If a person is subject to removal/deportation proceedings on the basis of fraud or misrepresentations, and the person was already granted permanent residency, there is a waiver that can be sought under INS § 237(a)(1)(H). The eligibility requirements are:
- The persons seeking the waiver must be the spouse, parent or unmarried child of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence
- Must otherwise be eligible for admission (except for the fraud/misrepresentation)
- Was in possession of an immigrant visa or equivalent document that would have lawfully allowed admission but for the fraud or misrepresentation
- Must warrant the use of the immigration services discretion
- Note that unlike other ways, no hardship to the relative is required.
What is the Process?
Unlike other types of waivers, there is no immigration form to complete and file with the US immigration services. Rather, a section 237(a)(1)(H) waiver is sought when the immigration services begin removal/deportation proceedings.
What Factors are Considered?
Whether to grant a section 237(a)(1)(H) waiver is within the sole discretion of the immigration services. The decision is based on a number of factors including:
- The type, nature and seriousness of the fraud/misrepresentation
- The underlying circumstances of the fraud/misrepresentation including any mitigating reasons
- Does the applicant have a criminal record and/or other grounds for inadmissibility?
- History and status of applicant while being present in the United States including employment and criminal histories
- Other facts relevant to "good moral character"
- Family ties in the United States
- Ownership of property or business ties in the United States
An illustrative example comes from the case of San Pedro v. Ashcroft, 395 F. 3d 1156 (Court of Appeals, 9th Circuit 2005). In that case, Deoderico San Pedro, a citizen of the Philippines, entered the United States in 1987 on a preference visa as the unmarried son of a United States citizen. He willfully misrepresented that he was unmarried. In fact, however, he had been married since 1983 to a woman living in the Philippines. In this example, the fraud/misrepresentation was that Deoderico was unmarried. Deoderico was subject to removal/deportation based on that fraud/misrepresentation and he sought a section 237(a)(1)(H) waiver.
Deoderico might have obtained a waiver, but he could not meet one of the other requirements: having a qualified relative in the United States. His father -- a US citizen -- had died sometime before the proceedings. As such, San Pedro was not eligible to seek a section 237(a)(1)(H) waiver.
Another illustrative case comes from Ochoa v. Barr, Case No. 16-72453 (US Court of Appeals, 9th Circuit October 27, 2020) (unpublished). In that case, Blanca Ochoa obtained lawful status as a permanent resident by intentionally concealing that she had a criminal record. When deportation proceedings began, Ochoa sought a section 237(a)(i)(H) waiver of the fraud/misrepresentations. However, her waiver was denied because she was "otherwise" inadmissible because of the criminal convictions, that is, despite the fraud, the criminal matter still made her ineligible for permanent residency.
A237(a)(1)(H) waiver can also be used if a person entered into a fraudulent marriage and obtained a green card through that sham or fraudulent marriage. In order to be eligible for this waiver, the applicant needs to show he is the child, parent, or spouse of a United States Citizen or lawful permanent resident.
A 237(a)(1)(H) is a powerful tool and can only be used when someone is placed in removal proceedings. It is not a waiver that someone can independently apply for in conjunction with another application, such as an application for naturalization.
As can be seen, obtaining a section 237(a)(i)(H) waiver can be legally complicated. If you are attempting to obtain such a waiver, you need the help of experienced immigration attorneys.
Contact Yekrangi & Associates Today
For more information, contact the Orange County Immigration Attorneys at Yekrangi & Associates today. You are not alone and we will fight for you. Yekrangi & Associates works to meet a higher standard. Our first goal is your satisfaction. Contact us at (949) 478-4963 to schedule a consultation or complete our convenient “Get Your Consultation” form here. We are located in Irvine, California.