OPINION | US VISA-IMMIGRATION CORNER – Saving your assumed-name passport could actually help

Dear Attorney Gurfinkel:

I entered the US under an assumed name on a passport. (The passport had a visitor’s visa under someone else’s name, with a look-alike picture of me). As soon as I arrived in the US, I mailed the passport back to the agency in the Philippines where, I suppose, they will let another look-alike person enter the US using that passport. I did not make a copy of the passport, and I do not remember the name I entered on it.

I am now married to a US citizen who wants to petition me so I can get my green card and we can live together in the US. Would this be possible, even though I entered the US under an assumed name?

Very truly yours,

RD

Dear RD:

Believe it or not, saving an assumed name passport could actually be helpful in connection with a person’s ability to obtain a green card in the US. Without that passport, your chances of getting a green card are much lower, even if you are petitioned by your US citizen spouse.

By law, for a person to adjust status in the US, they must prove they were “inspected and admitted or paroled into the United States.” The key, or magic, word in the law is proving you were “inspected,” meaning you presented yourself to an immigration officer at the port of entry (airport or border), who inspected your visa or other documents and allowed you to enter the US. If a person has no proof of being “inspected,” they would be considered to have “entered without inspection” (EWI).  There, the only way an EWI can adjust status in the US, is if they have the benefit of Section 245(i), which expired in April 2001.

Entering the US under an assumed name is considered fraud, but it is still considered proof of “inspection,” enabling the person to file for adjustment of status in the US. They could cure the fraud by filing a fraud waiver, based on extreme hardship to their US citizen spouse. It would be beneficial to admit having entered the US through fraud to establish they were inspected. Then, they filed a fraud waiver. (Note: this does not apply if a person used a US passport to enter the US, as US citizens are not “inspected.” Also, if a person used a US passport, they would be blacklisted for life, with no waivers available.)

In your case, if you have no proof or evidence of having been “inspected,” US Citizenship and Immigration Services (USCIS) may consider you to be an EWI and you may not be eligible to file for adjustment of status. There, you would have to go back to the Philippines and process your visa at the US embassy in Manila. But you would be subject to the 10-year bar, and would not be eligible for a “provisional waiver.” This is because a provisional waiver is available only if the sole immigration violation is having overstayed. A person is not eligible for a provisional waiver if they have committed fraud. In addition, if you must file a fraud waiver in the Philippines, it could take a year or more to process that waiver and if it is denied, you may not return to the US.

If any person entered the US under an assumed name on a passport and is now married to a US citizen, I would strongly suggest they consult with an attorney who can evaluate their case, and see if there is hope in connection with filing for adjustment of status by admitting the fraud to prove inspection, along with a fraud waiver.

*      *      *

WEBSITE: www.gurfinkel.com

Follow us on Facebook.com/GurfinkelLaw, YouTube: US Immigration TV and Instagram.com/gurfinkellaw

Four offices to serve you: Los Angeles; San Francisco; New York: Toll free number: 1-866-GURFINKEL (1-866-487-3465); Philippines: +632 88940258 or +632 88940239