Fraud or Willful Misrepresentation

Waiver for Fraud or Willful Misrepresentation

A. Purpose

An applicant who is inadmissible for fraud or willful misrepresentation may be eligible for a waiver. [1] A waiver of inadmissibility allows an applicant to enter the United States or obtain an immigration benefit despite having been found inadmissible.

The purpose of a waiver for inadmissibility due to fraud or willful misrepresentation [2] is to:

Provide humanitarian relief and promote family unity;
Ensure the applicant merits favorable discretion based on positive factors outweighing the applicant's fraud or willful misrepresentation and any other negative factors; and
Allow the applicant to overcome the inadmissibility or removability ground.

B. Background

Prior to September 30, 1996, a waiver was available to applicants who could show either:

More than 10 years had passed since the date of the fraud or willful misrepresentation; or
The applicant's U.S. citizen or lawful permanent resident (LPR) parents, spouse, or children would suffer extreme hardship if the applicant was refused admission to the United States.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) [3] limited the availability of the waiver and eliminated the possibility of applying for a waiver if more than 10 years have passed. [4] A waiver is now available only to applicants who can demonstrate extreme hardship to:

U.S. citizen parent or spouse;
An LPR parent or spouse;
A U.S. citizen fiancé(e); [5] or
In the case of a Violence Against Women Act (VAWA) self-petitioner: the VAWA self-petitioner, or his or her U.S. citizen, LPR, or qualified alien parent or child.

IIRIRA made other changes that play a role in the waiver adjudication. IIRIRA modified the inadmissibility provision [6] by creating two inadmissibility grounds within the same provision:

Inadmissibility for fraud or willful misrepresentation; [7] and
Inadmissibility for falsely claiming U.S. citizenship on or after September 30, 1996. [8]

The waiver [9] discussed in this Part G only applies to applicants who are inadmissible for fraud or willful misrepresentation. [10]

Inadmissibility based on a false claim to U.S. citizenship made on or after September 30, 1996 [11] cannot be waived through a waiver for fraud or willful misrepresentation. [12] However, because IIRIRA's changes were not retroactive, applicants who falsely claimed U.S. citizenship before September 30, 1996, are considered inadmissible for fraud or willful misrepresentation and may still seek the fraud or willful misrepresentation waiver.

C. Scope

The availability of a waiver of inadmissibility based on fraud or willful misrepresentation depends on the immigration benefit the applicant is seeking. The guidance in this Policy Manual part only addresses the processes used for the fraud or willful misrepresentation waiver [13] available to applicants listed in the table below.

Classes of Applicants Eligible to Apply for Waiver under INA 212(i)

Applicants seeking:

An immigrant visa or adjustment of status based on a family-based petition or as a VAWA self-petitioner

An immigrant visa or adjustment of status based on an employment-based petition

A nonimmigrant K visa (fiancé(e)s of U.S. citizens and their accompanying minor children, foreign spouses, and step-children of U.S. citizens)

A nonimmigrant V visa (spouses and unmarried children under age 21, or step-children of lawful permanent residents)

Applicants seeking other immigration benefits may have different means to waive inadmissibility for fraud or willful misrepresentation.

D. Legal Authorities

INA 212(a)(6)(C)(i) – Illegal Entrants and Immigration Violators - Misrepresentation [14]
INA 212(i) – Admission of Immigrant Excludable for Fraud or Willful Misrepresentation of Material Fact

E. Applicants Who May Have a Waiver Available

The chart below details who may apply for a waiver of inadmissibility based on fraud or willful misrepresentation and the relevant form. This chart includes waivers under INA 212(i) as well as waivers of inadmissibility for fraud or willful misrepresentation under other provisions of the INA.

