• How to Fight Misrepresentation in Immigration Case?
  • September 22, 2016 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • 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 seeks to procure, has sought to procure, or procured any benefit under the INA by fraud or willful misrepresentation of a material fact, is inadmissible to the United States.  It is important to note that this inadmissibility provision only applies to fraud or willful misrepresentation of a material fact to obtain benefits under the INA.  While other types of fraud or misrepresentation may either have adverse immigration benefits (see e.g., false claim to U.S. citizenship (sec. 212(a)(6)(C)(ii)) of alien subject to final order of removal for certain types of document fraud (sec. 212(a)(6)(F)) or adverse immigration penalties stemming from criminal convictions for fraud).  Section 212(a)(6)(C)(i) inadmissibility for fraud or willful misrepresentation of a material fact is a particularly punitive inadmissibility ground because the inadmissibility does not go away with the passage of time.

    Fraud or Misrepresentation Waiver Eligibility Under Section 212(i)

    There is a limited-use waiver of inadmissibility of section 212(a)(6)(C)(i) in section 212(i) of the INA.

    Section 212(i)(1) vests in the Attorney General the authority to waive section 212(a)(6)(C)(i) inadmissibility 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 the alien establishes that the refusal of his or her admission would result in “extreme hardship” to the U.S. citizen or LPR spouse or parent.  Section 212(i)(1) also extents to self-petitioners under the Violence Against Women Act (VAWA).  A VAWA self-petitioner will be able to establish eligibility for a section 212(i)(1) waiver if he or she demonstrates that the refusal of his or her admission would result in extreme hardship to him or herself in addition to his or her qualified U.S. citizen or LPR parent or child.  It is important to note that section 212(i) only applies to applicants for immigrant visas or adjustment of status with the lone exceptions of applicants for K and V nonimmigrant visas.

    Finally, a waiver for fraud or misrepresentation of a material fact is discretionary.  Adjudicators may weigh negative factors pertaining to the applicant in deciding to not exercise discretion in the applicant’s favor.

    Extreme Hardship

    A waiver under section 212(i)(1) has an “extreme hardship” requirement.  “Extreme hardship” is an oft-litigated concept in immigration law, and a consultation with an experienced immigration attorney is always appropriate for determining whether the standard can be met in a given case.  For non-VAWA waiver applicants, the “extreme hardship” must be to a U.S. citizen or LPR spouse or parent. Although extreme hardship to a U.S. citizen or LPR child may be considered in the context of showing that the refusal of the alien’s admission would result in extreme hardship to the U.S. citizen or LPR spouse, extreme hardship to a child cannot form the basis of establishing eligibility for a section 212(i)(1) waiver.  A VAWA self-petitioner may meet the extreme hardship standard by demonstrating extreme hardship to him or herself or a qualified U.S. citizen or LPR parent or child. In a VAWA self-petitioning case, factors specific to the abuse incurred by the applicant may be considered.

    Applying for a Waiver for Fraud or Misrepresentation under Section 212(i)

    If the applicant is not in removal proceedings, he or she may file the Form I-601 with the USCIS in accordance with the form instructions.

    If the alien is in removal proceedings, he or she may seek a section 212(i) waiver as a defense to removal.  The Administrative Appeals Office (AAO) may review the denial of a waiver by the USCIS, while the Board of Immigration Appeals (BIA) may appeal the denial of a waiver by an Immigration Judge (IJ).

    Other Classes of Applicants Eligible for Fraud or Misrepresentation Waiver

    The United States Citizenship and Immigration Services Policy Manual (USCIS-PM) lists other classes of applicants other than those described in section 212(i) who may be eligible for a waiver of inadmissibility for fraud or misrepresentation of a material fact.  This list is found in 9 USCIS-PM G.1(E):
    • Temporary Protected Status (TPS) applicants (section 244(c));
    • Applicants for admission as refugees (section 207);
    • Refugees and Asylees applying for adjustment of status (section 209);
    • Legalization applicants under section 245A;
    • Special Agricultural Workers under section 210; and
    • Applicant for entry as a nonimmigrant (section 212(d)(3); different rules for K, T, U, and V nonimmigrants).
    Applicants for waivers who are applying for admission as refugees, applying for adjustment of status as a refugee or asylee, applying for legalization, or applying for status as a Special Agricultural Worker may procure a fraud or misrepresentation waiver if the granting of such waiver is determined to serve humanitarian purposes, promote family unity, or otherwise be in the public interest.

    With the exception of K and V nonimmigrants (eligible for waivers under the section 212(i) rules) or U and T immigrants (must apply for a waiver with the USCIS), a nonimmigrant may apply for a waiver for advance permission to enter the United States under section 212(d)(3).  The waiver application will be adjudicated by the Customs and Border Protection (CBP).

    Conclusion:  Waiver for Fraud or Misrepresentation of a Material Fact

    An alien who is inadmissible for fraud or misrepresentation of a material fact to obtain an immigration benefit should consult with an experienced immigration attorney.  An experienced immigration attorney will be able to determine whether the facts of the alien’s situation suggest that he or she would be eligible for a waiver.  In the course of an application for a waiver, an experienced immigration attorney will be able to assist the alien in preparing a complete application to make a strong case to immigration adjudicators that they should exercise discretion in the applicant’s favor. Counsel is especially important for an alien who is in removal proceedings.