Did you lie on an immigration application or at an interview with a U.S. CIS or the consulate?
Did you intentionally lie about your past overstay or crime on an ESTA form or visa application?
Did you use someone else’s passport to enter the U.S.?
If so, you may have committed fraud or “misrepresentation” under U.S. immigration law. Misrepresentation can have severe consequences. Committing misrepresentation in any attempted or successful entry into the U.S. or during the application or any part of the process for any U.S. immigration benefit or visa is a lifetime bar to receiving any U.S. immigration benefit.
The misrepresentation must be “material”to whether CBP would have let you in the U.S had they known of the lie, a consulate still issuing your visa had they known of the falsehood, or U.S. CIS granting you a green card for instance if they knew that you were not living with your spouse as you stated in your interview, for example. Arguing against a finding of misrepresentation finding may be possible in limited circumstances and if you have the facts and documentation to back it up. For everyone else, a waiver may be the only option. Misrepresentation waiver, if approved, would waive the lie to allow you to obtain the benefit you are seeking – whether it is a green card or admission to the United States.
Nonimmigrant Visa Waivers for Fraud
If you are applying for a nonimmigrant visa (such as a B-2 visitor visa, F-1 student visa, H-1B work visa, or any other visa limited duration), you would have to apply for a nonimmigrant visa waiver. Nonimmigrant visa waivers are usually applied for at the consulate abroad but may also be applied for in the U.S. in connection with a U visa application to waive past misrepresentation at entry or in connection with an application for a visa or other immigration benefit. Misrepresentation waivers are limited to the nonimmigrant visa you are applying for; these types of waivers do not waive your permanent inadmissibility (permanent bar to a green card) and do not help you qualify for permanent residency. The consulate will look at various factors including:
- 4(a)(1)(ii) Each intended date of arrival;
- The length of each proposed stay in the United States;
- The purpose of each stay;
- The number of entries which the alien intends to make; and
- Any discretionary factors or reasons the consulate believes in the immigrant’s situation justifies recommending a waiver.
Misrepresentation Waivers For Those Applying For Green Cards
To waive the representation, you must show that your U.S. citizen or permanent resident spouse or parent would suffer extreme hardship if you are not allowed to return to the U.S. because of the misrepresentation. If the waiver fails, you will be barred for life. Although you can technically reapply for a waiver, is often harder to obtain an approval when the government always compares your last filing to your newest. If the facts haven’t changed or the evidence is not improved drastically, it will be difficult to obtain an approval.
To document whether a relative will or has experienced “extreme hardship”, the government will look at many factors including health issues, financial considerations, education in the U.S. that could be interrupted, family ties in the United States, separation from spouse and/or children of the petitioner, and the conditions in the country or countries to which the qualifying relatives would relocate, just to name a few.
Even if you are able to meet the extreme hardship analysis, the government will not approve your waiver if the government believes that you do not deserve it, i.e., that the government does not want to grant discretion.
There are also misrepresentation waivers potentially available to waive marriage fraud and fraud upon entry as a permanent resident if you are in removal proceedings (Check out our page on fraud waiver in court under removal defense) if this applies to you.
Why chose SGG to handle your waiver case?
Given the severity of the consequences for a denial and the lower chances of an approval upon refiling, you need to put your strongest case forward from the start when applying for a misrepresentation waiver. Not many immigration attorneys routinely handle misrepresentation waivers because of the complications of multiple misrepresentations, recent lies, and seemingly unsympathetic reasons for the lies. These cases just pose a lot more challenges than an unlawful presence waiver in many circumstances since there is so much rehabilitation of the client involved – how is the client reformed? Why is s/he unlikely to lie again? Discretion can play a larger than normal part in the grant of these cases.
Since SGG’s attorneys regularly work on some of the toughest cases as our Managing Partner of the Family and Removal Group is internationally known for her waiver work, we are used to these complications and we know how to document your case well. Don’t get us wrong – waivers are a lot of work for the client, too. But let’s make that work worth it. Work with a team that can help you tell your story in the most sympathetic way possible and help you document your unique arguments.
For more information about working with an SGG attorney on your misrepresentation waiver case, click here or call us at 213.627.8997 today to book a detailed Case Evaluation appointment with an experienced family and removal immigration attorney.