Court Rules Against USCIS in Misrepresentation Waivers

By Attorneys Robert L. Reeves and Jeremiah Johnson

Its no secret that sometimes an immigrant obtains immigrant status through misrepresentations. Sometimes the misrepresentations are innocent; sometimes they are not. In either case, if the Government discovers the misrepresentation, it is likely that the Government will place the immigrant in removal proceedings. Normally, the immigrant can apply for a waiver of misrepresentation and if granted can proceed to naturalize and become a United States citizen. Until last week, the Government would sometimes argue that the immigrant lacked a valid visa at the time of admission and the waiver of misrepresentation could not cure this ground of deportation. However, on September 6, 2006, the Board of Immigration Appeals (BIA), in Matter of Fu, held that a waiver for misrepresentation under Section 237(a)(1)(H) of the Immigration and Nationality Act (INA) not only cures the misrepresentation but also cures an invalid visa as a result of the misrepresentation made at the time of admission.

The facts in Matter of Fu are not uncommon. Mr. Fu entered the United States based on the visa petition filed by his father. However, his father passed away before his entry causing the visa petition to be automatically revoked. Mr. Fu did not attempt to reinstate the visa petition; rather he used the visa petition to enter the United States as an immigrant. Because Mr. Fu’s visa was not valid at the time of his admission to the United States, he was placed in removal proceedings and faced deportation. He applied for a waiver Congress named: “Waiver authorized for certain misrepresentations” found at INA § 237(a)(1)(H).

Before the Immigration Court, and later the BIA, the Government argued that Mr. Fu could not avail himself of this waiver because Mr. Fu is not removable for the misrepresentation; rather he is removable because he did not possess a valid visa at the time of his entry. True, the name Congress gave to section 237(a)(1)(H) of the Act implies that the waiver cures certain misrepresentations, and Mr. Fu was not charged with misrepresentation. However, the Act is clear that the waiver “shall also operate to waive removal based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation.”

The BIA did not agree with the Government’s argument. Matter of Fu held that INA § 237(a)(1)(H) not only cures certain misrepresentations, but also cures an invalid visa as a result of the misrepresentation made at the time of admission. Moreover, the waiver is available whether the misrepresentation was innocent or not. Looking at the language of INA § 237(a)(1)(H) and to the legislative history, the BIA concluded that Congress authorized a waiver for the “additional ‘grounds of inadmissibility directly resulting from such fraud or misrepresentation’ that are subject to the waiver.”

Although the waiver can provide relief for immigrants facing removal, it is not automatic. To be eligible, the immigrant must be a spouse, parent, son or daughter of a United States citizen or lawful permanent resident. The immigrant will also need to establish he merits a favorable exercise of discretion based on such factors as family ties within the United States; residence of a long duration in this country; evidence of hardship to the immigrant or his family if deportation occurs; a stable employment history; the existence of property or business ties; evidence of value and service to the community; and other evidence of the immigrant’s good moral character.

It is important to note that the 237(a)(1)(H) waiver is not available to an immigrant who is placed in removal proceedings if he is returning to the United States from oversees. An immigrant facing charges of inadmissibility, rather than deportation, must apply for a waiver of inadmissibility under INA § 212(i). Although Matter of Fu focused on the language and legislative history of INA § 237(a)(1)(H) and the holding may not apply to waivers under INA § 212(i); nevertheless, the reasoning behind the waiver may.

Misrepresentations, whether innocent or not, carry serious immigration consequences. It is important to seek the advice of an experienced and knowledgeable attorney to determine whether these consequences can be waived.