In this article, we will discuss waiver of inadmissibility based on fraud or willful misrepresentation of material facts to an immigration official either within the United States or at the United States Embassy or Consulate abroad. Under INA §212(a)(6)(C)(i), any alien who, by fraud or willful misrepresentation of a material fact, seeks to procure, has sought to procure, or has procured a visa, other documentation or admission into the United States or other immigration benefits, is inadmissible.
This issue may come up at the interview for adjustment of status in the United States, at a removal proceeding or abroad in the context of application for visa or refugee interview. The purpose of this waiver is to (1) provide humanitarian relief and to promote family unity; (2) to ensure the applicant merits favorable discretion based on positive factors outweighing the alien’s fraud or willful misrepresentation and any other negative factors; and (3) to allow the alien to overcome the inadmissibility or removability ground.
Before September 30, 1996, the waiver was available to aliens who could show that (1) more than 10 years had passed since the fraud or willful misrepresentation; or (2) that the alien’s United States citizen or lawful permanent resident parents, spouse or children would suffer extreme hardship if the alien was not granted admission to the United States, approved for permanent residence or green card. Presently, the ten year requirement is no longer part of the law and the only requirement now is that the alien demonstrate his/her (a) United States citizen parent or spouse; (b) permanent resident parent of spouse and/or (c) United States citizen fiancé or in the case of a VAWA self-petitioner or his/her United States citizen, permanent resident parent or child will suffer extreme hardship if admission/adjustment of status/green card is not granted.
However, in eliminating the ten-year requirement, the law now has two inadmissibility provisions: (1) inadmissibility for fraud or willful misrepresentation and (2) inadmissibility for falsely claiming United States citizenship. There is no waiver for false claim to United States citizenship unless the offense was committed before September 30, 1996. The waiver of inadmissibility based on fraud or willful misrepresentation is not available to everyone. Those eligible to apply are:
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Aliens applying for adjustment of status for family-based petitions or as VAWA self- petition;
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Aliens applying for adjustment of status for employment-based petition;
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Those applying for nonimmigrant K visa (fiancé(e(s) of United State citizens and their accompanying minor children, foreign spouses, and step-children of United States citizens;
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Those applying for nonimmigrant V visa (spouses and unmarried children under age 21 or step-children of lawful permanent residents.
The USCIS has the discretion to waive this ground of inadmissibility for the following categories of applicants:
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A VAWA self-petitioner seeking adjustment of status or green card;
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An immigrant visa applicant who is the spouse, son or daughter of a United States citizen or Lawful Permanent Resident;
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An adjustment of status applicant who is the spouse, son or daughter of a U.S. citizen or green card holder;
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A VAWA applicant who is the spouse, son or daughter of a United States citizen or Lawful Permanent Resident;
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A K visa applicant who is the fiancé(e) of a U.S. citizen, or the applicant’s children; and
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A K-3 or K-4 applicant.