INA 237(a)(1)(H) waiver for misrepresentation

INA 237(a)(1)(H), commonly known as the fraud waiver, provides relief to lawful permanent residents (LPR) and battered spouse self-petitioners in removal proceedings. To understand this waiver, we must first examine some related provisions.

Under INA 212(a)(6)(C)(i), an alien is inadmissible if he has previously obtained or attempted to obtain a visa, other documentation, admission or other benefit under the Immigration and Nationality Act (INA), by means of fraud or by willfully misrepresenting a material fact. Inadmissibility means that an alien is barred from receiving a visa or admission into the US.

Under INA 237(a)(1)(A), an alien is removable if, at the time of his entry or adjustment of status, he was inadmissible. Removability or deportability means that an alien was previously admitted into the US but who is now removable, generally, due to facts that occurred during or after admission into the US. For example, X was the beneficiary of an immigrant petition as an unmarried adult son of a USC. This petition was approved. In 2005, X entered the US as an immigrant and acquired LPR status. However, it turned out that, at the time of his petition, X was in fact married. USCIS subsequently discovered this fraud when X applied for naturalization. Thus, in 2012, USCIS placed X in removal proceedings on charges that, at the time of X’s admission, he was inadmissible for fraud or material misrepresentation. Hence, X was removable under INA 237(a)(1)(A) because at the time of his admission he was inadmissible under INA 212(a)(6)(C)(i) for fraud or material misrepresentation.

Now under INA 237(a)(1)(H), the Attorney General has discretion to waive the removability of an alien under INA 237(a)(1)(A) due to his inadmissibility under INA 212(a)(6)(C)(i) at the time of admission, whether or not the fraud or material misrepresentation was willful or innocent.

Two types of aliens may apply for an INA 237(a)(1)(H) waiver: (1) LPRs; and (2) battered spouse self-petitioners under the Violence Against Women Act (VAWA).

An LPR may apply for an INA 237(a)(1)(H) waiver if he: (1) has a qualifying family member such as a USC or LPR spouse, parent, son or daughter; (2) had an immigrant visa or valid entry document at the time of admission; and (3) was otherwise admissible at the time of admission except for any inadmissibility that was the direct result of the fraud or misrepresentation.

A battered spouse self-petitioner may apply for an INA 237(a)(1)(H) waiver if: (1) she was admitted into the US; and (2) her admission involved fraud or material misrepresentation.

In addition, both LPR applicants and battered spouse self-petitioners must show in their INA 237(a)(1)(H) waiver applications that they are entitled to the exercise of favorable discretion.

In Matter of Tijam, 22 I&N Dec. 408 (BIA 1998), the Board of Immigration Appeals (BIA) explained that a favorable exercise discretion requires the balancing of an alien’s undesirability as a permanent resident with the social and humane considerations present to determine whether a grant of relief is in the best interests of the country. Adverse factors include: (1) the nature and circumstances of the fraud or misrepresentation involved; (2) the nature, seriousness, and recency of any criminal conduct; and (3) any other evidence of bad character or undesirability as an LPR. Favorable factors include: (1) family ties in the US; (2) long residence in the US; (3) hardship to the alien or his family; (4) stable employment; (5) property or business ties; and (6) value and service to the community; and (7) good character.

If you’ve noticed, an INA 237(a)(1)(H) waiver does not require the alien to demonstrate extreme hardship on his qualifying relative. Other waivers of inadmissibility such as: (1) under INA 212(i), which waives inadmissibility under INA 212(a)(6)(C)(i) for fraud or material misrepresentation; (2) under INA 212(a)(9)(B)(v), which waives inadmissibility under INA 212(a)(9)(B)(i) for unlawful presence; and (3) a certain form of waiver under INA 212(h), which waives inadmissibility arising from criminal conduct, all require the showing of extreme hardship on qualifying relatives.

This means that an INA 237(a)(1)(H) waiver is a notch lower in degree of difficulty compared with the other waivers mentioned. However, an INA 237(a)(1)(H) waiver, like all the other waivers mentioned, still requires the alien to demonstrate hardship on family members in order to merit a favorable exercise of discretion. Nevertheless, demonstrating “hardship” instead of “extreme hardship” on qualifying relatives is a less demanding task.

The other important point to remember about an INA 237(a)(1)(H) waiver is that, if it is granted, the alien will keep his LPR status retroactive to his date of admission. For example, Y committed fraud when he entered as an LPR in 2000. In 2010, he was convicted of theft. In 2012, he was placed in removal proceedings. He may apply for INA 237(a)(1)(H) relief for his fraud and cancellation of removal for LPRs for his theft conviction. If the waiver is granted, he would be considered an LPR since 2000. Since he has been an LPR from 2000, he would also meet the 5-year LPR requirement for LPR cancellation.

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Charles Medina practices immigration law. Visit his website at www.medinalawgroup.net for more details. This article provides general information only and does not provide legal advice on any specific matter or predict the outcome of any legal matter. It does not invite or create an attorney-client relationship.