Board of Immigration Appeals Sets Standards for Waiver of Fraudulent Entry

Entering the United States through misrepresentation or fraud is one of the most common grounds through which the Immigration and Naturalization Service deports/removes tens of thousands of aliens. Generally, these aliens enter the United States by submitting fake or fraudulent documentation and entering under a different name.

Under section 212(a)(6)(C) of the Immigration and Naturalization Act (INA), the INS has the authority to remove an alien if they find he or she has obtained or attempted to obtain any immigration benefit, including a visa or admission to the U.S., by fraud or misrepresentation. However, under section 212(i) of the Act, the INS may also waive the misrepresentation. Discovery of the alien’s misrepresentation usually occurs at the time of the alien’s “green card” interview. At that time, if eligible, the alien must file a form I-601 with supporting documentation, which must be separately adjudicated. If granted, the waiver will allow the alien to become a lawful permanent resident despite the prior fraud or misrepresentation.

The waiver is available only if the person is the spouse or son or daughter of a United States citizen or a lawful permanent resident and only if the alien can establish extreme hardship to the citizen or permanent resident spouse or parent. It is important to note that having U.S. citizen or lawful permanent children does not qualify the alien for the waiver.

The difficult part is meeting the requirement of showing extreme hardship. For the past few years, the INS has not had any established standard on which to base “extreme hardship” determinations. In the recent case of In Re Luis Cervantes-Gonzales, the Board of Immigration Appeals set out the factors that the INS must use in determining whether an alien has established extreme hardship sufficient to qualify for a waiver. The court gave the following as essential to a finding of “extreme hardship” but is not limited to the following:

1. The presence of lawful permanent resident or United States citizen family ties to this country;

2. The qualifying relative’s ties outside the United States;

3. The conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to such countries;

4. The financial impact of departure from this country;

5. Significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate.

Aliens who have entered the United States by misrepresentation now have the benefit of the guidelines described above to measure whether they possess the requisite “extreme hardship”, but whether you qualify and what documentation you must submit for the 212(i) waiver is still a complex issue that requires the expertise of an experienced immigration law lawyer. If you will require a waiver for your case or if your waiver is still pending, please consult an immigration law expert before you blindly entrust yourself to the INS.