INA § 212(a)(6)(C)(i) bars an alien from acquiring a visa or admission into the U.S. if the alien has formerly obtained or attempted to obtain a visa, other documentation, admission or other benefit under the Immigration and Nationality Act (INA), through fraud or willful misrepresentation of a material fact.
"Fraud" requires a determination that the alien made a false representation of a material fact with knowledge of its falsity and with the intent to deceive a consular or immigration officer. The false representation must have been believed and acted upon by the consular or immigration officer.
“Misrepresentation” has a lower standard of proof than is required for finding fraud. A misrepresentation is an assertion not in accordance with the facts. A material misrepresentation must be of “direct and objective significance” to the proper resolution of the alien's application for a visa.
Waivers of Inadmissibility Due to Fraud or Misrepresentation
Under INA § 212(a)(6)(C)(i), the alien incurs a severe penalty of lifetime inadmissibility to the United States, unless a waiver is obtained. Two types of waivers of inadmissibility due to fraud or misrepresentation exist:
1)Waivers of Inadmissibility for an Immigrant Visa; and
2)Waivers of Inadmissibility for Non-Immigrant Visa.
1) Waivers of Inadmissibility for an Immigrant Visa
INA § 212(i) Waiver
An applicant for an immigrant visa who is inadmissible under INA § 212(a)(6)(C)(i), may seek a waiver under INA 212(i) if: the alien is the spouse, son, or daughter of a U.S. citizen or a lawful resident alien; and the Secretary of Homeland Security is satisfied that the refusal of the alien’s admission to the United States would result in extreme hardship to the U.S. citizen or lawful resident spouse or parent of such alien.
INA § 237(a)(1)(H) Waiver
INA § 237(a)(1)(H) provides a discretionary waiver in removal proceedings for fraud and certain misrepresentations at admission that would otherwise render deportable a lawful permanent resident (LPR) or a self-petitioner under the Violence Against Women Act (VAWA). A non-VAWA applicant must show the following:
1)the person must have a qualifying family member who is a United States citizen or lawful permanent resident (either a spouse, parent, son or daughter);
2)was in possession of an immigrant visa or equivalent document at the time of admission or adjustment of status; and
3)a lawful permanent resident must show that she or he is entitled to the waiver as a matter of discretion.
The Board of Immigration Appeals (BIA) stated that an immigration judge, in deciding whether to grant a waiver, “must look at each of the adverse factors, including the alien’s initial fraud, to determine whether, in light of all of the factors presented, a waiver of deportability should be granted to maintain the alien’s family unity and strong ties to the United States.” Matter of Tijam, 22 I&N Dec. 408, 417 (BIA 1998).
Alternatively, the VAWA self-petitioner needs only to show that he or she was admitted to the U.S. and such admission was secured by fraud or misrepresentation.
2) Waiver of Inadmissibility for Non-Immigrant Visa
INA § 212(d)(3) Waiver (a.k.a. the “Hranka Waiver”)
Individuals pursuing temporary admission into the United States who are subject to grounds of inadmissibility may qualify for a nonimmigrant waiver under INA § 212(d)(3). The Department of Homeland Security (DHS) has the discretion whether or not to grant a nonimmigrant waiver of inadmissibility. In Matter of Hranka, the Board of Immigration Appeals (BIA) set forth three factors that DHS officers must balance when adjudicating Section 212(d)(3) waivers:
1.The risk of harm to society if the applicant is admitted;
2.The seriousness of the applicant’s prior immigration or criminal law violations, if any; and
3.The nature of the applicant’s reasons for wishing to enter the U.S.
16 I&N Dec. 491, 492 (BIA 1978).
The Murray Law Firm Can Help You!
Waiver applications of inadmissibility can be complex and difficult to complete. You do not need to navigate this daunting application process alone. The Murray Law Firm is dedicated to providing you with comprehensive information to properly assist with the completion of your waiver application.
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