December 16, 2015
For individuals who are seeking to obtain lawful permanent residency, any past fraud or misrepresentation renders the individual 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.
Immigration fraud occurs when an individual willfully and knowingly provides material information and/or documentation that is false for an immigration benefit. An individual commits fraud if, for example, they entered the US under a false name, date of birth, or marital status. Another example is if they file an application with the US Embassy or Department of Homeland Security based on invalid information, such as a LULAC legalization application that falsely claimed entry before the required date. Yet another example of fraud, in certain situations, are false claims made on a Form I-9 Employment Eligibility Verification form.
A fraud waiver under section 212(i) of the US Immigration and Nationality Act can be granted if an individual can show that his US citizen or lawful permanent resident spouse or parent (i.e. qualifying relative) would experience extreme hardship if he is denied permanent residency. Individuals should note that the fraud waiver does not allow a showing of extreme hardship to children. So, unless an individual has a US 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 DHS and US Embassies have established various criteria that they consider in assessing whether extreme hardship has been demonstrated. There are no specific requirements as to what must be shown; rather, the DHS and Embassies take a look at the totality of the circumstances to determine extreme hardship. 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 US and/or the individual’s own country; separation from spouse/children; ages of involved parties; length of residence and community ties in the US.
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 DHS 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. Please also connect with us on Facebook and Twitter. Aquino & Loew also handles family law and criminal matters. Providing Personalized Service Nationwide & Abroad Since 1996.