N/A x

The U.S. government official believed and acted upon the false representation.

N/Ax

(N/A if fraud “seeking to procure” benefit)

Marriage Fraud

In addition to immigration implication of not benefiting from any future immigration petition – ICE: “Marriage fraud is a threat to U.S. national security, financial institutions and the integrity of the immigration system... An individual will be charged with marriage fraud if they entered into a marriage for the purpose of evading U.S. immigration law. This felony offense carries a prison sentence of up to five years and a fine of up to $250,000, and applies to both foreign nationals and U.S. citizens who perpetrate this crime.”

Inadmissibility Waivers Fraud or Willful Misrepresentation

212(i) • Applicants for AOS or Immigrant Visas & K or V visas Applicants -FORM I-601

244(c) • TPS Applicants - FORM I-601

207 • Refugee Applicants – FORM I-602

209 • Refugee/Asylee Adjustment Applicants – FORM I-602

212(d)(13) • T-Visa Applicants – FORM I-192

212(d)(14) • U-Visa Applicants – FORM I-192

212(d)(3) • All other Nonimmigrant Visa Applicants – FORM I-192