Waivers for Fraud or Willful Misrepresentation of a Material Fact to Obtain an Immigration Benefit

 

Introduction: Waivers for Inadmissibility Stemming from Fraud or Willful Misrepresentation of a Material Fact

waivers for fraud or willful misrepresentationIf an alien is caught using fraud or willful misrepresentation of a material fact to procure an immigration benefit, he or she will be deemed inadmissible to the United States. This ground of inadmissibility is particularly severe because it attaches to an alien for life. The passage of time will not cure inadmissibility for fraud or willful misrepresentation of a material fact. Furthermore, because of the wording of the statute, it is quite possible for a person to find that he or she is inadmissible because of fraud or misrepresentation of a material fact, and not understand immediately why.

In very limited circumstances, there are waivers available for inadmissibility stemming from fraud or willful misrepresentation of a material fact. This article will explain the reasons why these waivers exist, the scenarios in which an alien inadmissible for fraud or misrepresentation may be able to obtain a waiver, and general guidance on the waiver adjudication process.

Statute Describing Inadmissibility for Fraud or Misrepresentation that can be Waived

The statute for the inadmissibility ground for fraud or willful misrepresentation is found in section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA). The statute states:

Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

In order for conduct to meet the standard required for inadmissibility to attach under section 212(a)(6)(C)(i), the conduct must meet the following conditions:

  1. The individual committing misrepresentation must not have been a United States citizen.
  2. The conduct must have involved fraud or misrepresentation.
  3. The misrepresentation must have been willful.
  4. The misrepresentation must have been of a material fact.
  5. The fraud or misrepresentation must have been committed in the context of procuring a benefit under the Immigration and Nationality Act (INA).

It is important to remember that this particular inadmissibility ground only applies to fraud or willful misrepresentation of a material fact was perpetrated in order to procure an immigration benefit. Thus, fraud or willful misrepresentation that does not have to do with obtaining an immigration benefit does not trigger this inadmissibility ground.1

Other Types of Immigration Fraud that cannot be Waived

There are certain types of immigration fraud described in the INA that cannot be waived under the statutes that we are about to discuss.

Section 212(a)(6)(C)(ii) of the INA contains the inadmissibility ground for an alien who misrepresents him or herself as a U.S. citizen. There are limited grounds under which a waiver is available for this misrepresentation, but they are not related to the waiver of inadmissibility for fraud or willful misrepresentation of a material fact that we will discuss.2

Furthermore, the waivers that we are about to discuss to not address inadmissibility under section 212(a)(6)(F), which renders an alien inadmissible if he or she becomes subject to a final order of removal for document fraud in violation of section 274C.3 Section 274C(a)(1)-(6) states that it is unlawful for any person or entity knowingly:

  • (1) to forge, counterfeit, alter, or falsely make any document for the purpose of satisfying a requirement of this Act or to obtain a benefit under this Act,
  • (2) to use, attempt to use, possess, obtain, accept, or receive or to provide any forged, counterfeit, altered, or falsely made document in order to satisfy any requirement of this Act or to obtain a benefit under this Act,
  • (3) to use or attempt to use or to provide or attempt to provide any document lawfully issued to or with respect to a person other than the possessor (including a deceased individual) for the purpose of satisfying a requirement of this Act or obtaining a benefit under this Act,
  • (4) to accept or receive or to provide any document lawfully issued to or with respect to a person other than the possessor (including a deceased individual) for the purpose of complying with section 274A(b) or obtaining a benefit under this Act,
  • (5) to prepare, file, or assist another in preparing or filing, any application for benefits under this Act, or any document required under this Act, or any document submitted in connection with such application or document, with knowledge or in reckless disregard of the fact that such application or document was falsely made or, in whole or in part, does not relate to the person on whose behalf it was or is being submitted, or
  • (6) (A) to present before boarding a common carrier for the purpose of coming to the United States a document which relates to the alien's eligibility to enter the United States, and (B) to fail to present such document to an immigration officer upon arrival at a United States port of entry.

The only ground of inadmissibility under section 274C that may be waived is that found in (a)(6), and that is only in the context of a successful asylum or withholding of removal application.4

In short, it is important to remember that the waivers we will discuss in the following sections only deal with inadmissibility under section 212(a)(6)(C)(i) of the INA. The waivers do not cover other types of fraud or misrepresentation, most notably the false claim of U.S. citizenship ground of inadmissibility found in section 212(a)(6)(C)(ii).

