Waivers of Misrepresentation under INA §237(a)(1)(H) and INA §212(i)

The Immigration and Naturalization Act forgives certain mistakes such as misrepresentation or fraud. This is in accordance with Congress’ intent to unite family and preserve family units. The Act has several waivers of inadmissibility in removal proceedings INA §237(a)(1)(H), before USCIS under INA §212(i), and waivers for non-immigrant visas. This article will discuss these waivers in detail. Call us today if you have been charged with deportability and inadmissibility under the law.

Waivers of Misrepresentation Under INA §237(a)(1)(H):

Immigrants could be charged for deportability under INA §237(a)(1)(A) for committing fraud or misrepresentation when obtaining an immigrant visa or adjustment of status. Fraud requires three things: 1) a misrepresentation, 2) of a material fact, and 3) with intent to deceive. Matter of G-G-, 7 I%N Dec. 161, 164 (BIA 1956). This misrepresentation may manifest itself in several ways. The immigrant must however make such misrepresentation to get a benefit under the Act. There are three requirements for the waiver:

• A qualifying relative
• Must have an immigrant visa or an equivalent document, and
• Must have been otherwise admissible at the time of such admission

This waiver does not require a showing of hardship to anyone, including the immigrant himself. Self-petitioners under the Violence Against Women Act do not need to show hardship. The requirement for an immigrant visa means that the waiver is not available to nonimmigrants or those who entered without inspection. The otherwise admissible language requires that the immigrant be free of any other grounds of inadmissibility. Matter of Fu, 23 I&N Dec. 985, 988 (BIA 1999). At the time of admission includes adjustment of status for waivers under INA §237(a)(1)(H). Matter of Agour, 26 I&N Dec. 566 (BIA 2015).

Waivers for Misrepresentation Under INA §212(i):

The Act, under INA §212(a)(6)(c)(i), makes an immigrant inadmissible for fraud or misrepresentation. To be inadmissible under such ground, the immigrant must have:

• Willfully misrepresented
• A material fact, and
• For a benefit under the Act.

There are several issues here. The law allows for a waiver of such misrepresentation if he or she could show that the denial of admission would lead to extreme hardship to a United States citizen or lawful permanent resident qualifying relative.

Practitioners challenge the finding of misrepresentation by arguing that the alleged fraud or misrepresentation was not willful, was not material, and was not for a benefit under the Act.

Non-Immigrant Visa Waivers for Misrepresentation:

This waiver is available under INA §212(d)(3(A).  The consular officer must weight three factors in adjudicating these waivers:

1. The recency and seriousness of the activity leading to inadmissibility
2. The reason for the proposed travel to the United States, and
3. The positive or negative of the planned travel to national interests

9 FAM 305.4-3(C).

Inadmissibility or deportability under the abovementioned grounds are very serious findings. An immigrant must consult with a competent immigration attorney to apply for these waivers. Call us today to schedule a consultation to discuss your options.