Waivers for Misrepresentation In Immigration Court

It’s 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.  Fortunately, under the Immigration and Nationality Act (“INA”), past lies, fraud or misrepresentations can be forgiven or corrected by a waiver under INA § 237(a)(1)(H) .  However, simply submitting a waiver application is far from enough to ensure an approval.  As with applying for any immigration benefit, an immigrant should be prepared to rise far above the minimum and submit a well-documented and voluminous application and be prepared to testify as to why he should receive a waiver for a prior misrepresentation.

An INA 237(a)(1)(H) waiver is for immigrants who already have their green cards. For example, an adult beneficiary of a petition filed by a permanent resident parent has to wait for many years for his petition to become current.  If an alien marries before getting a green card, the petition becomes invalid the alien loses the chance to come to the United States.  Yet, it is hard to put a life on “hold” for ten or more years.  Many people facing this situation marry and have children while waiting. When informed that the petition based on being single became current, some find it impossible to give up the dream of coming to America.  An alien in that position sometimes lies to the U.S. Consulate about their marital status and the existence or legitimacy of any children and obtains their green card as the single son or daughter of a permanent resident.  A waiver under INA § 237(a)(1)(H) can help this person cure the original fraud and allow them to move on with their life.

Specifically, the law states that the misrepresentations may be waived, and the invalid visa as a result of the misrepresentation made at the time of admission is cured. 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 Board of Immigration Appeals concluded that Congress authorized a waiver for the “additional ‘grounds of inadmissibility directly resulting from such fraud or misrepresentation’ that is subject to the waiver.”  The waiver is available to immigrants who are the spouse, parent, son or daughter of a citizen of the United States or of an alien lawfully admitted for permanent residence.  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 service to the community; and other evidence of the immigrant’s good moral character.

What makes a waiver under INA § 237(a)(1)(H) unique is that an immigrants can only apply for a waiver in removal proceedings before an Immigration Judge.  As such, the immigrant must be facing deportation, which not only can be scary, but is also complicated.  Fortunately, an immigrant has a right to an attorney in removal proceedings to assist them in preparing a well documented and approvable waiver application and prepare the client and other witnesses to testify in court to support the client’s waiver application. It is also important to note that because the waiver cures the original ground of inadmissibility, if granted, the immigrant can then proceed to naturalize and become a United States citizen and petition his family. 

Reeves & Associates has successfully represented hundreds of immigrants with INA § 237(a)(1)(H) waivers before the immigration courts.  As with any court case, it is necessary to present sufficient documentary evidence and oral testimony to convince the Immigration Judge that the alien is eligible and deserving for that relief.  The evidence must clearly convince the Immigration Judge that the alien meets all the elements for the relief as set forth in the Immigration and Nationality Act. The alien must also convince the Court to exercise favorable discretion and grant the relief by presenting sufficient evidence to show the Judge why, despite having lied, he or she should be given a second chance at a life in America.  For more information on waivers for misrepresentation and representation in immigration court make sure to watch the next episode of “The Immigration Experts” or visit online at www.immigrationexperts.tv.