There are grave consequences for fraud or willful misrepresentation of facts with the intention of procuring an immigration benefit. The perpetrator will be inadmissible to the United States, which is often severe because it attaches to them for life.
The passage of time cannot remove the certain grounds for inadmissibility for fraud or willful misrepresentation, which makes it very severe. Meanwhile, a person can be rendered inadmissible for fraud or misrepresentation of a material fact without understanding why immediately. Sometimes, though not very often, affected applicants can make a waiver request for inadmissibility stemming from misrepresentation or fraud of material fact.
In this article, you’ll learn more about the I-601 waiver for prior fraud or misrepresentation. We’ll discuss why the waivers exist and the cases where an inadmissible immigrant may obtain the fraud waiver. Meanwhile, you may want to hire an immigration attorney to offer guidance on the waiver adjudication process.
Can Marriage Fraud Be Waived?
The Attorney General can waive certain misrepresentations like marriage fraud in pursuant to INA 237(a)(1)(H). The waiver will cure the inadmissibility on the valid visa incurred as a result of misrepresentation when entering the US. You can apply for this waiver whether you’re guilty of the misrepresentation allegations or innocent. The USCIS authorized a waiver by looking at the language of the INA and legislative history.
The spouse, parent, son, or daughter of a US citizen or alien lawfully admitted for permanent residence can apply for the waiver. Nevertheless, it takes more than simply establishing the appropriate qualifying relationship to obtain the waiver. The applicant also needs to establish that they merit a favorable exercise of discretion based on their US family ties. Additionally, evidence of hardship if deportation occurs, a long-duration residence in the US, and existence of property or business ties can help.
Can Misrepresentation Be Waived?
An applicant who is inadmissible into the United States for misrepresentation of a material fact can file form 212(I) waiver. However, it is only applicable where the applicant proves that a lawful permanent resident or spouse would face extreme hardship.
That is, they’ll face extreme hardship if denied admission or removed from a visa to enter the United States. Meanwhile, “extreme hardship” 212(I) waiver doesn’t apply to the inadmissible alien’s children.
On the other hand, the children of a US citizen or lawful permanent resident spouse or qualified alien parent will be considered for the waiver. The government will also not consider extreme hardship to the applicant to grant the waiver.
An applicant with a VAWA (Violence Against Women Act) case, extreme hardship to the applicant or their children may be considered. VAWA cases refer to situations where the immigrant was subject to extreme cruelty or battery by a US citizen spouse.
How Can You Overcome Inadmissibility Due to Misrepresentation in the US?
Sometimes, it happens that an applicant did not willfully misrepresent a material fact, in which case they can challenge the allegations. If you’re inadmissible, you can file a Form 212(i) to apply for a waiver of inadmissibility for willful misrepresentation.
The waiver serves as a defense in the removal proceedings and can help you win the inadmissibility case in court proceedings. You’ll need to pay legal fees and file a Form I-601 with the USCIS for processing of biographic and biometric information.
Along with the filing will be supporting documents for the immigrant applicant’s application and the I-601 filing receipt. The filing should be done with the Immigration Court for Adjudication, and the applicant and their qualifying relative will testify.
Their testimony must be in accordance with the affidavits and declarations they already submitted. They may also call other witnesses who can testify to the applicant’s good moral character, including a physician where necessary.
How Do You Fight Misrepresentation in Immigration Cases?
If you’re facing inadmissibility on misrepresentation grounds, you may want to hire an experienced immigration attorney to help with your case. They understand the waivers better and can determine what form you need to file and how waivers apply to your specific situation.
Moreover, you save a lot of time and effort, avoid costly mistakes, and obtain immigration benefits through immigration lawyers. The process of fighting misrepresentation in immigration cases is overwhelming, and you may end up losing the case.
Considering the complexity and ever-changing nature of U.S. immigration law, an attorney client relationship becomes essential. The findings and decisions pertaining to these matters are completely at the USCIS’s discretion, which is highly subjective.
Making even the tiniest mistake can cost you more money, result in avoidable denials and, worse, outright petition or application denial. Worse still, the inadmissible alien may get deported from the United States.
Who Is Eligible to Apply for 212(I) Waiver?
You can find the lists of the classes of applicants eligible for this waiver in the United States Citizenship and Immigration Services’ policy manual. They include an applicant seeking adjustment of status or immigrant visa based on a family-based petition or a VAWA self-petitioner seeking a green card or adjustment of status.
An applicant seeking a non-immigrant visa or an employment-based immigrant visa to adjust status is also eligible for the waiver. For the non immigrant K visa, the waiver applicant can meet the standard for the waiver using hardship to a US citizen fiancé when making an application for adjustment of status.
However, if a K-1 (US citizen fiancé) or K-2 (K-1 beneficiary’s child) gets the waiver, it is conditional until they marry a US spouse. Otherwise, the applicant will again be rendered inadmissible for immigration fraud or willful misrepresentation of material fact. Meanwhile, the waiver will be valid indefinitely for a conditional permanent resident status when their permanent resident status conditions have been removed.
