Filling out applications for immigration benefits can be a difficult and stressful experience. It is not uncommon to make mistakes or to misrepresent certain information – whether it is on purpose or not. Every year, many people find out when they visit a consulate or an immigration officer that they have been found to have misrepresented information or to have committed fraud, and thus will no longer be able to obtain an immigration visa or a green card. Under Immigration and Nationality Act (“INA”) § 212(a)(6)(C)(i), noncitizens who seek 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. Fortunately, these individuals can still apply for a 212(i) waiver to have the fraud or misrepresentation waived so they can remain eligible for immigration benefits.
Who Can Get a 212(i) Waiver?
An immigration officer makes the assessment as to whether an applicant is eligible for a waiver. Generally, an applicant must meet the following requirements before a waiver can be granted:
- The applicant must show that denial of admission to or removal from the United States would result in extreme hardship to his or her qualifying relative (or if the applicant is a VAWA (Violence Against Women Act) self-petitioner, to himself or herself)); and
- The applicant must convince the immigration officer to use their discretion in the applicant’s favor
What is a qualifying relative?
A qualifying relative is a relative of the applicant who is either:
- A U.S. citizen parent or spouse;
- A Lawful Permanent Resident (Green-card holder) parent or spouse; or
- A U.S. citizen fiancé(e) petitioner (for K-1 or K-2 visa applicants only)
Note that a VAWA self-petitioner does not need to have a qualifying relative. Although they may apply while claiming an extreme hardship to a U.S. citizen, LPR, or a qualified alien parent or child, they can also qualify by claiming extreme hardship to themselves.
What is an “extreme hardship?”
A finding of extreme hardship is based on a totality of circumstances that takes into account any factors, arguments, and evidence provided by the applicant, as well as outside information such as country conditions as reported by the U.S. Government.
USCIS notes that common consequences of denying admission are not, in and of themselves, enough to warrant a finding of extreme hardship. These “common consequences” include:
- Family separation;
- Financial hardship;
- Any difficulties associated with getting adjusted to life in the new country;
- Wanting superior educational opportunities in the U.S.;
- Inferior quality of medical services and facilities; and
- Whether your specific career is feasible in another country.
Instead, USCIS looks to more specific hardships. Below, we have recreated a chart (with modifications) from USCIS that describes the factors and considerations that could lead to a finding of extreme hardship.
Family Ties and Impact
Social and Cultural Impact
Health Conditions and Care
What will an immigration officer consider as part of their discretion?
An immigration officer must balance the positive and negative factors for each applicant for a waiver and determine if the applicant should get the waiver. They generally consider the following:
- The facts and circumstances surrounding the fraud or willful misrepresentation;
- The applicant’s reasons and motivations at the time the fraud or willful misrepresentation was committed;
- The applicant’s age or mental capacity at the time the fraud was committed;
- Whether the applicant has repeatedly committed fraud or willfully misrepresented facts; and
- The nature of the proceedings in which the applicant committed the fraud or willful misrepresentation.
The above list is not exhaustive, and officers are free to consider other facts before them.
How to Apply for a Waiver
In order to apply for a waiver, an applicant who is not already in removal (i.e. deportation) proceedings must file a Form I-601, Application for Waiver of Grounds of Inadmissibility. This is a general form used to seek a waiver for many different grounds of inadmissibility. Make sure to indicate on the first page that you are seeking a waiver due to inadmissibility under 212(a)(6).
An applicant already in removal proceedings may apply for a 212(i) waiver as a defense to removal.
The 212(i) waivers are discretionary, which means that immigration adjudicators will weigh positive and negative factors in an applicant’s particular case when deciding whether or not to rule in his or her of favor. Qualified immigration law practitioners such as Ashkan Yekrangi and his team can ensure that you present your strongest case to adjudicators, and therefore, have your best chance at obtaining a 212(i) waiver.
Obtaining a waiver for fraud or willful misrepresentation is a challenging process but having respectable legal professionals by your side can make all the difference. Contact an immigration attorney at Yekrangi & Associates today.