Under US immigration laws and regulations, persons seeking entry can be denied entry if they commit fraud by making false statements. False statements or other fraud are grounds for inadmissibility. Likewise, a person in the US can be deported if it is determined that the person committed fraud by making a false statement.
However, Congress has established that, under some circumstances, fraud of this sort can be waived by US immigration services for deportation. This is called the § 237(a)(1)(H) waiver. Congress intended this to be a "humanitarian waiver."
When deportation proceedings are begun, a person seeking the § 237(a)(1)(H) waiver must ask for the waiver from the immigration judge. That is, there is no immigration form to be filed. Rather, the request is a legal issue directed to the immigration judge. Note that a § 237(a)(1)(H) waiver is different from various other waivers that can be obtained from the immigration services by filing, for example, a Form I-485, a Form I-601 or seeking what is called a 212(i) waiver.
To be eligible for the § 237(a)(1)(H) waiver from deportation based on fraud, a person must meet these requirements:
- Have a qualifying family member who is a citizen or lawful permanent resident
- At the time of entry, had a visa or equivalent document at the time of admission (even if said visa was obtained by fraud)
- Was otherwise admissible at the time of admission
Whether to approve a § 237(a)(1)(H) waiver is entirely within the power of the immigration judge. According to case law, an immigration judge must look to various facts and factors that are both positive and negative including these:
- Nature and seriousness of the fraud
- Whether the alleged fraud meets the legal standards for fraud including materiality, willfulness, etc.
- Whether there is more than one instance of fraud or a pattern of fraudulent behavior
- Underlying circumstances that led the person to commit the fraud
- Does the person have a criminal record and of what level of seriousness?
- How recent is any criminal record?
- Other evidence related to lack of good moral character -- fraud being on indication of lack of moral character
- Family ties in the US
- Length of residency in the US
- Employment record in the US
- Other ties to the US like ownership of property. licensures, educational and professional achievements and more
- Evidence of community service and stature in the person's US community
- Other evidence of good moral character
- And more
We can see how the § 237(a)(1)(H) waiver works in practice by taking a brief look at the case of INS v. Yueh-Shaio Yang, 519 US 26 (US Supreme Court 1996). In that case, the US Supreme Court approved denial of a § 237(a)(1)(H) waiver for several reasons including that fact that the person seeking the waiver committed three acts of fraud: participating in a sham divorce with his wife to facilitate her unlawful entry into the US, various false statements made on his own application for naturalization and participation in a second sham divorce to assist his wife in obtaining an immigrant visa under her real name. The Supreme Court held that it was lawful for the § 237(a)(1)(H) waiver to be denied to an applicant who engaged in a pattern of immigration fraud.
Contact Yekrangi & Associates Today
For more information, contact the Orange County Immigration Attorneys at Yekrangi & Associates today. You are not alone and we will fight for you. Yekrangi & Associates works to meet a higher standard. Our first goal is your satisfaction. Contact us at (949) 478-4963 to schedule a consultation or complete our convenient “Get Your Consultation” form here. We are located in Irvine, California.