Why is there a Waiver of the Fraud or Willful Misrepresentation of a Material Fact Inadmissibility Ground?

Congress recognized the severe penalty for being found to be inadmissible for fraud or willful misrepresentation of a material fact, and consequently carved out very limited waivers of inadmissibility for section 212(a)(6)(C)(i). The two waivers are set forth in section 212(i) [for immigrant visa-related applications- and 212(d)(3) [for nonimmigrant visa applications].

The United States Citizenship and Immigration Services (USCIS) Policy Manual lists reasons why the waiver of inadmissibility for fraud or willful misrepresentation for immigrant visa applicants [under 212(i)] exists:

  • Provide humanitarian relief and promote family unity;
  • Ensure the applicant merits favorable discretion based on positive factors outweighing the applicant's fraud or willful misrepresentation and any other negative factors; and
  • Allow the applicant to overcome the inadmissibility or removability ground.5

Immigrant Visa-Related Waiver of Inadmissibility for Fraud or Willful Misrepresentation of a Material Fact

INA Section 212(i) — For Immigrant Visa-Related Applications

The waiver of inadmissibility for fraud or misrepresentation of a material fact for immigrant visa-related applications is found in section 212(i) of the INA. Section 212(i) states:

The Attorney General may, in the discretion of the Attorney General, waive the application of clause (i) of subsection (a)(6)(C) in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an 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 permanent 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.

The 212(i) waiver of inadmissibility for fraud or willful misrepresentation of a material fact is only available where an applicant demonstrates that a U.S. citizen or lawful permanent resident spouse or parent would face “extreme hardship” if he or she is removed from or denied a visa to enter the United States. It is important to note that “extreme hardship” to the inadmissible alien's children does not qualify for a 212(i) waiver. However, hardship involving the children as it pertains to a U.S. citizen or lawful permanent resident spouse or parent may be considered in that context. Extreme hardship to the applicant will also not be considered.

However, in a Violence Against Women Act (VAWA) case where the applicant demonstrates that he or she was subject to battery or extreme cruelty by a U.S. citizen spouse, extreme hardship to the applicant or the applicant's children may be considered.

Classes of Applicants Eligible to Apply for 212(i) Waiver

The USCIS policy manual lists the classes of applicants eligible to apply for 212(i) waivers:6

  • An applicant seeking an immigrant visa or adjustment of status based on a family-based petition or as a VAWA self-petitioner;
  • An applicant seeking an immigrant visa or adjustment of status based on an employment-based petition;
  • An applicant seeking a nonimmigrant K visa;
  • An applicant seeking a nonimmigrant V visa.

In the case of an applicant seeking a nonimmigrant K visa, he or she may use extreme hardship to a U.S. citizen fiancée to meet the standard for a section 212(i) waiver. However, if an applicant for a K-1 (fiancée of a U.S. citizen) or K-2 (child of K-1 visa beneficiary) visa is granted a 212(i) waiver, the waiver will be conditional until he or she marries the U.S. citizen spouse.7 If the marriage does not occur, the former applicant will again be inadmissible for fraud or willful misrepresentation.8

A 212(i) waiver will only be valid indefinitely for a conditional permanent resident when the conditions are removed from his or her permanent resident status.9 If conditional permanent resident status is terminated before that point, the waiver will no longer be valid.

The 212(i) waiver is restricted to persons seeking immigrant visas, with the exception of applicants for K visas and V visas. In order to apply for a waiver under 212(i), the applicant must file a Form I-601, Application for Waiver of Grounds of Inadmissibility. The Form I-601 must be filed in the United States. The only exceptions to this rule are if the applicant resides in Cuba or at an international USCIS office abroad if there are “exceptional and compelling circumstances that require the immediate filing.10

Demonstrating “Extreme Hardship”

“Extreme hardship” is a legal concept that takes into account numerous factors that derive from the facts of a given case. The most important administrative precedent pertaining to “extreme hardship” in the section 212(i) context is the Board of Immigration Appeals' (BIA's) 1999 decision, Matter of Cervantes.11 In Matter of Cervantes, the BIA created a non-exhaustive list of factors that immigration adjudicators should consider in determining whether extreme hardship exists in a given case:

  • Presence of qualifying relative's family ties to the United States;
  • qualifying relative's ties outside of the United States;
  • condition(s) in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative's ties to those countries;
  • financial impact of departure on the qualifying relative;
  • significant health conditions of the qualifying relative, especially when tied to the unsuitability of medical care in the country to which the qualifying relative would relocate.

