After the 237(a)(1)(H) Fraud Waiver Approval

By Steven J. Malm, Nancy E. Miller and Robert L. Reeves

 Immigrants who obtain their green cards through fraud are subject to removal.  The fraud can take many forms but two common ones are misrepresentation of marital status (i.e. claiming to be single when one is, in fact, married) and marriage fraud (i.e. entering into a marriage for the sole purpose of obtaining an immigration benefit and avoiding immigration requirements).   Aliens who engage in these practices usually get caught.  Sometimes the fraud is discovered during the application for the initial benefit.  At other times, it is discovered when the non-citizen attempts to naturalize.  It can also be discovered when the new-citizen attempts to immigrate their family members.  If one has already a green card holder at the time the fraud is discovered, they may be eligible for a waiver under section 237(a)(1)(H) of the Immigration & Nationality Act.  An approved 237(a)(1)(H) waiver forgives the fraud and validates the green card from the date it was originally granted.  This enables the immigrant to move on with their lives in many positive ways.   

 With credit for the full length of their permanent residency, a beneficiary of a 237(a)(1)(H) waiver can often immediately apply for U.S. citizenship.  This is because a basic requirement for U.S. citizenship is that a person has continuously resided in the U.S. after obtaining lawful permanent resident status.  The statutory time period is normally 5 years, though 3 years if the person has been living in marital union with a U.S. citizen for the entire time leading up to filing.  By the time a person has his or her 237(a)(1)(H) waiver approved by an Immigration Judge, he or she usually satisfies the residency requirements for citizenship.  The analysis as to whether the person can immediately file for citizenship does not end there, though.  As with all other forms of immigration benefits, one should always consult with a knowledgeable and experienced immigration attorney to determine both eligibility and risks of applying for naturalization.  False testimony under oath during the statutory time frame or criminal history may preclude one from qualifying.  Still, credit for the entire length of residency represents a major boon for 237(a)(1)(H) waiver recipients.

 Besides citizenship, if otherwise eligible, a 237(a)(1)(H) waiver beneficiary may be able to file petitions for family members waiting to come to the U.S.  It is common for persons who committed fraud to suffer decades of separation from spouses or children due to the fraud.  The approval of the 237(a)(1)(H) waiver promises an end to that interminable separation.  A waiver recipient can petition his or her family to join him or her in the U.S. upon approval.   Petitions can be filed for spouses and children immediately. 

It is critical to ensure a petition is filed for any children nearing the age of 21 and to take other measures to protect these children from “aging-out.”  The filing of the afore-mentioned citizenship application can work in tandem with the petitions to afford maximum protection.  Upon approval of citizenship, any children under the age of 21 with petitions filed on their behalf will have their ages forever frozen under 21 under the Child Status Protection Act.  However, there may also be times that a better strategy would be to have a child remain in the category unmarried child of a lawful permanent resident.  It may even be advisable to defer applying for citizenship.  Again, consultation with an experienced & knowledgeable immigration lawyer is essential to determine the best way to proceed.  In cases where petitions were already filed, whatever government body has custody of the petitions should be immediately notified of the 237(a)(1)(H) waiver approval as well.  This could avoid an unnecessary denial of the petition (which could result because the agency is aware of the fraud but not the waiver).  

 A 237(a)(1)(H) waiver is an incredible relief for persons who obtained their lawful permanent resident status through fraud.  The approval of the waiver allows the immigrant to breathe free of the constant fear of discovery and deportation.  It also opens doors previously closed to them, such as U.S. citizenship and reunification with loved ones through the petitioning family members. It can mark the beginning of a new chapter in the lives of the immigrant and his family members.