Waivers are available in many areas of the immigration law.Â They exist to alleviateÂ rigid sanctions to those who may have done an ill considered act when they were young or because the misdeed was not that offensive or because the immigrant has close familial relationships with U.S. citizens or permanent residents.
FRAUD AND MATERIAL MISREPRESENTATION
An alien who misrepresents a material fact in seeking to secure a visa on entry into the U.S. becomes inadmissible.Â The Immigration Service may presume, for example, that a person who enters the U.S. as a tourist, but within a month looks for a job and then accepts employment, would be considered to have misrepresented his/her intentions in coming to the U.S.Â If more than 60 days have passed and the immigrant then seeks work, the Immigration Service would not presume fraud.
To be inadmissible, an immigrant would have had to misrepresent to a Consul or Immigration Officer so that it would have predictably affected a line of inquiry in order for the officer to make a decision.Â Â If the officer were to ask a question that was not material to an appropriate line of inquiry, such as an officer’s asking an applicant’s age that is irrelevant to an inquiry, if the applicant had not make a truthful answer, then this would not be a “material” misrepresentation that would make the applicant inadmissible.Â However, if the officer asked an alien applicant if the child accompanying him/her for whom he/she was seeking admission was his/her child and the applicant lied, this would be material to the officer and would result in the alien’s exclusion.
The government bears the burden of proof of materiality and willfulness because not all misrepresentations are material.Â The government must establish the materiality in a clear and convincing manner.
An immigrant who is the spouse or son or daughter of a U.S. citizen or permanent resident, can apply for a Waiver by proving extreme hardship to the U.S. or permanent resident spouse or parent.Â Extreme hardship may refer to family ties in the U.S., conditions in the country where the immigrant comes from; the financial impact on the family if the Waiver is not granted; poor health conditions in the immigrant’s country where adequate medical care does not exist; and financial and emotional hardships that would occur to a U.S. spouse or permanent resident or U.S. parent if the immigrant were not admitted.
An alien ordered removed for falsely making or using fraudulent documents to obtain permanent residence, may obtain a Waiver for humanitarian reasons to promote family unity.Â The family relationship must have existed at the time of the commission of the fraud.Â There is no judicial Waiver allowed of a denial of a Waiver.
If you need help or advise, call us at 212-944-9420.