INTRODUCTION:
A US Fraud waiver is a form of relief that allows certain US immigrants who are inadmissible to the United States for fraud or willful misrepresentation to obtain a US immigrant visa or a Green Card. Fraud or willful misrepresentation is a situation where an immigrant conceals material facts to gain immigration benefits like; a visa, a green card, or maybe citizenship.
Any alien who, by fraud or wilful misrepresentation of material fact, seeks to procure a visa, or has obtained any documentation or admission to the United States, or tries to avail of any benefits becomes inadmissible under the US Immigration and Nationality Act (INA).
In this blog, we will explain what a fraud waiver is, who can apply for a US fraud waiver, how to apply for it, and what happens after one applies for a US fraud waiver.
UNDERSTANDING WHAT A US FRAUD WAIVER IS:
If you are applying for a US immigrant visa to the United States, you may be denied the same if you are found inadmissible for fraud or willful misrepresentation. Thus, making it clear that you have hidden or lied about certain material facts to obtain immigration benefits.
However, if you meet certain thresholds, you may be eligible for a waiver of inadmissibility. Here are a few examples of circumstances that are considered as wilful misrepresentation:
- Producing or using documents that have been altered. E.g., birth certificate, marriage certificate, etc.
- Falsification of identity, criminal history, marital status, health, etc.
- Claims of being a US citizen while not being one.
- Failure to reveal pertinent information such as earlier visa denial (if any), deportation, etc.
The fraud or willful misrepresentation must be material. To elaborate, it must have a natural tendency to influence the decision of the immigration officer or consular officer. It does not matter whether the officer actually relied on the false or misleading information or not.
ELIGIBILITY TO APPLY FOR A WAIVER OF INADMISSIBILITY FOR US FRAUD OR MISREPRESENTATION?
Not everyone who is inadmissible for fraud or willful misrepresentation can apply for a us fraud waiver. The Immigration and Nationality Act provides a waiver only for certain categories of applicants who have a qualifying relative who would suffer extreme hardship if the applicant is denied admission to the United States. The qualifying relative must be either:
- A U.S. citizen or lawful permanent resident (LPR) parent or spouse
- A U.S. citizen fiancé(e) petitioner (for K-1 or K-2 visa applicants only)
- A Violence Against Women Act (VAWA) self-petitioner (who can claim extreme hardship to himself or herself, or to his or her U.S. citizen, LPR, or qualified noncitizen parent or child.
- U.S. citizens or LPR children are not qualifying relatives for this waiver.
HOW DO YOU APPLY FOR A WAIVER OF INADMISSIBILITY FOR FRAUD OR MISREPRESENTATION ?
Waiver of inadmissibility for fraud or willful misrepresentation or simply US fraud waiver requires the filing of the required form set forth by the U.S. Citizenship and Immigration Services (USCIS). You also need to pay the filing fee and submit supporting evidence to prove that:
- You have a qualifying relative who would suffer extreme hardship if you are denied admission to the United States
- You deserve a favorable exercise of discretion based on the totality of the circumstances
UNDERSTANDING THE CONCEPT OF EXTREME HARDSHIP
The law does not define extreme hardship. However, it means more than the normal hardship that your qualifying relative would experience if you were separated in order to avail of a US fraud waiver, you need to show that your qualifying relative would face severe difficulties in areas such as health, finances, education, family ties, etc., if you are denied admission to the United States or if he or she relocates with you to your home country.
DETERMINING FACTOR FOR A US FRAUD WAIVER or Misrepresentation?
Discretion is based on balancing positive and negative factors in your case. Positive factors may include your family ties in the United States, your contributions to society, your rehabilitation from past misconduct, your eligibility for other immigration benefits, etc. Negative factors may include the nature and seriousness of your fraud or willful misrepresentation, your criminal history, your immigration violations, your lack of respect for the law, etc.
You should be ready to submit any evidence that can support your claim of extreme hardship and discretion.
WHAT HAPPENS AFTER YOU APPLY FOR A US FRAUD WAIVER?
After submitting the form and supporting evidence to USCIS, you will receive a receipt notice confirming that USCIS has received your application. You may also receive a request for evidence (RFE) if USCIS needs more information. Response to any RFE should be done within the specified time frame.
USCIS will review the submitted application and decide based on the evidence and the corresponding law. USCIS may approve the waiver if it finds all the requirements are met, and the applicant warrants a favorable exercise of discretion. Furthermore, USCIS may deny the claim for fraud waiver if it finds that the requirements are unmet or that the applicant does not deserve a favorable exercise of discretion.
If USCIS approves the waiver application, it will notify the applicant and the Department of State (DOS) of its decision. You can then proceed with your US immigrant visa application at the U.S. embassy or consulate in your home country. If USCIS denies your waiver, it will notify you of its decision and the reasons for the denial. You may appeal the denial within 30 days of the decision date. You may also file a motion to reopen or reconsider the decision with USCIS within 30 days of the decision date.
CONCLUSION:
Application for a US fraud waiver or Misrepresentation is a challenging and complex method. This can be simplified by carefully considering the facts, proper documentation, and preparation. Hence, it is strongly advised to consult an experienced immigration attorney who can guide you through the labyrinth of the particular process and present a strong case to the USCIS.
Suppose you are good to go ahead with a waiver. In that case, you will likely overcome the factors catering to your inadmissibility, thus enabling you to achieve the dream of becoming an LPR of the United States.
