When you mislead an Immigration Officer

A waiver for misrepresentation at entry is now authorized only for an immigrant who is the spouse, son, or daughter of a U.S. citizen or permanent resident. These relationships are the only qualified relatives permitted for the alien seeking a waiver. "

By Robert Reeves

RECENTLY, the Bureau of U.S. Citizenship and Immigration Services (USCIS) started deportation proceedings against thousands of aliens who entered the United States through misrepresentation or fraud. Examples of such misrepresentation include the use of false passports, visas or even the failure to disclose marital status or children.

Discovery by the USCIS of an alien's misrepresentation usually happens at the alien's "green card" interview. When discovered, the immigration officer will inform the alien of the availability of an I-601 waiver — a document basically used to seek pardon — for this particular violation of immigration law.

Under section 212 (I) of the Immigration Act, a waiver is available for a fraudulent or material misrepresentation by filing an I-601 application with supporting documents. However, harsh new enforcement procedures have the USCIS denying such applications at an alarming rate.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRI-RA) created severe eligibility requirements for an alien seeking a waiver of inadmissibility relating to fraud or material misrepresentation. As a result of these modifications the alien now bares the burden of proving several essential factors before the USCIS will approve a request for a waiver.

An alien seeking a waiver must now take into consideration many new elements, including; whether there is a qualifying relative and the existence of extreme hardship.

Immigrants who are the parents of citizens or lawful permanent residents no longer qualify for consideration.

Robert Reeves

The applicant must also demonstrate that refusal of his or her admission would result in "extreme hardship" to the qualifying relative.

The burden of proving such hardship rests with the alien and is shown by submission of documentary evidence to the USCIS.

What is "extreme hardship" is a difficult concept but guidance was given in the case of In Re: Luis Cervantes-Gonzalez. In that decision the court set out some of the factors the USCIS should consider in determining whether an alien has established extreme hardship sufficient to qualify for a waiver.

Those factors included:

qualifying relative's family ties outside the United States ;
the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative's ties to such countries;
the financial impact of departure from this country;
significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate.
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ROBERT REEVES has successfully represented thousands of immigrants at the USCIS and in the U.S. federal courts. He is Board certified and has been specializing in immigration law since 1980. Readers may get in touch with him at his office located at Two North Lake Avenue, 9th Floor, Pasadena, CA 91101, or through tel.: (626) 795-6777; e-mail: immigration@rreeves.com.