May 10, 2014
Because obtaining a tourist visa to the U.S. is so difficult, individuals some times feel that there are no viable options but to resort to fraud. From the Philippines, a common scenario involves individuals who go to a travel agency that advises and assists them with obtaining a tourist visa under an assumed name and/or different date of birth. If successful in entering the U.S., the problem then becomes how to legalize one’s status, such as if they marry a U.S. citizen or permanent resident.
For individuals who are seeking to obtain lawful permanent residency, any past fraud or misrepresentation renders the applicant inadmissible and ineligible to legalize status unless they are granted a fraud waiver. This includes all individuals who have committed fraud, even those who are married to a United States citizen.
A fraud waiver under section 212(i) of the U.S. Immigration and Nationality Act can be granted if it can be shown that the applicant’s U.S. citizen or lawful permanent resident spouse or parent (i.e. qualifying relative) would experience extreme hardship if the applicant is denied permanent residency. Applicant’s should note that this waiver does not allow a showing of extreme hardship to children. So, unless an individual has a U.S. citizen parent or spouse, they would not qualify to apply for a fraud waiver.
The laws do not specifically define what qualifies as “extreme hardship.” Rather, the definition has been developed over time on a case-by-case basis. As well, the D.H.S. and U.S. Embassies have established various criteria that they consider. There are no specific requirements as to what must be shown; rather, the D.H.S. and Embassies take a look at the totality of the circumstances to determine whether extreme hardship has been shown. The following are some criteria used in evaluating extreme hardship:
Health: Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in the applicant’s home country, anticipated duration of treatment; whether a condition is chronic or acute, or long-or-short term.
Financial Considerations: Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (i.e. elderly and infirm parents).
Education: Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade; availability of special requirements, such as training programs or internships in specific fields.
Personal Considerations: Close relatives in the U.S. and/or the applicant’s own country; separation from spouse/children; ages of involved parties; length of residence and community ties in the U.S.
Special Factors: Cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm or injury; social ostracism or stigma; access to social institutions or structures.
With respect to these factors, it is reminded that the key term in the law is “extreme” hardship and therefore only in cases of real, actual or prospective injury to the qualifying relative will a fraud waiver be granted. Applications must therefore clearly address the reasons why extreme hardship would be encountered by the qualifying relative and supporting documentation evidencing the hardship claims are essential.
The fraud waiver is a viable solution for those who have made a prior mistake of committing fraud or misrepresentation. Unfortunately, some individuals are unethically counseled to commit further fraud to try to handle a prior incident of fraud. This approach should never be taken as the D.H.S. is highly unlikely to thereafter grant a fraud waiver when an individual has repeatedly committed fraud. The road may not be easy, but peace of mind can be attained when handling matters legally and appropriately.
For further information, please schedule an appointment with an attorney at Aquino & Loew, Immigration Law Specialists.