How To Apply For The Fraud Waiver | 212i Waiver For Misrepresentation
If the government has determined that a non-US citizen has committed fraud or willful misrepresentation in connection with an immigration benefit, he or she will be determined to be inadmissible to the United States. This finding can have serious implications and ramifications for a foreign national including the denial of admission and potential removal from the United States. A “benefit” is interpreted to include the procurement or attempt to seek an immigrant or nonimmigrant visa; admission into the United States; and a whole slew of other documents or applications including but not limited to US passports; reentry permits; border crossing cards; employment authorization; parole; adjustment of status; as well as extensions and changes of stay. (There are more than what is listed here.)
What is Fraud and Willful Misrepresentation?
It is not enough for the government to allege fraud or willful misrepresentation. As these are terms of art, the analysis is quite technical with separate and distinct requirements. In general, a person alleged to have committed immigration fraud must have the intent to deceive, whereas willful misrepresentation does not necessarily require a such a finding. Both generally require a false representation that was material and willfully made to a US government official in connection with a benefit under US immigration laws. In some cases, some elements may be present but not necessarily all, thereby giving rise to a defense or argument that the alleged found is insufficient to underpin a charge of inadmissibility. For example, if the false representation was not made to a U.S. government official, there is a deficiency; similarly, if the false statement was not “material,” in other words, it was not of any consequence, it does not satisfy the legal standard.
What Does The Waiver Say?
Under INA 212(i), the government provides that the fraud/misrepresentation ground of inadmissibility may be waived under certain conditions. The statute states:
The Attorney General may, in the discretion of the Attorney General, waive the application of clause (i) of subsection (a)(6)(C) of this section in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien or, in the case of a VAWA self-petitioner, the alien demonstrates extreme hardship to the alien or the alien’s United States citizen, lawful permanent resident, or qualified alien parent or child.
Must Have A “Qualifying Relative” and Warrant A Favorable Exercise of Discretion
In essence, the applicant must show 1) extreme hardship to a statutorily listed qualifying relative and 2) that a favorable exercise of discretion is warranted. For purposes of this waiver, only US Citizen or Lawful Permanent Resident spouses, fiancés, and parents are eligible as “Qualifying Relatives.” Importantly, children are not listed as qualifying relatives, so evidence of direct hardship to them will not necessarily be considered as part of the analysis. (However, VAWA applicants are entitled to certain exceptions.) In determining whether discretion is appropriate, the examiner will evaluate whether the “positive equities” of a case outweigh or overcome the negative factors. In the case of fraud/misrepresentation waivers, the underlying fraud/misrepresentation is the first negative factor that may be considered. Additionally, according to the USCIS policy manual, an examiner may consider:
- The facts and circumstances surrounding the fraud or willful misrepresentation;
- The reasons and motivations of the applicant when the fraud or willful misrepresentation was committed;
- Age or mental capacity of the applicant when the fraud was committed;
- Whether the applicant has engaged in a pattern of fraud or whether it was merely an isolated act of misrepresentation; and
- The nature of the proceedings in which the applicant committed the fraud or willful misrepresentation.
Against this, the applicant would want to expound upon the humanitarian considerations, such as family unity and potential harm to the qualifying relative, whether it be in the form of financial distress, psychological trauma, adverse impact of health, etc. The challenge in getting waivers approved is demonstrating that the extreme hardship rises above a level that families typically undergo in cases of separation. In other words, the applicant must craft a compelling argument that shows how a denial of the waiver will result in hardship that involves more than the “common consequences” of denial (the common consequences including family separation; economic detriment; the difficulty of readjustment in a new country; and the availability and quality of education, health care, and employment.)
Immigration Fraud Waiver Attorneys
Waiver practice is extremely complicated. There are a myriad of obscure rules, regulations, and exceptions that can affect your case in positive or negative ways. While our firm handles a wide range of immigration matters, one of our core focuses is waiver practice, particularly fraud and willful misrepresentation waivers. We have the experience, expertise, and knowledge to help you achieve a favorable outcome. For help, give us a call to arrange an in-depth consultation.