• Waivers for Fraud or Misrepresentation
  • February 23, 2016 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • Introduction: Inadmissibility for Fraud or Misrepresentation of a Material Fact

    Under section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA), an alien who is found to have procured or to have sought to procured a benefit under the INA through fraud or willful misrepresentation of a material fact is inadmissible for life. However, under section 212(i) of the INA, there are limited waivers available from this very serious inadmissibility ground. In this article, we will discuss in brief section 212(a)(6)(C)(i) inadmissibility and the limited waivers available in section 212(i).

    Conditions for Inadmissibility for Fraud or Misrepresentation to Attach

    The first condition for triggering section 212(a)(6)(C)(i) inadmissibility is for an alien to obtain a benefit or benefits under the INA by fraud or by willfully misrepresenting a material fact. Accordingly, this inadmissibility ground only applies to non-U.S. citizens [INA 212(a)(6)(C)(i)(1)]. If inadmissibility is triggered due to misrepresentation, the misrepresentation must have been willful and of a material fact [INA 212(a)(6)(C)(i)(3)-(4)]. Thus, the misrepresentation must have been made in order to obtain a benefit under the INA. If the misrepresentation was not in the context of obtaining benefits under the INA, it will not trigger section 212(a)(6)(C)(i) inadmissibility.

    Fraud and/or Misrepresentation Not Covered

    It is important to note that section 212(a)(6)(C)(i) does not cover every type of immigration fraud or misrepresentation.

    If an alien misrepresents him or herself as a U.S. citizen, he or she will instead be inadmissible under section 212(a)(6)(C)(ii). While there is a limited circumstance-specific waiver available for section 212(a)(6)(C)(ii) inadmissibility, the section 212(i) waiver only applies to inadmissibility for fraud or misrepresentation of a material fact under section 212(a)(6)(C)(i).

    Furthermore, if an alien becomes subject to a final order for removal for document fraud in violation of section 274C of the INA, he or she will not be eligible for a section 212(i) waiver. There is a very limited waiver for one of the six grounds of 274C inadmissibility in the context of a successful asylum or withholding of removal application.

    Waiver for Inadmissibility for Fraud or Misrepresentation of a Material Fact

    Recognizing the severity of 212(a)(6)(C)(i) inadmissibility (in particular in that it attaches for life), Congress created a limited waiver of inadmissibility in section 212(i) of the INA. A section 212(i) waiver may be available, in the discretion of the U.S. Attorney General, when the following conditions are met:

    When it is determined that the refusal of admission of the alien would result in extreme hardship to the citizen or lawful permanent resident spouse or parent of the alien; or
    In the case of a Violence Against Women Act (VAWA) self-petitioner, when it is determined that the refusal of admission of the alien would result in extreme hardship to the alien or the alien’s U.S. citizen or lawful permanent resident spouse or child(ren).

    First, we must note that the section 212(i) waiver is discretionary. Even if the alien demonstrates that extreme hardship would occur to a qualifying relative, a section 212(i) waiver may be denied on other discretionary grounds (e.g., other mitigating factors or the nature of the severity of the underlying fraud or willful misrepresentation).

    Also of note, in the majority of cases, demonstrating extreme hardship to the alien or to his or her citizen or permanent resident child(ren) are not grounds for a section 212(i) waiver. However, factors relating to the alien’s children may support the assertion that his or her qualifying spouse or parent(s) would incur extreme hardship if the alien is refused admission.

    If the alien is a VAWA self-petitioner, extreme hardship to the alien or his or her U.S. citizen or permanent resident children may be demonstrated to support eligibility for a 212(i) waiver.

    “Extreme hardship” is a well-litigated aspect of immigration law. Please see “see also” at the bottom of the article to find links to articles about demonstrating extreme hardship.

    Who May Seek the Waiver?

    Immigrant visa and adjustment of status applicants (family- or employment-based) and those seeking nonimmigrant K and V visas are eligible to apply for section 212(i) waivers. Accordingly, an alien may seek a 212(i) waiver as a defense in immigration court proceedings in order to adjust or re-adjust status. The section 212(i) waiver is only available to those applying for immigrant visas except in the case of applicants for K and V visas. Therefore, it is impossible to obtain a 212(i) waiver in the context of applying for a nonimmigrant visa other than K or V. However, there are limited circumstances in which nationals of Cuba may apply for a 212(i) waiver abroad outside of the context of an immigrant visa application of there are “exceptional and compelling circumstances that require the immediate filing.”

    The applicant for a K visa may use extreme hardship to his or her U.S. citizen fiancée to support eligibility for a waiver. However, if a section 212(i) waiver is granted in the K visa context, the waiver will be conditional until the K visa holder marries his or her nonimmigrant spouse. If the marriage does not occur, the section 212(i) waiver will be void and the alien will again be inadmissible for fraud or misrepresentation of a material fact [8 C.F.R. 212(a)(4)(ii)-(iii)].

    If a 212(i) waiver is obtained for a conditional permanent resident, the waiver will only be valid indefinitely until the conditions are removed from permanent residency [8 C.F.R. 212(a)(4)(iv)]. If status is terminated before the conditions are removed, the 212(i) waiver will become invalid.

    Other Cases

    Asylees and refugees seeking adjustment of status must seek waivers for fraud or willful misrepresentation under section 209 rather than section 212(i). Legalization applicants for adjustment of status must apply for waivers under section 245A of the INA. Special agricultural workers (SAW) applicants must apply under section 210. The standard for a waiver in these categories is if the waiver would serve humanitarian purposes, promote family unity, or otherwise be in the public interest.

    Section 212(d)(3) of the INA allows for the admission of aliens as nonimmigrants on a temporary basis who are inadmissible for fraud or misrepresentation of a material fact. Conditions may be placed on such an alien’s admission. In order to be admitted as a nonimmigrant, the alien must apply for a waiver through a U.S. consulate. The waiver request will be adjudicated by Customs and Border Protection (CBP).

    However, an applicant for a T or U visa must file a Form I-192 to apply for a waiver of inadmissibility. The application is filed directly with USCIS. USCIS may grant the waiver if it determines that granting such a waiver would be in the public interest.

    Appealing the Denial of a Waiver

    If a 212(i) waiver request is denied by a USCIS office, an appeal may be filed with the Administrative Appeals Office (AAO). In order to appeal in this case, the applicant must file a Form I-290B with the USCIS office that issued the unfavorable decision.

    If a 212(i) waiver is denied by an Immigration Judge, the applicant may appeal to the Board of Immigration Appeals (BIA).

    Conclusion

    It is important that any non-citizen in the United States is aware of section 212(a)(6)(C)(i) inadmissibility. It is a particularly severe inadmissibility ground because it attaches for life. While section 212(i) waivers are available for immigrant visa and adjustment of status applicants, demonstrating “extreme hardship” to a qualifying relative is a difficult task. An alien who is charged with inadmissibility for fraud or misrepresentation of a material fact should consult with an experienced immigration attorney for assistance in determining if any remedies are available given the facts of the specific case.