201603151154427510By Attorneys Devin M. Connolly & Nancy E. Miller

Countless people want to live in the United States.  It is, therefore, not surprising that people sometimes misrepresent facts in order to accomplish that goal.  These lies are told for an obvious reason – telling the truth would not get them an immigration benefit.  However, an immigration benefit obtained through a lie renders the alien removable.  If (or when) the Department of Homeland Security discovers the truth, they will take steps to deport the person to his native country.

An immigrant in this situation may be eligible to apply for a waiver of their prior misrepresentation pursuant to Section 237(a)(1)(H) of the Immigration and Nationality Act (INA).  And if the waiver is granted, and they are otherwise eligible, they will be able to apply for U.S. citizenship.

A waiver under INA 237(a)(1)(H) “forgives” the fraud and allows the alien to keep the green card if they are the spouse, parent, or son or daughter of a U.S. citizen or lawful permanent resident (LPR) and can meet the requirement of showing that the equities in their case outweigh the liabilities.  This balance is called “favorable exercise of discretion”.  The fraud or misrepresentation must be of a material fact that was made in connection with the attempt to obtain a visa or green card.  The applicant must be “otherwise-admissible” to the U.S., but-for the material misrepresentation.  This means that the immigrant will not be eligible for the waiver if they are inadmissible for reasons in addition to the fraud, such as criminal convictions. The waiver may be granted whether the misrepresentation was made at the U.S. Consulate or a Citizenship & Immigration Service (CIS) Office.

The Board of Immigration Appeals (BIA) has said that a person may be eligible for the waiver even if they got their green card through a sham marriage.  A “sham marriage” is a marriage entered into solely for the purpose of obtaining a green card. The qualifying relative, however, may not be the spouse from the sham marriage.

Many other circumstances exist for which this waiver may be appropriate.  A common scenario involves a prospective immigrant who has been petitioned by an LPR parent who marries before the priority date becomes current.  That petition is denied or revoked as a matter of law immediately upon the marriage – whether CIS is told about the marriage or not.  Even if the parent is a USC, many years can be added to the wait-time.  The prospective immigrant wants their spouse and their green card so they lie at the time of the interview and say they are single.  Clearly, the green card was obtained through fraud.  A 237(a)(1)(H) waiver can cure the original fraud and allow the person to keep their green card – which be valid back from the date it was issued.

A less common scenario involves one whose Immigration Court case was administratively closed.  When he becomes eligible to obtain a green card, he lies and claims he was never in Court.  CIS has no authority to grant the green card but it does not know that.  So the green card that the immigrant obtained through fraud is worthless and he needs the waiver.

When applying for the waiver an immigrant must 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 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.  The Immigration Judge will balance these positive factors against any negative factors in an immigrant’s case.  These negative factors may include the original fraud or misrepresentation, any criminal activity, or any other evidence of the immigrant’s lack of good moral character.  In the end, the immigrant must demonstrate that the positive factors in their case outweigh the negative ones. A well-documented waiver application and persuasive testimony at the court hearing are essential to a successful outcome.

And, yes, I did just say court.  A waiver under INA § 237(a)(1)(H) may only be applied for in Immigration Court.  With so much riding on the end result, it is important to retain a knowledgeable immigration attorney who is experienced in these types of waivers.  And what is the end result?  After being granted the waiver, the immigrant can go on to successfully apply for U.S. citizenship.  That is a successful outcome.

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