• Understanding the Section 237(a)(1)(H) of the Immigration and Nationality Act            
  • February 18, 2011 | Author: Richard M. Wilner
  • Law Firm: Wilner & O'Reilly, APLC - Irvine Office
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    Introduction

     

                Section 237(a)(1)(H) of the Immigration and Nationality Act (INA) provides a discretionary waiver  for lawful permanent residents or self-petitioning individuals under the Violence Against Women Act (INA) who are in removal proceedings for certain misrepresentations or fraud at the time of their entry or admission.  The waiver is designed to waive or forgive misrepresentation, whether willful or innocent, which the lawful permanent resident made in order to obtain the immigrant visa, other entry documentation or admission into the United States.  In most cases, it applies to individuals who were petitioned by their parents as single children when they were actually already married.

    Congress enacted the waiver under INA § 237(a)(1)(H) for humanitarian reasons, mainly to prevent separation of family members.  See INS v. Errico, 385 U.S. 214 (1966). This type of waiver can only be pursued in removal proceedings.  If the waiver is granted, the removal proceedings are terminated and the lawful permanent resident retains his or her green card.  In fact, the alien’s green card status is validated back to the time of admission.  The waiver under this section is not available to individuals who committed fraud in order to procure a non-immigrant status and are not lawful permanent residents.

     

    Statutory and discretionary eligibility.

     

                The relevant statute pertaining to the waiver can be found in INA § 237(a)(1)(H).  As such, the waiver is known as an “INA § 237(a)(1)(H) waiver”.   The following requirements must be satisfied to qualify under the waiver, depending on whether the applicant is a lawful permanent resident or a VAWA self-petitioner.  The VAWA self - petitioner needs only to show that he or she was admitted to the Unites States and such admission was procured by fraud or misrepresentation.

     

                A non-VAWA applicant on the other hand must demonstrate the following:

    The person must have a qualifying family member who is a United States citizen or lawful permanent resident (either a spouse, parent, son or daughter);

    Was in possession of an immigrant visa or equivalent document at the time of admission or adjustment of status; and

     

                In addition to these requirements, a lawful permanent resident must show that she or he is entitled to the waiver as a matter of discretion.  The Board of Immigration Appeals (BIA) stated that an immigration judge, in deciding whether to grant a waiver, should “must look at each of the adverse factors, including the alien’s initial fraud, to determine whether, in light of all of the factors presented, a waiver of deportability should be granted to maintain the alien’s family unity and strong ties to the United States.” Matter of Tijam, 22 I&N Dec. 408, 417 (1998).

     

                In Tijam, the BIA enumerated a list of relevant factors, both positive and negative, to be considered by an immigration judge in analyzing each individual waiver application.  Negative factors include the nature and circumstances surrounding the initial fraud or misrepresentation, the nature, seriousness, and recency of any criminal record, and other evidence of bad character or overall undesirability of the applicant.   The positive factors include the applicant’s family ties in the United States, the length of residence in the United States (especially when the green card was obtained at a young age), evidence of hardship to the applicant or his/her family should the applicant be removed, evidence of stable employment, the existence of property or business ties in the United States, and other evidence of the applicant’s good moral character and service to the community. 

     

    Applicability of the INA § 237(a)(1)(H) waiver

     

                If the waiver under this section is granted, it has far reaching consequences for the applicant.  First, the waiver waives any inadmissibility grounds that stemmed from the fraud or misrepresentation.  As such, the applicant is not longer removable from the United States.  Second, the waiver also forgives the underlying fraud or misrepresentation, which is retroactive to the date of admission or adjustment.  In some instances, the waiver under this section has been used to waive marriage fraud.  See Virk v. INS, 295 F.3d 1055, 1059 (9th Cir. 2002).   A person who has been granted a waiver under INA § 237(a)(1)(H) can subsequently apply to be a United States citizen as long as other citizenship eligibility requirement s are met.