How to obtain a waiver for immigration fraud and misrepresentation

IF you are an applicant for an immigration visa, K visa, or V non-immigrant visa, your application may be denied if you are found inadmissible under certain circumstances. In this case, you may file an application for waiver for pacific grounds, such as health-related grounds of inadmissibility, certain criminal grounds of inadmissibility, or immigrant fraud and misrepresentation.

A waiver is a request by the alien applicant to the US government, through the USCIS, for “forgiveness” for the ground that the alien applicant has been found inadmissible so he can be granted the visa or green card despite of that ground. For instance, X, an alien married Y, a US citizen. During his adjustment of status interview (or visa interview at a US Embassy or Consulate abroad), X was found to be inadmissible because he previously used a passport under a different name upon entry in the US. In this case, the only way he can be issued a green card is by getting an approved waiver application for fraud or misrepresentation.

Under Section 212(a) (6) (C) (i) of the Immigration and Naturalization Act, “(a)ny alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.”  Please note that there must be a finding that: (1) the alien applicant must have committed fraud or misrepresentation, (2) the misrepresentation must have been done willfully, (3) the fact was material, and (4) that act was done to procure a visa, other documentation or admission to the US or any other benefit.  The requirements under the provision seem straightforward enough but this specific ground of inadmissibility is very complicated at times.

Further, to be eligible to file for this type of waiver, the following are required:

(1) the qualifying U.S. citizen or permanent resident relative (spouse or parent only) or the K-1 visa petitioner would experience extreme hardship if the alien applicant is denied admission, or

(2) The alien applicant is a VAWA self-petitioner and his US citizen, lawful permanent resident, or qualified parent or child would experience hardship if the alien applicant is denied admission.

Remember, as stated above, there are different grounds of inadmissibility, and the waiver that is granted will only apply to the ground/s of inadmissibility stated in the application. It is therefore important to apply for all the grounds of inadmissibility that pertain to you. Just make sure you are eligible for the other grounds of inadmissibility as well. In succeeding articles, I will discuss the other types of waiver.

If you are contemplating of filing any waiver application or any immigration petition for that matter, it is advisable to seek the counsel of an immigration lawyer to guide you on the intricacies of filing for such a petition.

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Atty. Gwendolyn Malaya-Santos is a member of the State Bar of California and the Integrated Bar of the Philippines. To schedule for a free initial in-person consultation, please call Tel. Nos. (213) 284-5984 or (626) 329-8215. Atty. Santos’ office is located at 3450 Wilshire Blvd., Suite 1200-105, Los Angeles, CA 90010.

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Information contained in this article does not, nor is it intended to, constitutes legal advice for any specific situation and does not create a lawyer-client relationship. It likewise does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. 

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