Fraud waiver for aliens seeking admission to U.S.

by Atty. Emmanuel Samonte Tipon 

There is hope for aliens who have been denied admission to the United States because they committed fraud or misrepresentation of a material fact in seeking to procure or had procured a visa, other documentation, or admission to the United States or other benefit provided by the immigration law. Such aliens may seek a waiver of inadmissibility pursuant to Section 212(i) of the Immigration and Nationality Act (INA).

Examples of such fraud are (1) making false statements or concealing material facts in an application for a visa, such as marital status, existence of children, criminal history, or other matters that would render the alien inadmissible if disclosed, (2) impersonating an alien who is the beneficiary of an approved visa petition, (3) falsely representing that a person is the alien’s minor child and including such child as a derivative beneficiary, (4) falsely representing that the alien’s illegitimate child is also the petitioning spouse’s child, (5) using another person’s green card to enter the United States, (6) using another person’s U.S. passport to enter the U.S., (7) using a fake green card, (8) using a fake U.S. passport, (9) obtaining a fake U.S. birth certificate with the intent of procuring a U.S. passport.

The requirements for a waiver under Section 212(i) are: (1) the alien is the spouse, son, or daughter of a U.S. citizen or Lawful Permanent Resident (LPR), and (2) the refusal of admission to the alien would result in extreme hardship to the alien’s spouse or parent (qualifying relative). 

EXTREME HARDSHIP

The most difficult requirement to hurdle is to establish that the refusal of admission to the alien would result in “extreme hardship” to a qualifying relative.  The Board of Immigration Appeals stated in Matter of Cervantes, 22 I&N Dec. 560, Interim Decision 3380, March 11, 1999, that “extreme hardship is not a definable term of fixed or inflexible meaning, and the elements to establish extreme hardship are dependent upon the facts and circumstances of each case.” A court pointed out that extreme hardship is hardship that is “unusual or beyond that which would normally be expected” upon deportation. Perez v. INS, 96 F.3d 390 (9th Cir. 1996). “The common results of deportation are insufficient to prove extreme hardship.” The uprooting of family and separation from friends does not necessarily amount to extreme hardship but rather represents the type of inconvenience and hardship experienced by the families of most aliens being deported. The Attorney General or his delegates have the authority to exercise discretion in granting a waiver. They have construed “extreme hardship” narrowly.

The factors deemed relevant in determining extreme hardship to a qualifying relative include, (1) the presence of lawful permanent resident or United States citizen family ties to this country; (2) the qualifying relative’s family ties outside the United States; (3) 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; (4) the financial impact of departure from this country; and, finally, (5) significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.

FORM AND EVIDENCE

An alien seeking a waiver should fill up USCIS Form I-601 with supporting documentation to establish the qualifying relationship and the extreme hardship. The form should be submitted to the proper USCIS office indicated in the instructions together with the required fee. 

COMMENT:  A waiver of inadmissibility under Section 212(i) is similar to the waiver of removability under Section 237(a)(1)(H) of the INA for aliens who succeeded in entering the United States and who committed fraud or misrepresentation of a material fact in seeking to procure or have procured a visa, other documentation, or admission to the United States or other benefit provided by the immigration law and who are thus removable. We have written an annotation on this subject that will soon be published. 

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 792-3051. Cell Phone (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication.)