Immigration Fraud Waiver 237(a)(1)(H)
Author: New York Immigration lawyer Alena Shautsova
Immigration laws are unforgiving to those who the government determined used fraud or misrepresentation to acquire an immigrant visa or adjustment of status. The Immigration Fraud waiver under 237(a)(1)(H) is one of the rare exceptions.
Immigration fraud occurs when a person makes an intentional misrepresentation of material fact with intent to deceit the person to whom the message is addressed.
A misrepresentation occurs when a person presents facts that are not true. In the content of the discussed waiver, a misrepresentation may be willful or innocent.
As used in INA 212(a)(6)(C)(i), a misrepresentation is an assertion or manifestation not in accordance with the facts. Misrepresentation requires an affirmative act taken by the alien. A misrepresentation can be made in various ways, including in an oral interview or in written applications, or by submitting evidence containing false information.
Due to the broad definition of misrepresentation, and the fact that it can be innocent, a green card holder may be charged with removability based on misrepresentation even when he/she was not aware of the falsity of the information. For example, a person was not aware that he/she had an order of deportation against him/her and answered NO to the question regarding outstanding orders; a person was not aware that the divorce certificate was false and introduced it as a valid proof during an immigrant visa application…
A permanent resident who entered the US using an immigrant visa or who adjust his status in the U.S. may be charged with the ground of removability under INA 237(a)(1)(A) or INA 212(a)(6)(c)(i) if suspected of fraud or misrepresentation in connection with the receipt of IV (immigrant visa) or permanent resident status. The good news, is that in many cases, a person may apply for a 237(a)(1)(H) waiver.
To qualify for the waiver, a person first has to be charged with the mentioned above grounds of removability.
Second, a person has to have a qualified retaliate in the U.S.: a spouse, parent, son or daughter who is a U.S. citizen or LPR. The usual reading of the statute so far is that the relative must be alive at the time of the decision on the waiver and that the qualifying relationship should be in existence. However, at least one court in the 9th circuit held that a son of the deceased USC can qualify for the waiver; and in at least one BIA decision, a divorced applicant was allowed to apply for it. See Matter of Soretire, 11/20/14, unpublished BIA decision.
Notably, no showing of extreme hardship to the relative is required for this particular waiver.
Third, a person must not be otherwise inadmissible.
This waiver may be helpful to those who gained their permanent resident status without disclosing that were married at the time of the marriage to the USC (bigamy); those who did not disclose that they were married when received a visa as an unmarried son or daughter of the LPR; those who presented false documents at the time of the Immigrant visa interview or adjustment of status; and those conditional resident who the USCIS believes engaged in fraudulent marriage.
Finally, if an applicant is statutory eligible for the waiver, he/she still has to demonstrate that he/she deserves a favorable discretion. It means that person’s good moral character as well as hardship to the qualifying relative will be considered (however, the level of hardship does not need to rise to the extreme level).
Can one whose waiver was denied appeal the denial in court?
It depends on the grounds for the denial. Although a court does not have jurisdiction to review the discretionary denial of a fraud waiver, it does have jurisdiction to review the statutory eligibility elements under § 237(a)(1)(H) of the Immigration and Nationality Act (INA), 8 U.S.C.S. § 1227(a)(1)(H), as it may review constitutional claims or questions of law. INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D).