Waiver For Fraudulent Entry to US

By Roman Mosqueda, S. J.D.
Any alien who was procured a visa, benefit or admission into the United States by fraud or willfully misrepresenting a material fact (such as using another name or lying about marital status) is inadmissible, under section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA).

But there is a waiver of inadmissibility or removal (deportation) of such an alien, if:

(1) the alien is the spouse or son or daughter of a U.S. citizen or lawful permanent resident, and

(2) the alien can establish to the satisfaction of the Attorney General (Department of Homeland Security) or the Immigration Judge (in removal/deportation proceedings) that extreme hardship would result to the citizen or lawfully resident spouse or parent of such an alien.

Such waiver is called INA section 212(i) waiver that allows the alien to remain in the United States and keep his/her lawful permanent residence, or adjust to lawful permanent resident status.

This waiver is also available to a battered spouse or battered child, who has been granted classification as self-petitioner (under section 204(a)(1)(A)(iii) or (iv), or section 204(a)(1)(B)(ii) or (iii) of INA), if the alien can demonstrate extreme hardship to himself or herself,or to the alien's U.S. citizen or lawful permanent resident or qualified parent or child.

Extreme Hardship Factors For Waiver:

The Board of Immigration Appeals (BIA) delineated the factors to be considered in determining extreme hardship to the U.S. citizen or lawful permanent resident, in Matter of Cervantes, 22 I&N Dec. 560(BIA 1999), as follows:

1. family ties of the qualifying relative in the United States;

2. family ties of the qualifying relative outside the United States;

3. country conditions in the alien's home country;

4. ties of the qualifying relative to the alien's home country;

5. financial impact to qualifying relative of alien's departure from the United States;

6. health conditions of qualifying relative or even the alien as it affects financial capacity to support qualifying relative;

7. unavailability of adequate medical care facilities in alien's home country or country of relocation.

And if the section 212(i) waiver application (Form I-601, $195 filing fee) is filed with the Immigration Judge in removal or deportation proceedings, marriage to a U.S. citizen or lawful permanent resident only after removal proceedings have begun, would be considered.

A central purpose of such a waiver is to promote family unification.

Waiver Under INA Section 237(a)(1)(H):

This other section of the INA (aside from section 212(i)) also authorizes the waiver of removal of any alien who is inadmissible under INA section 212(a)(6)C)(i) due to fraudulent procurement of visas or other documentation, in the discretion of the Attorney General (Department of Homeland Security) or the Immigration Judge (in removal proceedings), if the alien:

1. is the spouse, parent, or son or daughter of a U.S. citizen or a lawful permanent resident; and

2. was in possession of an immigrant visa or equivalent document and was otherwise admissible except for INA Sections 212(a)(5)(A) and (a)(7)(A), as a direct result of the fraud or misrepresentation.

This waiver is also available to a spouse or child battered or subjected to extreme cruelty by a U.S. citizen spouse (INA section 204(a)(1)(A)(iii) or (iv), or by a lawful permanent resident spouse (INA section 204(a)(1)(B)(ii) or (iii)), and eligible for self-petition (Form I-130).

More specifically, this waiver section states that: "A waiver of removal for fraud or misrepresentation granted under this subparagraph (INA section 237(a)(1)(H)) shall also operate to waive removal based on the grounds of inadmissibility at admission directly resulting from such fraud or misrepresentation."

Thus, this waiver (INA section 237(a)(1)(H)) seems to be more inclusive than the INA section (212)(i) waiver.

Equities To Be Considered In INA Section 237(a)(1)(H) Waiver:

It is reversible error not to consider all equities in the exercise of discretion in "a balancing of an alien's undesirability as a lawful permanent resident with the social and humane considerations present," per Casem v. INS, 8F.3d 700 (9th Cir. 1993), and Matter of Tijam, Int. Dec. #3372(BIA 1998).

Some of the favorable factors (equities) to be considered, although the waiver section does not specify such equities, are:

1. family ties of the alien in the United States,

2. length of residence of the alien in the United States;

3. hardship to the alien and/or the family in case of removal/deportation;

4. alien's employment history;

5. property or business ties;

6. service and value of the alien to the American community; and

7. alien's good moral character.

The adverse or negative factors that may be considered in adjudicating the waiver application are:

1. the nature and underlying circumstances of the fraud or misrepresentation;

2. the nature and recency of the alien's criminal arrest(s)/conviction(s); and

3. bad moral character or undesirability of the alien as a lawful permanent resident.

In the final analysis, marriage to, or family relationship with, a U.S. citizen or lawful permanent resident may result in a waiver of inadmissibility and/or removal/deportation due to fraud or misrepresentation.