ALEJANDRO ROQUE., ESQ. | IMMIGRATION & CRIMINAL LAW ATTORNEY

You May Have A Waiver Available With Immigration If You Gave A False Name Or Told Lies At The Border To Immigration When You Tried To Enter The Nation.

INA 212(i), or 8 USC § 1182, read in part:

(C) Misrepresentation

( i ) Overall

Any alien who, through fraud or deliberate misrepresentation of a material fact, seeks to obtain (or has sought to obtain or has obtained) a visa, other documentation, or admission to the United States or other benefit provided for under this chapter is inadmissible.

(ii) False claim of citizenship

(I) in general

Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this chapter (including section 1324a of this title) or any other federal or state law is inadmissible.

(II) Exception

In the case of an alien who makes a representation described in subclause (I), if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien resided permanently in the United States before reaching the age of 16, and the alien reasonably believed at the time of making such representation that he or she was a citizen, the alien shall not be deemed inadmissible under any provision of this subsection based on such representation.

(iii) Authorized Pardon

For the provision authorizing waiver of clause ( i ), see subsection ( i ).

The Attorney General has the sole discretion to waive clause ( i ) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that denial of admission to such immigrant alien would result in extreme hardship to the citizen or the lawfully residing spouse or parent of such alien. No court shall have jurisdiction to review a decision or action of the Attorney General with respect to a waiver under this clause.

1. Determine if the applicant has a qualifying relative.

For non-VAWA self-petition cases, the petitioner must have a qualifying relative who is the petitioner's:

· U.S. citizen parent or spouse;

· Legal permanent resident (LPR) parent or spouse; or

· Applicant for a U.S. citizen fiancé(e) (for K-1 or K-2 visa applicants only).

U.S. citizen or LPR children are not qualifying relatives.

A VAWA self-petitioner does not need a qualifying relative, as the VAWA self-petitioner may claim extreme hardship for him or herself. The VAWA self-petitioner may also claim extreme hardship for a U.S. citizen, LPR, or qualifying noncitizen parent or child.

The evidence needed to establish that an applicant has a qualifying relative is generally the same as the evidence required to establish the underlying relationship for a family member or fiancé(e) visa application.

2. Make an Extreme Difficulty Determination.

USCIS (Citizenship and Immigration Services), the Board of Immigration Appeals, and the Federal Courts have determined a number of factors that must be evaluated when determining “Extreme Hardship.”

An applicant must show that his or her qualifying relative (or the applicant himself or herself, if the applicant is a self-petitioning VAWA petitioner) would suffer extreme hardship if the applicant were denied admission or removed from the United States as a result of the denial of the waiver.

If the applicant fails to establish extreme hardship, then the officer must deny the waiver request because the applicant has not met the statutory requirements for the waiver. Before denying the waiver, the officer must follow standard operating procedures regarding issuance of a Request for Evidence or Notice of Intent to Deny.

Generally, a finding that the applicant has not demonstrated extreme hardship is sufficient to support denial of the waiver request. If the applicant has not demonstrated extreme hardship, then there is no need to determine whether the waiver would have been granted at the discretion. However, there may be cases where the applicant's past actions have been so egregious that the officer wishes to note in the decision that even if extreme hardship were found, the request would be denied at the discretion.

If the applicant has established extreme hardship, the officer must proceed with the discretionary determination.

A. Totality of the Circumstances

The officer must make extreme hardship determinations based on the factors, arguments, and evidence presented. Therefore, the officer must consider any submissions by the applicant related to the extreme hardship determination. The officer may also consider factors, arguments, and evidence relevant to the extreme hardship determination that the applicant has not specifically submitted, such as those addressed in Department of State (DOS) information on country conditions or other U.S. government determinations regarding country conditions, including the designation of a country for Temporary Protected Status (TPS). Officers must base their decisions on the totality of the evidence and circumstances presented.

B. Common consequences

Common consequences of denial of admission do not, in and of themselves, warrant a determination of extreme hardship. The Board of Immigration Appeals (BIA) has held that common consequences of denial of admission include, but are not limited to, the following:

· Family separation;

· economic detriment;

· Difficulties in readapting to life in the new country;

· The quality and availability of educational opportunities abroad;

· Inferior quality of medical services and facilities; and

· Ability to perform a chosen job abroad.

While extreme hardship must involve more than the ordinary consequences of denying admission, the extreme hardship standard is not as high as the significantly more onerous “exceptional and extremely unusual” hardship standard that applies to other forms of immigration adjudications, such as cancellation of removal.

