Waivers in Immigration Court
Section 212(i)-Fraud Waivers
People who have fraudulently or willfully misrepresented information during the visa application process or in other immigration documents may require an Immigration Fraud Waiver. These individuals include those who may have either omitted some information during their green card or visa application or, perhaps, did not reveal their true marriage status (for the case of married applicants). For those dealing with issues of fraud and/or misrepresentation in their immigration proceedings, there is a waiver under Section 212(i) available.
I-601 Fraud Waivers
Previous fraud may be waived by the government if your parent or spouse is a citizen or a permanent resident. Nonetheless, you should prove that failure to be granted a fraud waiver would result in extreme suffering of the relatives. Fraud waivers are limited compared to criminal waivers under section 212(h). The Immigration Judge considers hardship to the respondent’s family when deciding fraud waivers.
Some factors considered under extreme hardship include: your qualifying relative’s family ties to the U.S and outside the U.S, your home country conditions, financial implications of your deportation/removal from U.S. and your health status, especially if your home country doesn’t have suitable medical care.
For those applying for a fraud waiver, Form I-601 is required plus other supplementary documentations. However, those facing removal proceedings can submit Form I-601 to the Immigration Judge. Those applying abroad can also submit their waiver application to the Embassy of the United States or the Consulate where you will be interviewed. Persons who have falsely represented themselves as the U.S. citizens to obtain immigration benefits cannot be granted fraud waivers under Section 212(i). A fraud waiver application is a very complex process. Thus, seeking representation by an experienced immigration attorney will increase the chances of approval.
Legal permanent residents with deportable criminal convictions can avoid deportation and keep their green card if they are eligible for a 212(h) waiver. Moreover, they may be eligible for the waiver even if they face deportation due to the conviction of the following crimes:
- Crimes of moral turpitude;
- Procurement of prostitutes or engaging in prostitution;
- Conviction of more than two offenses with an aggregate sentence of more than 5 years;
- Participating in stern criminal activities involving the assertion of immunity from prosecution; or
- Conviction of 30 grams of marijuana or less.
The 212(h) waivers include:
- Fifteen-Year Waiver: The applicant should show that the activities under his/her inadmissibility transpired over 15 years ago, that his/her admission will not affect the country’s welfare or security and that he/she has already undergone rehabilitation;
- Extreme Hardship Waiver: If the applicant is inadmissible because of certain criminal conduct, he/she can be eligible for a 212(h) waiver if:
- (1) he/she can prove that his/her denial for admission may subject his/her U.S. citizen or legal permanent resident parent or spouse to extreme hardship; or
- (2) the Immigration Judge or USCIS gives a favorable discretion in his/her case after cumulatively weighing the factors in the foreign national’s case.
- Battered Spouse and Children Waiver: If the applicant was battered and subjected to adverse brutality by his/her spouse or parent, who is a U.S. Citizen or legal permanent resident, they can petition for a waiver under the Violence Against Women Act (VAWA). Again, the waiver has a higher chance of approval when represented by a knowledgeable and experienced immigration attorney. attorney.
If you have been placed in a removal proceeding due to your conviction of a criminal activity - yet you are a legal permanent resident, you can apply for a 212(c) waiver to avoid deportation. However, you only qualify for a waiver application depending on the criminal offense conviction and the date of the conviction. Some legal permanent residents can seek discretionary relief under the Immigration and Nationality Act Section 212(c).
Yet, the following requirements must be met for a 212c waiver application:
- Plead guilty to the crime prior to April 1, 1997;
- Have been a legal permanent resident for a minimum of five years;
- Have maintained a U.S. residence for a minimum and successive period of 7 years;
- Is not in removal or deportation proceedings on the basis of national security or terrorism;
- Is not unlawfully in the United States due to a past immigration felony;
- Does not have a firearm-related conviction nor an aggravated felony conviction and served more than 5 years for such conviction.
One cannot qualify to be granted a 212(c) waiver if he/she has departed and is presently out of the country, has unlawfully returned after removal or deportation, or is presently in the United States without admission or parole.
It should be noted that a 212(c) waiver is discretionary. This implies that despite your eligibility for the application of a 212(c) waiver, a decision will be made by the Immigration Judge on a case-by-case basis whether or not to award the relief. The Immigration Judge has to carefully balance between the positive factors and the negative aspects in your submission. Positive factors may comprise of U.S family ties, property ownership, long time U.S. residence, genuine rehabilitation, business ties, demonstrated value and community service, proof of good moral character, and your family’s hardship incurred by your removal. Negative factors include poor moral character and the nature of the criminal conviction (seriousness and recency).
Due to the complexity of such waivers, it is imperative that you speak with an experienced immigration lawyer in your case before you apply for relief under the 212c waiver.
To schedule an initial consultation with us today, don't hesitate to contact us at (949) 478-4963.
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