Available Waiver of Inadmissibility Based on Fraud or Willful Misrepresentation

Applicants for adjustment of status, immigrant visas, and K and V nonimmigrant visas seeking waiver under INA 212(i)
Form I-601
Application for Waiver of Grounds of Inadmissibility

Temporary Protected Status (TPS) applicants seeking waiver under INA 244(c)
Form I-601
Application for Waiver of Grounds of Inadmissibility

Applicants for admission as refugees under INA 207
Form I-602
Application by Refugee for Waiver of Grounds of Inadmissibility

Refugees and asylees applying for adjustment of status under INA 209 [15]
Form I-602
Application by Refugee for Waiver of Grounds of Inadmissibility

Legalization applicants under INA 245A
Form I-690
Application for Waiver of Grounds of Inadmissibility

Special Agricultural Workers (SAW) under INA 210
Form I-690
Application for Waiver of Grounds of Inadmissibility

Nonimmigrants, including T and U [16] visa applicants (but not K and V nonimmigrants)
Form I-192
Application for Advance Permission to Enter as Nonimmigrant

1. Immigrants, Adjustment of Status Applicants, and K and V Visa Applicants

USCIS has the discretion to waive inadmissibility based on fraud or willful misrepresentation [17] for:

A VAWA self-petitioner seeking adjustment of status;
An immigrant visa applicant who is the spouse, son, or daughter of a U.S. citizen or LPR;
An adjustment of status applicant who is the spouse, son, or daughter of a U.S. citizen or LPR;
A V visa applicant who is the spouse, son, or daughter of a U.S. citizen or LPR;
A K visa applicant who is the fiancé(e) of a U.S. citizen, or the applicant's children; [18] and
A K-3 or K-4 visa applicant. [19]

The instructions to Form I-601 and the USCIS website detail when and where the applicant should file the waiver. [20]

2. Refugees

An applicant seeking admission as a refugee and who is inadmissible for fraud or willful misrepresentation may seek a waiver. [21] The waiver may be approved if the grant serves humanitarian purposes, family unity, or other public interests. The waiver is processed overseas as part of the refugee package.

3. Asylee and Refugee Based Adjustment Applicants

At the time of adjustment, asylees and refugees seeking adjustment of status may apply for a waiver of inadmissibility for fraud or willful misrepresentation. [22] The waiver can be approved if the grant serves humanitarian purposes, family unity, or other public interests. Under current USCIS policy, the officer has the discretion to grant the waiver with or without a waiver application for certain grounds of inadmissibility.

Waiver applications for refugees are usually adjudicated overseas before the applicant is admitted in the refugee classification. However, if the refugee is inadmissible based on actions that occurred prior to or after admission, the refugee can apply for a waiver when seeking adjustment.

4. Legalization and SAW Applicants

Legalization applicants [23] and Special Agricultural Workers (SAW) applicants [24] may be granted a waiver of inadmissibility based on fraud or willful misrepresentation if the grant serves humanitarian purposes, family unity, or other public interests. [25]

5. Nonimmigrants, including T and U Nonimmigrant Visa Applicants

An applicant seeking admission as a nonimmigrant and who is inadmissible for fraud or willful misrepresentation may obtain a waiver for advance permission to enter the United States. [26] This waiver is granted at the discretion of the Secretary of Homeland Security.

If the applicant is seeking a nonimmigrant visa (other than K, T, U, and V) overseas, the applicant must apply for the waiver through a U.S. Consulate. The Customs and Border Protection (CBP) Admissibility Review Office (ARO) adjudicates the waiver. [27] If the applicant is not required to have a visa (other than visa waiver applicants) and is applying for the waiver at the U.S. border, the application is filed with CBP. [28]

If the applicant is applying for a T or U nonimmigrant visa, the applicant must always file the waiver application with USCIS.

If the applicant is applying for a K or V nonimmigrant visa, the applicant is generally treated as if he or she is an intending immigrant. Therefore, the applicant must file a waiver application with USCIS if inadmissible for fraud or willful misrepresentation. [29] If USCIS grants the waiver, DOS will grant a nonimmigrant waiver [30] without CBP involvement.