Misrepresentation at Entry: Applications for I-601 Waiver Subject to Strict Scrutiny

Yearly, Immigration and Naturalization Service deports thousands of aliens who entered the United States through misrepresentation or fraud. Examples of such misrepresentation include the use of false passports, visas or even the failure to disclose marital status or children.

Discovery by the INS of an alien’s misrepresentation usually happens at the alien’s “green card” interview. When discovered, the INS officer will inform the alien of the availability of an I-601 waiver (pardon) for this particular violation of immigration law.

Under section 212 (I) of the Immigration Act a waiver is available for a fraudulent, or material misrepresentation by filing an I-601 application with supporting documents. However, harsh new enforcement procedures have the INS denying such applications at an alarming rate.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) created severe eligibility requirements for an alien seeking a waiver of inadmissibility relating to fraud or material misrepresentation. As a result of these modifications the alien now bares the burden of proving several essential factors before the INS will approve a request for a waiver. An alien seeking a waiver must now take into consideration many new elements, including; whether there is a qualifying relative and the existence of extreme hardship.

A waiver for misrepresentation at entry is authorized only for an immigrant who is the spouse, son, or daughter of a U.S. citizen or permanent resident. These relationships are the only qualified relatives permitted for the alien seeking a waiver. Immigrants who are the parents of citizens or lawful permanent residents no longer qualify for consideration.

The applicant must also demonstrate that refusal of his or her admission would result in “extreme hardship” to the qualifying relative. The burden of proving such hardship rest with the alien and is shown by submission of documentary evidence to the INS. What is “extreme hardship” is a difficult concept but guidance was given in the case of In Re Luis Cervantes-Gonzalez. In that decision the court set out some of the factors the INS should consider in determining whether an alien has established extreme hardship sufficient to qualify for a waiver. Those factors included:

1. Qualifying relative’s family ties outside the United States,

2. 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,

3. The financial impact of departure from this country,

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

At Reeves and Associates we are experienced in taking on the challenge of applying for and receiving an I-601 waiver.

In addition, we are fortunate that some of our staff were formerly emplyed at INS and was responsible for interviewing and making decisions on adjustment of status and I-601 waiver applications. This experience gives us unique insight into the INS processing procedures and an advantage that contributes to our client’s receiving the best possible representation.