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Can an asylee-permanent resident mention kids to the USCIS now?

Through a partnership with the New York Daily News, people with questions about U.S. immigration law can write in to Allan Wernick, director of the University of New York's Citizenship Now! project. While no legal advice is provided, many of the questions are similar to those immigration lawyers hear every day from our clients.

One recent question caught our attention because it involves a mistake that could have sharply reduced or destroyed the writer's chance to bring her children to the U.S. through family immigration. It could also have gotten her in serious legal trouble -- possibly including deportation.

The woman who wrote in came to the U.S. through asylum and, after living in the U.S. for a while, became a lawful permanent resident. During those processes, however, she never mentioned that she has children. It doesn't seem she meant to hide anything; she simply didn't think the question of her children coming to the U.S. would ever come up.

Now she is applying for naturalization, and she has changed her mind about the possibility of having her children join her. As a U.S. citizen, she would have a fairly good chance of successfully sponsoring them to come here.

Can she now list her children on her naturalization application, when she has never mentioned them before?

The likely answer is yes. It depends on whether the USCIS considers the omission critically important -- what the agency calls a “material misstatement of fact.” For example, if the USCIS’s knowledge that she had children would have resulted in the denial of her asylum application, her failure to mention them would be considered a material misstatement of fact.

It’s quite unlikely that her grant of asylum depended upon her having no children. So, even though the USCIS might not be pleased by the misstatement, it probably won’t be an issue.

Being found to have made a material misstatement on either her asylum or green card application, however, could do more than end her chance to sponsor her children for immigration. The USCIS could reopen either or both applications and deny them, or it could refer the case for criminal prosecution for immigration fraud.

You should always be truthful on immigration forms. That said, if you’re not sure whether you’ve made a material misstatement of fact, you should contact an immigration law attorney. All such consultations are completely confidential.

Source: New York Daily News, "U.S. citizen and Russian fiancee worry about keeping her immigration status while traveling around the world," Allan Wernick, University of New York's Citizenship Now! project, Nov. 4, 2013

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