Immigration Fraud & Waivers

Immigration Fraud

The immigration laws of the United States provide for severe penalties, including potential lifetime exclusion from the United States, for those who try to procure immigration benefits through fraud or misrepresentation. Examples of immigration fraud or misrepresentation include using a false name, date of birth, or marriage fraud to obtain a visa or entry into the United States or change/adjustment of status.

Even a seemingly minor false statement can adversely impact your employment, personal relationships and even result in a loss of freedom. Therefore, it is essential for you to be aware of the contours of immigration-related fraud and applicable penalties.

Section 212(a)(6)(C)(i) of the Immigration and Nationality Act (“INA”) states:

Fraud or Misrepresentation. Any alien who, by fraud or by willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act, is inadmissible.

This law prohibits the following four (4) actions:

  • The procurement or attempted procurement of a visa, by fraud or willfully misrepresenting a material fact;
  • The procurement or attempted procurement of other documentation, by fraud or by willfully misrepresenting a material fact;
  • The procurement or attempted procurement of admission into the United States, by fraud or misrepresenting a material fact;
  • The procurement or attempted procurement of other benefits under the Act, by fraud or misrepresenting a material fact.

In this regard, please note how case law defines “fraud” and “material misrepresentation.” In practice, however, there is little differentiating both terms.

According to the Board of Immigration Appeals (BIA) decision in Matter of G-G-, 7 I&N Dec.161 (BIA 1956), fraud requires the foreign national to have made a “false representation of a material fact with knowledge of its falsity and with the intent to deceive” the government. In addition, the government must have believed such false information and have acted upon it.

In contrast, a misrepresentation is essentially an outright lie, half-truth, or fabrication made by the foreign national in order to obtain an immigration benefit. Matter of Kai Hing Hui, 15 I&N Dec. 288 (BIA 1975) defines misrepresentation “as an assertion or manifestation that is not in accordance with the facts.” In order to qualify as a material misrepresentation, the foreign national must make a false misrepresentation of a fact that is relevant to procuring an immigration benefit. Unlike fraud, there is no requirement for the foreign national to have the intent to deceive, nor is it required that the government officer believe and act upon such a misrepresentation.

If you, or someone you know, were denied any immigration benefit on account of immigration fraud, please call us for a consultation regarding your case. It is important to recognize that a denial of your visa or other benefit does not necessarily mean that all your options have been foreclosed. An experienced attorney from our firm can analyze your situation on whether your case falls within the meaning of “fraud” or “material misrepresentation” as defined in the INA.

INA 212(i) Waivers of Inadmissibility:

Waivers are a legal term for seeking forgiveness from the government for any fraud or misrepresentation that has rendered the foreign national ineligible to procure an immigration benefit.

According to the law, the foreign national can qualify for a waiver of his or her ineligibility only if:

  1. The alien “is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence” and
  2. If it is established that refusal of the admission would result in extreme hardship to the alien’s citizen or permanent residence spouse or parent.

Although the foreign national has a high burden for establishing extreme hardship, approval of a waiver application means that an alien will be able to obtain a visa, adjust status or procure any other immigration benefit despite the fraud or misrepresentation.

Thoroughly drafting a comprehensive waiver application, in addition to proving “extreme hardship,” can be extremely challenging. At Boone Beale we are well aware of the challenges that foreign nationals face when confronted with such daunting tasks, which is why it is important for you to seek competent counsel regarding your case.

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