To learn more about extreme hardship in general, please follow this link. To learn about the precedents regarding extreme hardship adjudications established by Matter of Cervantes, please follow this link.

If the waiver applicant is a VAWA self-petitioner, he or she may rely upon extreme hardship that would be incurred by him or herself or his or her children as well. Furthermore, extreme hardship factors particular to his or her victimization may also be considered. These factors12 include:

  1. The nature and extend of the physical or psychological consequences of abuse;
  2. The impact of loss of access to the United States courts and criminal justice system (including, but not limited to, the ability to obtain and enforce orders of protection, criminal investigations and prosecutions, and family law proceedings or court orders regarding child support, maintenance, child custody, and visitation);
  3. The likelihood that the batterer's family, friends, or others acting on behalf of the batterer in the home country would physically or psychologically harm the applicant or the applicant's child(ren);
  4. The applicant's needs and/or needs of the applicant's child(ren) for social, medical, mental health or other supportive services for victims of domestic violence that are unavailable or not reasonably accessible in the home country;
  5. The existence of laws and social practices in the home country that punish the applicant or the applicant's child(ren) because they have been victims of domestic violence or have taken steps to leave an abusive household; and
  6. The abuser's ability to travel to the home country and the ability and willingness of authorities in the home country to protect the applicant and/or the applicant's children from future abuse.

It is important to remember that finding extreme hardship is discretionary. A situation could meet many of the factors described in the two above lists, but still be denied a waiver based upon extreme hardship on discretionary grounds. For example, among other factors, the nature and severity of the underlying fraud or willful misrepresentation may be considered in determining whether granting a waiver is appropriate.13 When determining whether a 212(i) waiver is appropriate, adjudicators will consider all of the factors that weigh in favor of granting a waiver against all of the negative factors.

Waiver in Immigration Court Proceedings

An alien may be able to adjust or re-adjust status by applying for a 212(i) waiver as a defense in removal proceedings.

In this case, a Form I-601 with fee must be filed with the Texas Service Center for processing of biometric and biographic information. Supporting documents for the applicant's application, along with the Form I-601 filing receipt, should be filed with the Immigration Court for adjudication. The applicant and his or her qualifying relative(s) must be prepared to testify in accordance with their already submitted affidavits or declarations. In addition, they may call other witnesses to testify regarding the applicant's good moral character. If evidence regarding medical or psychological hardship was included with the supporting documents, the applicant may wish to call as witness the treating physician or psychiatrist.

Administrative and Judicial Review

An applicant who has a 212(i) waiver request that is denied from an overseas USCIS office or a local district USCIS office may appeal to the Administrative Appeals Office (AAO). In order to do this, the applicant must file a Form I-290B with the USCIS office that issued the unfavorable decision.14

If an applicant's request for a 212(i) waiver is denied in Immigration Court, he or she may appeal to the BIA. The BIA is required to give deference to the Immigration Judge's factual findings. However, it may review the exercise of discretion in denying the 212(i) waiver. Because there are many factors that may be taken into account in the exercise of unfavorable discretion for a 212(i) waiver, the BIA does have latitude in reviewing an unfavorable finding.

Special Case: Adjustment of Status for Refugees and Asylees

An asylee or refugee seeking adjustment of status may apply for a waiver of inadmissibility for fraud or willful misrepresentation of a material fact under section 209 of the INA. The waiver may be approved if it would serve humanitarian purposes, family unity, or the public interest.15 To learn about adjustment of status as an asylee, please follow this link.

The waiver application must be filed on the Form I-602.

Nonimmigrant Waivers (Other than K and V)

The USCIS Policy Manual lists the cases in which a nonimmigrant may apply for a waiver from fraud or willful misrepresentation of a material fact.16

Refugees

Refugees who are inadmissible for fraud or willful misrepresentation of a material facto may apply for a waiver under section 207 of the INA. The waiver may be approved if it would serve humanitarian purposes, family unity, or the public interest.