When Should You Apply for I-601 Waiver Due Misrepresentation?
I-601 waiver is useful for applicants who have been deemed inadmissible due to fraud or willful misrepresentation and seek a green card or immigrant visa. If you applied for the immigration benefit and got it, you’re inadmissible for procuring the benefit by willful misrepresentation.
If it is denied, you’re inadmissible for attempting to procure it. You will typically be inadmissible based on willful misrepresentation if you’re found guilty of the following:
- Procurement or attempt to procure a benefit under U.S. immigration laws,
- Making material false representation whether willfully or unknowingly,
- Making the false claim to a United States government official, including a USCIS immigration officer, US consular officer, or US custom officer,
Who Is Qualified to Apply and Obtain the I-601 Waiver?
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The following persons are qualified to apply for the I-601 fraud waiver and be excused from the lifetime bar:
- Applicants who are spouse, son or daughter of a permanent resident or US citizen who will suffer hardship if not admitted to the US,
- VAWA self-petitioners that will suffer extreme hardship unless admitted to the US, and
- A VAWA self-petitioner whose US citizen spouse, parent, or child will suffer extreme hardship unless admitted to the US.
Nevertheless, being qualified for the fraud waiver doesn’t automatically translate to you getting it; the USCIS will grant or not grant it at its discretion. You’ll need to present evidence that the positive factors outweigh the negative along with meeting the statutory requirements for a fraud waiver.
What Characterizes an Applicant’s Family Member as a Qualifying Relative?
An applicant’s qualifying relative ties include their US citizen or lawful permanent resident parent or spouse, and the US citizen’s fiancé(e) petitioner. The US citizen or LPR’s children are not considered as qualifying relatives. Meanwhile, a VAWA applicant seeking a green card doesn’t need a qualifying relative since they can claim extreme hardship to themselves.
Once there is qualifying relative’s family ties, it becomes easy to claim extreme hardship and that facilitates the green card process for such a person, provided such person relying on qualifying relative’s ties is not included in any crime involving moral turpitude.
What Can Result in Waiver Denial?
An adjudicating officer is at liberty to deny the waiver if the applicant fails to establish extreme hardship. However, before denying the waiver, the officer will follow standard procedures concerning issuance of a Notice of Intent to Deny or Request for Evidence.
Generally, if the officer finds that the applicant won’t have extreme hardship, they can deny the waiver. However, if they have, then the officer will proceed with the discretionary determination.
Who Decides Whether the Waiver Should Be Granted or Not?
The officer in charge of the case analyzes and decides whether the waiver should be granted as a matter of discretion. They’ll determine whether the foreign national’s positive factors outweigh the negative factors.
The first positive factor is extreme hardship by a qualifying relative while the first negative factor is underlying fraud or willful misrepresentation.
How About Refugees Who Are Inadmissible for Fraud or Willful Misrepresentation?
The several cases in which a nonimmigrant can apply for a waiver are listed in the USCIS Policy Manual. For refugees who are inadmissible on the grounds of fraud or misrepresentation, they can apply for a 207 Immigration and Nationality Act waiver.
One major reason for such an application is for crime victims. Crime victims are individuals who suffer the outcome of crimes making them unable to live and lead their normal lives. Such individuals who belong to this category can make a waiver application as a foreign national or a United States citizen during the immigration court proceedings.
If the waiver will serve family unity, humanitarian relief, or the public interest, it may be considered and approved. The refugee will need to file a Form I-602 waiver application.
How Does U.S. Immigration Law Determine Extreme Hardship?
U.S. immigration law gives special meaning to the term “extreme hardship,” where it determines it under several factors. The determining factors for intense or extreme hardship include education, personal considerations, the significant health conditions of the patient relative, financial considerations, and particular considerations that can result from family separation.
When faced with am immigration case, the Department of Homeland Security reviews the case of the intended immigrant and determines based on available judicial review whether it will go through or not.
Hire Richard Herman Today!
Getting through your waiver application can be very challenging. To avoid missing out on vital points during the process, especially relating to immigration appeals, it is best to contact a reputable immigration attorney. With a vast knowledge bank, Richard Herman is undoubtedly the best immigration attorney in the United States who has worked with many others. You won’t be the first United States citizen he is working with, and his experience will come in handy.
To get started, you will need to schedule a consultation by calling any of these numbers: +1-216-696-6170. You can also book online if that works for you.
Conclusion
Applicants with a lifetime bar on their US visa application can apply for a waiver under extreme hardship, including psychological hardship. If you’re in this situation, you can go to one of the state law offices around you to hire an immigration lawyer for your alleged fraud or misrepresentation case.
You have better chances with an immigration judge when you have experienced legal assistance. Plus, they’ll prepare you for your immigrant visa interview with a legal brief and assistance while ensuring you stay in the United States temporarily.
