Chapter 2 - Adjudication of Fraud and Willful Misrepresentation Waivers
A. Eligibility
An applicant inadmissible for fraud or willful misrepresentation may be eligible for a waiver. Before adjudicating the waiver, the officer should determine if the applicant is inadmissible for fraud or willful misrepresentation.[1]
If inadmissible, the applicant must meet the following requirements before a waiver can be granted:
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The applicant must show that denial of admission to or removal from the United States would result in extreme hardship to his or her qualifying relative (or if the applicant is a VAWA self-petitioner, to himself or herself); and
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The applicant must show that a favorable exercise of discretion is warranted.[2]
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General Guidelines for Adjudication of Fraud and Willful Misrepresentation Waivers |
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Step 1 |
Determine whether the applicant is a VAWA self-petitioner or has established the relationship to the qualifying relative. |
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Step 2 |
Determine whether the applicant has demonstrated that his or her qualifying relative (or the applicant himself or herself, if a VAWA self-petitioner) would suffer extreme hardship if the applicant were denied admission to or removed from the United States as a result of the denial of the waiver. |
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Step 3 |
Determine whether the waiver should be granted as a matter of discretion, particularly whether positive equities such as humanitarian relief to a qualifying relative and family unity overcome negative factors such as fraud and willful misrepresentation. |
B. Waiver Adjudication
1. Determine Whether the Applicant Has a Qualifying Relative
For cases other than VAWA self-petitioners, the applicant must have a qualifying relative who is either the applicant’s:
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U.S. citizen parent or spouse;
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Lawful permanent resident (LPR) parent or spouse; or
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U.S. citizen fiancé(e) petitioner (for K-1 or K-2 visa applicants only).
U.S. citizen or LPR children are not qualifying relatives.
A VAWA self-petitioner does not need a qualifying relative, since the VAWA self-petitioner may claim extreme hardship to himself or herself. The VAWA self-petitioner may also claim extreme hardship to a U.S. citizen, LPR, or qualified noncitizen parent or child.[3]
The evidence needed to establish that an applicant has a qualifying relative is generally the same as the evidence required to establish the underlying relationship for a relative or fiancé(e) visa petition.
2. Make an Extreme Hardship Determination
An applicant must demonstrate that his or her qualifying relative (or the applicant himself or herself, if a VAWA self-petitioner) would suffer extreme hardship if the applicant were refused admission to or removed from the United States as a result of the denial of the waiver.
If the applicant fails to establish extreme hardship, then the officer must deny the waiver application because the applicant has not met the statutory requirements of the waiver. Before denying the waiver, the officer should follow standard operating procedures regarding issuance of a Request for Evidence or Notice of Intent to Deny.
In general, a finding that the applicant has not shown extreme hardship is sufficient to support a denial of the waiver application. If the applicant has not established extreme hardship, then it is unnecessary to determine whether the waiver would have been granted as a matter of discretion. There may be instances, however, where the applicant’s past actions were so egregious that the officer may want to note in the decision that even if extreme hardship were found, the application would be denied as a matter of discretion.
If the applicant has established extreme hardship, the officer should proceed with the discretionary determination.
3. Analyze Whether the Waiver Should Be Granted as a Matter of Discretion
A fraud or willful misrepresentation waiver generally requires an officer to consider whether granting the waiver is warranted as a matter of discretion. The officer should determine whether the applicant’s positive factors outweigh the negative factors.
The finding of extreme hardship experienced by a qualifying relative (or the VAWA self-petitioner himself or herself) is the first positive factor for consideration. The underlying fraud or willful misrepresentation itself is the first negative factor to consider.[4] The nature, seriousness, and underlying circumstances of the fraud or willful misrepresentation may influence the weight given to this negative factor. Considerations include, but are not limited to:
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The facts and circumstances surrounding the fraud or willful misrepresentation;
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The reasons and motivations of the applicant when the fraud or willful misrepresentation was committed;
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Age or mental capacity of the applicant when the fraud was committed;
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Whether the applicant has engaged in a pattern of fraud or whether it was merely an isolated act of misrepresentation;[5] and
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The nature of the proceedings in which the applicant committed the fraud or willful misrepresentation.[6]
Footnotes
[^ 1] For more on inadmissibility for fraud and willful misrepresentation, see Volume 8, Admissibility, Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J].
[^ 2] Once found inadmissible, the underlying fraud or willful misrepresentation is not considered again until the officer determines whether the waiver is warranted as a matter of discretion. For more information, see Chapter 3, Effect of Granting a Waiver [9 USCIS-PM G.3].
[^ 3] See INA 212(i), INA 204(a)(1)(A)(iii), and INA 204(a)(1)(A)(iv).
[^ 4] See INS v. Yueh-Shaio Yang, 519 U.S. 26 (1996). See Matter of Cervantes-Gonzalez, 22 I&N Dec. 560 (BIA 1999).
[^ 5] See INS v. Yueh-Shaio Yang, 519 U.S. 26 (1996).
[^ 6] In Matter of Tijam, 22 I&N Dec. 408, 413 (BIA 1998), the Board of Immigration Appeals (BIA) stated that it considered making false statements under oath during the naturalization process to be an extremely serious adverse factor because of the government’s interest in maintaining the integrity of that process.