IMMIGRATION FRAUD WAIVERS
Any alien who gained entry to the U.S. by Misrepresentation or Fraud of material fact is inadmissible and deportable. However, immigration fraud waivers are available to individuals in deportation proceedings.
Fraud is a false representation of a material fact with knowledge of its falsity and with intent to deceive a consular or immigration officer, who believed and acted upon this false representation.
Misrepresentation is an assertion which is contrary to the facts. INA 212(a)(6)(C)(i) penalizes willful and false misrepresentation of a material fact. Unlike fraud, material misrepresentation does not require intent to deceive. Since proof of an alien’s intent to deceive would be hard to come by, most findings of inadmissibility under INA 212(a)(6)(C)(i) often involve material misrepresentation rather than fraud.
Misrepresentation requires an alien’s affirmative act. Silence or failure to volunteer information does not in itself constitute misrepresentation under INA 212(a)(6)(C)(i). Misrepresentation must be willful, which means that it must have been done knowingly and intentionally, and not made accidentally, inadvertently, or in an honest belief that the facts are otherwise. Misrepresentation is willful if the alien was fully aware of the nature of the information sought and knowingly, intentionally, and deliberately made an untrue statement.
Inadmissibility under INA 212(a)(6)(C)(i) is a lifetime bar.
Waiver of Inadmissibility for an Immigrant Visa due to Fraud or Misrepresentation
There are two sections of the law which allow a foreign national to apply for a waiver of inadmissibility where he/she is ultimately applying for an immigrant visa or permanent residence (green card) §212 (i) waiver and § 237(a)(1)(H) waiver.
Waiver Under INA Section 237(a)(1)(H):
This waiver is available, if the alien:
1. Is the spouse, parent, son, or daughter of a U.S. citizen or a lawful permanent resident (at the time of waiver application); and
2. was in possession of an immigrant visa or equivalent document (not available to nonimmigrants and EWIs) and
3. was otherwise admissible except for a direct result of the fraud or misrepresentation.
Thus, INA § 237(a)(1)(H) is more inclusive than the INA § 212(i) waiver.
Favorable Exercise of Discretion
Some of the favorable factors (equities) to be considered, although the waiver section does not specify such equities, are:
- family ties of the alien in the United States,
- length of residence of the alien in the United States;
- hardship to the alien and/or the family in case of removal/deportation;
- alien’s employment history;
- property or business ties;
- service and value of the alien to the American community; and
- alien’s good moral character.
The adverse or negative factors that may be considered in adjudicating the waiver application are
- the nature and underlying circumstances of the fraud or misrepresentation;
- the nature and time of the alien’s criminal arrest(s)/conviction(s); and
- bad moral character or undesirability of the alien as a lawful permanent resident.
The individual has to be well-prepared to represent his or her case in front of a judge or adjudicator. Hiring an experienced attorney is essential to defense to the grounds of inadmissibility.
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