An Explanation of the Immigration Fraud Waiver from an Immigration Lawyer

Any foreign national that has received a visa or been admitted into the U.S. by fraud or will fulmis representation is inadmissible and will need a 212(i) waiver for reentry or adjustment of status.  Applying for the 212(i) waiver is complicated and requires an understanding of immigration law and procedure.  It is important to consult with a waiver lawyer to determine if you have a viable waiver case.

What are some examples of fraud or misrepresentation?

The following is a non-exhaustive list of some common types of immigration fraud:

  •  Using another person’s passport to enter the U.S.
  • Providing false information to a government official in an immigration interview
  •  Providing false information on an immigration application form. 

Who is eligible for a 212(i) waiver?

In making a 212(i) waiver application, one must claim that a qualifying relative will experience extreme hardship if the applicant is not permitted to reside in the U.S.

A “qualifying relative” is the applicant’s U.S. citizen or LPR (lawful permanent resident) spouse or parent.  With the exception of domestic violence cases,a U.S. citizen or LPR child does not count as a qualifying relative. Also, note that immigrants who make a false claim to U.S. citizenship cannot apply for this or any waiver.

What is the legal definition of extreme hardship?

            In Matter of Cervantes, the Board of Immigration Appeals (BIA) outlined the factors considered in determining extreme hardship:

1.      Qualifying relative’s family ties in the United States;

2.      Qualifying relative’s family connections outside the United States;

3.      Country conditions in the alien’s country of origin;

4.      Qualifying relative’s connection to the alien’s country of origin;

5.      Financial impact upon the qualifying relative;

6.      Health status of qualifying relative; and

7.      Lack of availability of adequate medical care in alien’s country of origin.

Under What Circumstances Do I Apply For This Waiver?

There are three circumstances where a 212(i) waiver may be necessary:

  •   When an immigrant is making an application for adjustment of status;
  •   When a foreign national is applying for an immigrant visa at a U.S. consulate abroad; or
  •   When an alien is placed in removal/deportation proceedings and seeks to adjust status to permanent residency.

Note that when in making the 212(i) application while in deportation, it is helpful to consult with a lawyer that not only has experience in filing waivers but also is well versed in the procedures in immigration court.

Sethi & Mazaheri, LLC is a full service immigration law firm with offices in New York and New Jersey. We are well known as deportation lawyers and Immigration Lawyer in NYC.


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