Misrepresentation Waivers – How To Apply for a 212(i) Waiver

Filling out applications for immigration benefits can be a difficult and stressful experience. It is not uncommon to make mistakes or to misrepresent certain information – whether it is on purpose or not. Every year, many people find out when they visit a consulate or an immigration officer that they have been found to have misrepresented information or to have committed fraud, and thus will no longer be able to obtain an immigration visa or a green card. Under Immigration and Nationality Act (“INA”) § 212(a)(6)(C)(i), noncitizens who seek to procure, has sought to procure, or procured any benefit under the INA by fraud or willful misrepresentation of a material fact, is inadmissible to the United States. Fortunately, these individuals can still apply for a 212(i) waiver to have the fraud or misrepresentation waived so they can remain eligible for immigration benefits.

Who Can Get a 212(i) Waiver?

An immigration officer makes the assessment as to whether an applicant is eligible for a waiver. Generally, an applicant must meet the following requirements before a waiver can be granted:

The applicant must show that denial of admission to or removal from the United States would result in extreme hardship to his or her qualifying relative (or if the applicant is a VAWA (Violence Against Women Act) self-petitioner, to himself or herself)); and

The applicant must convince the immigration officer to use their discretion in the applicant’s favor

What is a qualifying relative?

A qualifying relative is a relative of the applicant who is either:

A U.S. citizen parent or spouse;
A Lawful Permanent Resident (Green-card holder) parent or spouse; or
A U.S. citizen fiancé(e) petitioner (for K-1 or K-2 visa applicants only)

Note that a VAWA self-petitioner does not need to have a qualifying relative. Although they may apply while claiming an extreme hardship to a U.S. citizen, LPR, or a qualified alien parent or child, they can also qualify by claiming extreme hardship to themselves.

What is an “extreme hardship?”

A finding of extreme hardship is based on a totality of circumstances that takes into account any factors, arguments, and evidence provided by the applicant, as well as outside information such as country conditions as reported by the U.S. Government.

USCIS notes that common consequences of denying admission are not, in and of themselves, enough to warrant a finding of extreme hardship. These “common consequences” include:

Family separation;
Financial hardship;
Any difficulties associated with getting adjusted to life in the new country;
Wanting superior educational opportunities in the U.S.;
Inferior quality of medical services and facilities; and
Whether your specific career is feasible in another country.

Instead, USCIS looks to more specific hardships. Below, we have recreated a chart (with modifications) from USCIS that describes the factors and considerations that could lead to a finding of extreme hardship.

Factors	Considerations
Family Ties and Impact	Qualifying relative’s ties to family members living in the United States, including age, status, and length of residence of any children. Responsibility for the care of any family members in the United States, particularly children, elderly adults, and disabled adults. The qualifying relative’s ties, including family ties, to the country of relocation, if any. How the loss of the applicant’s relationship would impact the qualifying relative. Qualifying relative’s age. How long the qualifying relative has lived in the United States. Whether the qualifying relative ever lived in the country of relocation and, if so, for how long. Qualifying relative’s past or current military service. Cognitive, social, or emotional effect on a qualifying relative who would replace the applicant as caregiver for someone else, or impact on the qualifying relative (for example, child or parent) for whom such care is required.
Social and Cultural Impact	Loss of access to the U.S. courts and the criminal justice system, including the loss of opportunity to request or provide testimony in criminal investigations or prosecutions; to participate in proceedings to enforce labor, employment, or civil rights laws; to participate in family law proceedings, victim’s compensation proceedings, or other civil proceedings; or to obtain court orders regarding protection, child support, maintenance, child custody, or visitation. Fear of persecution or societal discrimination. Prior grant of U nonimmigrant status. Whether the qualifying relative would be punished for being seen as too American or too Western. Access or lack of access to social institutions and structures (official and unofficial) for support, guidance, or protection. How characteristics such as gender, gender identity, sexual orientation, religion, race, national origin, ethnicity, citizenship, age, political opinion, marital status, or disability could be a detriment in the country of relocation. Qualifying relative’s community ties in the United States and in the country of relocation. The level of the qualifying relative’s integration into U.S. culture. Difficulties the qualifying relative would have if relocated to another country. If the qualifying cannot relocate, they will consider difficulties in keeping contact or visiting. Difficulties the qualifying relative would face based on language differences between the U.S. and the country of relocation. Availability and quality of educational opportunities for qualifying relative (and children, if any) in the country of relocation. Availability and quality of job training, including technical or vocational opportunities, for qualifying relative (and children, if any) in the country of relocation.
Economic Impact	Economic impact of applicant’s departure on the qualifying relative, including the applicant’s or qualifying relative’s ability to obtain employment in the country of relocation. Economic impact resulting from the sale of a home, business, or other asset. Economic impact resulting from having to abandon a profession. Decline in the standard of living, including due to significant unemployment, underemployment, or other lack of economic opportunity in the country of relocation. Ability to recoup losses, or repay student loan debt. Cost of extraordinary needs, such as special education or training for children. Cost of care for family members, including children and elderly, sick, or disabled parents.
Health Conditions and Care	Any present health conditions and how available quality care for those conditions is. Psychological impact on the qualifying relative either because of separation or due to having to leave the U.S.. Psychological impact on the qualifying relative due to applicant’s suffering. How prior traumas may impact/worsen additional traumas from separation or having to leave the U.S.
Country Conditions	Conditions in the country of relocation (whether caused by natural disasters, financial disasters, civil unrest, war, etc. Temporary Protected Status (TPS) designation for the country of relocation Whether U.S. government workers stationed in the country of relocation receive hazard pay. Withdrawal of Peace Corps from the country of nationality for security reasons. DOS Travel Warnings or Alerts, whether or not they constitute a particularly significant factor.

What will an immigration officer consider as part of their discretion?

An immigration officer must balance the positive and negative factors for each applicant for a waiver and determine if the applicant should get the waiver. They generally consider the following:

The facts and circumstances surrounding the fraud or willful misrepresentation;
The applicant’s reasons and motivations at the time the fraud or willful misrepresentation was committed;
The applicant’s age or mental capacity at the time the fraud was committed;
Whether the applicant has repeatedly committed fraud or willfully misrepresented facts; and
The nature of the proceedings in which the applicant committed the fraud or willful misrepresentation.

The above list is not exhaustive, and officers are free to consider other facts before them.

How to Apply for a Waiver

In order to apply for a waiver, an applicant who is not already in removal (i.e. deportation) proceedings must file a Form I-601, Application for Waiver of Grounds of Inadmissibility. This is a general form used to seek a waiver for many different grounds of inadmissibility. Make sure to indicate on the first page that you are seeking a waiver due to inadmissibility under 212(a)(6).

An applicant already in removal proceedings may apply for a 212(i) waiver as a defense to removal.

The 212(i) waivers are discretionary, which means that immigration adjudicators will weigh positive and negative factors in an applicant’s particular case when deciding whether or not to rule in his or her of favor. Qualified immigration law practitioners such as Ashkan Yekrangi and his team can ensure that you present your strongest case to adjudicators, and therefore, have your best chance at obtaining a 212(i) waiver.

Obtaining a waiver for fraud or willful misrepresentation is a challenging process but having respectable legal professionals by your side can make all the difference. Contact an immigration attorney at Yekrangi & Associates today.

Misrepresentation Waivers – How To Apply For A 212(i) Waiver

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