A refugee applicant must file a waiver application on the Form I-602.

Legalization and Special Agricultural Workers (SAW) Applicants

Legalization applicants may apply for a waiver of inadmissibility for fraud or willful misrepresentation of a material fact under section 245A of the INA. SAW applicants may apply for a waiver under section 210. The waiver may be approved if it would serve humanitarian purposes, family unity, or the public interest.

Both legalization and SAW applicants must file a waiver application on the Form I-690.

All other Nonimmigrants (Except K, V, T, and U)

Section 212(d)(3) of the INA authorizes the Attorney General to allow an applicant who is inadmissible for fraud or willful misrepresentation of a material fact to be admitted to the United States temporarily despite the inadmissibility. Conditions may be prescribed on the applicant's admission to control and regulate the terms of his or her admission.

In order to be admitted as a nonimmigrant to be admitted despite inadmissibility for fraud or willful misrepresentation, he or she must apply for a waiver through a U.S. Consulate, and Customs and Border Protection Admissibility Review Process will adjudicate the waiver request.17 If the applicant is not required to have a visa and is applying for a waiver at the border, he or she must apply for the waiver at the U.S. border with Customs and Border Protection.

The waiver application is filed on a Form I-192.

Special Considerations for T and U Visa Applicants

A T or U visa applicant must file a Form I-192 to apply for a waiver of inadmissibility for fraud or willful misrepresentation. An applicant for a T or U visa must file an application for a waiver of inadmissibility for fraud or willful misrepresentation directly with USCIS. Because T and U visa applicants are crime victims who are entering to assist in a criminal investigation or prosecution (with limited exceptions from assisting), they will likely have a good chance of having a waiver granted in the public interest.

Conclusion

Inadmissibility for fraud or willful misrepresentation of a material fact is a particularly onerous inadmissibility ground due to the limited circumstances that it can be waived and the fact that it attaches for life (unless a waiver is obtained).

An immigrant visa applicant or person in removal proceedings who is inadmissible because of fraud or willful misrepresentation of a material fact should consult with an experienced immigration attorney to assess his or her options for relief. It is important to remember that not every person who is inadmissible on this ground will be able to obtain relief, but an experienced immigration attorney will be able to consider the facts of the case and determine the best path for pursuing relief if one exists.

If a person is inadmissible for fraud or willful misrepresentation of a material fact, and wishes to obtain a nonimmigrant visa, he or she should consult with an experienced immigration attorney in order to assess his or her options and properly apply for a waiver.

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  1. This is not to say that non-immigration fraud will not have adverse immigration consequences for an alien. For example, INA § 101(a)(43)(M)(i), (ii) defines fraud or deceit offenses or tax evasion (over $10,000) as “aggravated felonies” in the immigration context. However, only fraud and misrepresentation of a material fact to obtain an immigration benefit is covered under INA § 212(a)(6)(C)(i)
  2. Waivers are only available of the false claim of U.S. citizenship was made before September 30, 1996, or if the alien is the child of U.S. citizen(s) and meets certain other conditions.
  3. Matter of Lazarte, 21 I&N Dec. 214 (BIA 1996)
  4. See INA § 274(c)(7)
  5. USCIS PM, Volume 9, Part G, Chapter 1 — Purpose and Background § A
  6. USCIS PM, Volume 9, Part G, Chapter 1 — Purpose and Background § B
  7. 8 C.F.R. § 212(a)(4)(ii)
  8. 8 C.F.R. § 212(a)(4)(iii)
  9. 8 C.F.R. § 212(a)(4)(iv)
  10. Policy Memo, USCIS, Exceptions for Permitting the Filing of Form I-601 and Any Associated Form I-212, PM-602-0062.1
  11. Matter of Cervantes, 22 I&N Dec. 560, 566 (BIA 1999)
  12. 8 C.F.R. § 1040.58 [This regulation lists extreme hardship factors for battered and spouses and children for suspension of deportation].
  13. Matter of Tijam, 22 I&N Dec. 408, 413 (BIA 1998)
  14. 8 C.F.R. § 212.7(e)
  15. USCIS PM, Volume 9, Part G, Chapter 1 — Purpose and Background § E
  16. Id.
  17. INA § 212(d)(3)(A)(i)

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 171-73, Print. Treatises & Primers.