Obtaining Waivers of Prior Misrepresentations

By Devin Connolly and Nancy Miller

People sometimes misstate reality so that they may enter the United States.  The misrepresentation may go to the heart of their application or it may be less closely related to their request.  If it is directly related to their application for admission, it is called a material misrepresentation.  Making a material misrepresentation is a ground for inadmissibility.  Having been found after admission to have made such a claim for admission is a ground for removability.  When the Department of Homeland Security discovers the misrepresentation, they are likely to place the immigrant in Removal Proceedings (Immigration Court) and attempt to remove them from the United States.

An immigrant that has been placed in Removal Proceedings may have an opportunity to have their prior misrepresentation waived, thereby allowing them to remain in the U.S. and potentially even become a U.S. citizen.  Section 237(a)(1)(H) of the Immigration and Nationality Act (“INA”) states that a person who was granted permanent resident status through the commission of fraud or material misrepresentation may have their prior actions waived if they are the spouse, parent, or son or daughter of a U.S. citizen or lawful permanent resident, and if they were in possession of an Immigrant Visa or equivalent document at their time of admission and was otherwise admissible to the U.S., except for the material misrepresentation.  In short, INA § 237(a)(1)(H) allows an Immigration Judge to forgive a person’s prior lies or misrepresentation and let them keep their green card.

It is important to note that an INA § 237(a)(1)(H) waiver is only available for people who have already been granted permanent resident status.  Perhaps the most common scenario under which a person requires this type of waiver is when a prospective immigrant’s parent files a petition for them, but before immigrating to the U.S., the person enters into a valid marriage.  However, they are still not willing to forego their dream of entering the U.S.  For that reason, recognizing they are now ineligible to enter the U.S. because of their marriage, they lie during the immigrant visa process and say that they are not married.  They may also deny the existence of their children.  The prospective immigrant is then granted permanent resident status as the single son or daughter of a permanent resident, but only on the basis of their prior misrepresentation.  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.  

In addition to establishing that they have a required qualifying relative (U.S. citizen or permanent resident spouse, parent, son or daughter), an immigrant must also demonstrate that they deserve a favorable exercise of discretion.  The factors that an Immigration Judge may consider when making their decision include the immigrant’s family ties within the United States, the length of their residence in this country, whether the immigrant or any family members would suffer a hardship if the immigrant was forced to return to his or her native country, the immigrant’s employment history, the existence of any property or business ties, evidence of value or service to the community, as well other evidence of the immigrant’s good moral character.  In addition, the Immigration Judge will also take into account the negative factors in an immigrant’s case.  These factors may include the nature and circumstances of the fraud or misrepresentation involved (including how many times the person misrepresented the truth), the nature, seriousness and recency of any criminal activity, and any additional evidence of the immigrant’s lack of good moral character or undesirability as a permanent resident.  In the end, the immigrant must demonstrate that the positive factors in their case outweigh the negative ones.

There mere submission of a wavier application with minimal supporting documents will not result a decision in an immigrant’s favor.  Rather, as when applying for any immigration benefit, an immigrant should submit a waiver package that is well-documented and persuasive.  In addition, because this is a court trial, the immigrant, his qualifying relatives and other witnesses with relevant information must testify in open court.    

For most people, this will be their only experience before a judge of any sort.  It is important to be properly prepared to testify in court. Answering the question that is asked as opposed to the question you want them to ask and giving enough information to truly answer the question without going off on a tangent does not come naturally. In addition, balancing the presentation of positive and negative information in an effective manner is best placed in the hands of an experienced and competent attorney who specializes in immigration law.  An excellent attorney will be able to maximize their chance of success.