Monday, December 1, 2008
What is a 212 (i) waiver?
Section 212(i) of the Immigration and Nationality Act (INA) provides a discretionary waiver for immigrants who are subject to a ground of inadmissibility based on fraud or misrepresentation in procuring or attempting to procure an immigration benefit.
This type of waiver commonly arises when a foreign national uses anotherвЂ™s passport to enter the United States or when a foreign national gives false information to an immigration official or on an immigration application form. Specifically, the statute states that a misrepresentation is made when any alien who, by fraud or 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.
What are the eligibility standards?
When an immigrant applies for a 212 (i) waiver, they must have a вЂњqualifying relativeвЂќ and convince the U.S. Citizenship and Immigration Services (USCIS) that if they are not granted lawful permanent resident status, then their qualifying relative will suffer extreme hardship.
A qualifying relative is the applicantвЂ™s U.S. citizen or lawful permanent resident spouse or parent. A U.S. citizen or lawful permanent resident child cannot be used as a qualifying relative, except in domestic violence cases.
Also, in the recent case of Matter of Federisco, the Board of Immigration Appeals held that a deceased relative cannot be used as a qualifying relative in the waiver context.
Who is not eligible for a 212(i) waiver?
It is important to remember that only foreign nationals who make misrepresentations or use fraud to secure a visa, admission, or some other benefit under the INA are excludable under this section. This section of the law does not apply to those who make misrepresentations in other contexts, such as to obtain employment or Social Security cards.
The В§212(i) waiver is not available to immigrants who make false claims to U.S. citizenship, unless the false claim was made before September 30, 1996. It is also unavailable to those immigrants who have a final order for document fraud in violation of INA В§274C.
What is extreme hardship?
In Matter of Cervantes, the leading case in this area, the BIA recognized that extreme hardship is not вЂњa definable term of fixed and inflexible meaning.вЂќ Instead, the BIA stated that the elements to establish extreme hardship are dependent on the facts and circumstances of each case. USCIS should take the following into consideration in assessing extreme hardship to a qualifying relative:
Hardships can be emotional, psychological, or even financial. However, even if an applicant makes a showing of extreme hardship to a qualifying relative, USCIS may decide to grant or deny the waiver as a matter of discretion, which requires balancing all factors, including the fraud.
Where do I apply?
There are three places where a В§212(i) waiver application can be filed: (1) in connection with an adjustment of status application; (2) in connection with an application for an immigrant visa at a consulate abroad; or (3) in immigration court proceedings.
How do I apply?
The waiver is filed on a USCIS Form I-601 along with the appropriate filing fee of $545. The waiver application should also include a detailed statement from the qualifying relative explaining why they will suffer extreme hardship, a detailed statement from the applicant expressing remorse for committing the fraud as well as explaining any extraordinary circumstances surrounding the fraud. The waiver application should also include objective documentary evidence in support of the application such as medical records, financial records or a psychological from the treating physician or psychiatrist.
In a recent case, Igbanugo Partners IntвЂ™l Law Firm successfully obtained a 212(i) waiver for a foreign national who would have otherwise been separated for a long period of time from his U.S. citizen spouse. The applicant applied for permanent residence before the Immigration Court based on his marriage to a U.S. citizen, but had to apply for a fraud waiver because he entered the United States with another personвЂ™s passport. Igbanugo Partners prepared the I-601 waiver application and established, among other factors, that the U.S. citizen spouse suffered from severe depression and post-traumatic stress syndrome due to the possibility of her husbandвЂ™s deportation. The Immigration Judge granted the I-601 waiver application and he was able to remain in the United States with his wife.
Consult an Immigration Attorney
Because of the difficulty in proving extreme hardship as well as the fact that the failure to prepare a thorough waiver application can result in a denial of the waiver and ultimately the application for permanent residence, it is important that all foreign nationals consult an immigration attorney.
Nothing in this article should be taken as legal advice for an individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, consult an attorney experienced in immigration law.