FRAUD WAIVERS:
QUESTIONS AND ANSWERS

FREE NEWSLETTER

Learn how to benefit from United States immigration laws and procedures from a former INS Attorney (1976-82) with over 30 years of experience. SHUSTERMAN'S IMMIGRATION UPDATE is must reading for potential immigrants, employers, human resources managers, immigration attorneys, reporters and policy makers. Join over 55,000 persons in more than 150 countries in subscribing to our FREE monthly e-mail newsletter. E-Mail Address: Your Name:

1. What is a fraud waiver?

Specifically, it can waive the ground of excludability or inadmissibility for fraud or material misrepresentation. This ground applies to people who, by fraud or by willfully misrepresenting a material fact, have sought to procure, seek to procure, or have procured a visa, other documentation or entry (admission) into the U.S., or other benefit under the immigration laws.

The following are examples of fraud or misrepresentation:

1. Using a false name, birth date, marital status to obtain a visa, an extension or change of status or adjustment of status.

2. Falsely claiming to be a U.S. citizen or permanent resident on an I-9 form to obtain employment.

2. How could someone qualify for the waiver before the new law?

1. If the intending immigrant or immigrant who was the spouse, parent, or son or daughter of a United States citizen (USC) or lawful permanent resident (LPR);

   or

2. If the fraud or misrepresentation occurred at least 10 years before the date of the immigrant's application for a visa, entry or adjustment of status, and admission of the immigrant would not be contrary to the interests of the United States.

3. Is the fraud waiver still available under the new law?

4. How does the new law restrict the availability of the fraud waiver?

1. It eliminated the 10-year "statute of limitations" option. Thus, the only way to obtain a fraud waiver is through a family relationship;

2. It eliminates the word "parent" from the list of people who can qualify for a fraud waiver. This means that only spouses or sons or daughters of USCs or LPRs are eligible for the waiver. Parents of a USC or LPR no longer can obtain this waiver (perhaps Congress did not want people to "benefit" from giving birth to a child in the U.S.);

   and

3. The applicant must establish that the qualifying relative would suffer "extreme hardship" if the applicant were denied admission or forced to leave the U.S.

5. So, in summary, under the new law, who can obtain a fraud waiver?

6. What does "extreme hardship" mean in this context?

7. Are there any other restrictions in the new law about this waiver?

If this preclusion is valid -- and it may be subject to challenge in the courts -- it means that there is no court review. It does not limit or restrict administrative review by the Board of Immigration Appeals.

8. When are these changes effective and do they apply to pending cases?

Under Supreme Court law, a new statute that restricts relief or has other negative consequences should not apply to pending cases unless Congress clearly indicated its intent that it should.

Here, where Congress did not communicate an intent that the new law restrictions apply to pending cases and applications, arguably they should not.

9. Does that mean my application for the fraud waiver may go ahead under the old law without the "hardship" requirement?

Schedule A Legal Consultation

Return to Analysis of 1996 Immigration Law

Return to Immigration Guide Homepage