INA 237 (a)(1)(H) WAIVER
INA 237(a)(1)(H), commonly known as the fraud waiver, provides relief to lawful permanent residents (LPR) and battered spouse self-petitioners in removal proceedings. To better understand this waiver, we shall initially examine some other important provisions.
Under INA 212(a)(6)(C)(i), an alien is inadmissible if he/she has previously obtained or attempted to obtain a visa, other documentation, admission or other benefit under the Immigration and Nationality Act (INA), by means of fraud or by willfully misrepresenting a material fact. Inadmissibility means that an alien is barred from receiving a visa or admission into the US.
Under INA 237(a)(1)(A), an alien is removable, not inadmissible, if, at the time of his entry or adjustment of status, he was inadmissible. Removability or deportability means that an alien was previously admitted into the US but who is now removable, generally, due to facts that occurred during or after admission into the US. For example, Ronald was the beneficiary of an immigrant petition as an unmarried adult son of a USC. This petition was approved. In 2007, Ronald entered the United States as an immigrant and acquired LPR status. However, it later turned out that, at the time of his petition, Ronald was in fact married. DHS subsequently discovered this fraud when Ronald applied for either naturalization or renewal of his green card. Thus, in 2017, DHS placed Ronald in removal proceedings on charges that, at the time of Ronald’s admission, he was inadmissible for fraud or material misrepresentation. Hence, Ronald was removable under INA 237(a)(1)(A) because at the time of his admission he was inadmissible under INA 212(a)(6)(C)(i) for fraud or material misrepresentation.
Now under INA 237(a)(1)(H), the Attorney General has discretion to waive the removability of an alien under INA 237(a)(1)(A) due to his inadmissibility under INA 212(a)(6)(C)(i) at the time of admission, whether or not the fraud or material misrepresentation was willful or innocent.
An LPR may apply for an INA 237(a)(1)(H) waiver if he/she: (1) has a qualifying family member such as a USC or LPR spouse, parent, son or daughter; (2) had an immigrant visa or valid entry document at the time of admission; and (3) was otherwise admissible at the time of admission except for any inadmissibility that was the direct result of the fraud or misrepresentation.
A battered spouse self-petitioner may apply for an INA 237(a)(1)(H) waiver if: (1) she was admitted into the US; and (2) her admission involved fraud or material misrepresentation. In addition, both LPR applicants and battered spouse self-petitioners must show in their INA 237(a)(1)(H) waiver applications that they are entitled to the exercise of favorable discretion.
In Matter of Tijam, 22 I&N Dec. 408 (BIA 1998), the Board of Immigration Appeals (BIA) described that a favorable exercise discretion requires the balancing of an alien’s undesirability as a permanent resident with the social and humane considerations present to determine whether a grant of relief is in the best interests of the country. Adverse factors include: (1) the nature and circumstances of the fraud or misrepresentation involved; (2) the nature, seriousness, and recency of any criminal conduct; and (3) any other evidence of bad character or undesirability as an LPR. Favorable factors include: (1) family ties in the US; (2) long residence in the US; (3) hardship to the alien or his family; (4) stable employment; (5) property or business ties; and (6) value and service to the community; and (7) good character.
Importantly, INA 237(a)(1)(H) waiver does not require the alien to demonstrate extreme hardship on his qualifying relative. Other waivers of inadmissibility such as: (1) under INA 212(i), which waives inadmissibility under INA 212(a)(6)(C)(i) for fraud or material misrepresentation; (2) under INA 212(a)(9)(B)(v), which waives inadmissibility under INA 212(a)(9)(B)(i) for unlawful presence; and (3) a certain form of waiver under INA 212(h), which waives inadmissibility arising from criminal conduct, all require the showing of extreme and exceptional hardship on qualifying relatives.
This means that an INA 237(a)(1)(H) waiver is a certainly lower in degree of difficulty compared with the other waivers mentioned. However, an INA 237(a)(1)(H) waiver, like all the other waivers mentioned, still requires the alien to demonstrate hardship on family members in order to merit a favorable exercise of discretion. Nevertheless, demonstrating “hardship” instead of “extreme hardship” on qualifying relatives is a relatively less daunting task.
Lastly, if INA 237(a)(1)(H) waiver is granted, the alien keeps his/her LPR status retroactive to his date of admission. For example, Ronald committed fraud when he entered as an LPR in 2007. In 2017, he was placed in removal proceedings. He may apply for INA 237(a)(1)(H) relief for his fraud and cancellation of removal for LPRs for his theft conviction. If the waiver is granted, he would be considered an LPR since 2007. Since he has been an LPR from 2000, he would also meet the 5-year LPR requirement for LPR cancellation.
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