Can I apply for a green card if I was refused U.S. entry but came back with fake documents?

Use of false documents, especially a U.S. passport, presents many possible barriers to adjustment of status.

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Question

I am from Brazil. I tried coming to the U.S. to visit my girlfriend two years ago, but when I arrived at the airport the immigration officer refused to let me in, so I had to go back. Six months ago, I came back, this time with a fake passport. It worked. Now my girlfriend and I got married and I want to apply for a green card with my real identity. Can I?

Answer

Whether you can apply for a green card will depend on a complicated set of factors, to be considered step-by-step.

Step 1: What kind of passport did you use to enter the United States? If it was an American passport (meaning that you entered the country claiming to be a U.S. citizen), then you will not be eligible for a green card. On one hand, if you cannot prove that you were admitted to the U.S., then you cannot apply for a green card from within the country. On the other hand, if the government finds out that you were ever admitted by falsely claiming to be a U.S. citizen, then not only will you become ineligible for a green card, but you will also be removed from the U.S. never to be let back in.

Step 2 (assuming you used a foreign passport): What exactly happened during your previous attempt to enter the U.S., when you were refused admission? If the immigration officers simply allowed you to withdraw your application for admission and to return to Brazil as if nothing had happened, then you can move on to Step 3 below, right away.

However, if you were ordered removed (and given a Form I-860, Notice and Order of Expedited Removal), then this means that you were not supposed to return to the U.S. for another three years without first obtaining a special permission (Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, available from U.S. Citizenship and Immigration Services). As a result, you might need to return to Brazil to process your green card (and permission) application(s) at a U.S. consulate — though, this time, you would probably need to wait at least ten years.

Moreover, even assuming you managed somehow to make a compelling argument that you should be allowed to apply for Form I-212 without returning to Brazil, you might still need (perhaps depending on the state or “jurisdiction” where you live) to prove that your fraudulent entry was not an “illegal reentry” under the law. This is important because an “illegal reentry” would mean that your previous removal order could be reinstated (which would disqualify you from applying for the green card from within the U.S. and would increase the time you might need to wait before reapplying for admission).

Step 3: Finally, because you obtained admission to the U.S. by fraud, your eligibility for the green card would also depend on whether you can qualify for approval of a Form I-601, Application for Waiver of Grounds of Inadmissibility.

Consult with an experienced immigration attorney for help navigating this very complex area of the law.

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