C. Factors must be considered cumulatively

The officer must consider all factors and consequences in their entirety and cumulatively when evaluating whether a qualifying relative will experience extreme hardship in the United States or abroad. In some cases, common consequences that alone do not constitute extreme hardship may result in extreme hardship when evaluated cumulatively with other factors.

For example, if a qualifying relative has a medical condition that on its own does not rise to the level of extreme hardship, the combination of that hardship and the common consequences of inferior medical services, economic detriment, or readjusting to life in another country may cumulatively cause extreme emotional or financial hardship for the qualifying relative when considering the totality of the circumstances.

Ordinarily, for example, the fact that medical services are less comprehensive in another country is a common consequence of denying admission; but the inferior quality of medical services, considered together with the individual's specific medical conditions, may create sufficient hardship to rise to the level of extreme hardship in combination with all the other consequences.

The officer must weigh all factors individually and cumulatively, as follows:

· First, the officer must consider whether any individually stated factor rises to the level of extreme hardship under the totality of the circumstances.

· Second, if any factor alone does not rise to the level of extreme hardship, the officer must consider all of the factors together to determine whether they cumulatively rise to the level of extreme hardship. This includes hardship for multiple qualifying relatives.

When considering the factors, whether individually or cumulatively, all factors, including negative factors, must be evaluated in the totality of the circumstances.

D. Examples of factors that may support a finding of extreme hardship

The table below lists factors that an applicant could present that would be relevant to determining whether an applicant has demonstrated extreme hardship to a qualifying relative. This list is not exhaustive; circumstances not on this list may also be relevant to a finding of extreme hardship.

The presence of one or more of the factors below in a particular case does not mean that denial of admission will necessarily result in extreme hardship. But they are factors that may be present and must be considered in their entirety and cumulatively in individual cases. All hardship factors presented by the applicant must be considered in the totality of the circumstances in making the determination of extreme hardship.

Some of the factors listed below apply when the qualifying relative would remain in the United States without the applicant. Other factors apply when the qualifying relative would move abroad. Some of the factors could apply in any circumstance.

I- Family ties and impact

1. The qualifying relative's ties to family members living in the United States, including the age, status, and length of residence of the children.

2. Responsibility for the care of any family member in the United States, particularly children, older adults, and disabled adults.

3. The qualifying relative's ties, including family ties, to the country of relocation, if any.

4. Nature of the relationship between the applicant and the qualifying relative, including facts about the particular relationship that might aggravate or lessen hardship resulting from the separation.

5. Age of the qualifying relative.

6. Duration of the qualifying relative's residence in the United States.

7. Length of the qualifying relative's previous residence in the country of relocation, if applicable.

8. Previous or current military service of a qualifying relative.

9. Impact on the cognitive, social, or emotional well-being of a qualifying relative who is left to replace the applicant as a caregiver for another person, or impact on the qualifying relative (e.g., child or parent) for whom such care is required.

II- Social and Cultural Impact:

1. Loss of access to U.S. courts and the criminal justice system, including loss of the opportunity to seek or provide testimony in criminal investigations or prosecutions; to participate in proceedings to enforce labor, employment, or civil rights laws; to participate in family law proceedings, victim compensation proceedings, or other civil proceedings; or to obtain court orders regarding protection, child support, maintenance, child custody, or visitation.

2. Fear of persecution or social discrimination.

3. Prior granting of U nonimmigrant status.

4. Existence of laws and social practices in the relocation country that would punish the qualifying relative because he or she has been in the United States or is perceived to have Western values.

5. Access or lack of access to social institutions and structures (official and unofficial) for support, guidance or protection.

6. Social ostracism or stigma based on characteristics such as gender, gender identity, sexual orientation, religion, race, national origin, ethnicity, citizenship, age, political opinion, marital status or disability.

7. The qualifying relative's community ties in the United States and in the country of relocation.

8. Degree to which the qualifying relative has integrated into American culture, including language, skills, and acculturation.

9. Degree to which the qualifying relative would have difficulty integrating into the country of relocation, including understanding and adopting established social norms and customs, including gender roles and ethical or moral codes.

10. Difficulty and travel/communication expenses to maintain ties between the qualifying relative and the applicant, if the qualifying relative does not relocate.

11. The current inability of the qualified family member to communicate in the language of the country of relocation, as well as the time and difficulty that learning said language would entail.

12. Availability and quality of educational opportunities for qualified relatives (and children, if any) in the country of relocation.

13. Availability and quality of job training, including technical or vocational opportunities, for qualified family members (and children, if any) in the country of relocation.

III- Economic impact

1. Economic impact of the applicant's departure on the qualifying relative, including the applicant's or the qualifying relative's ability to obtain employment in the country of relocation.

2. Economic impact resulting from the sale of a home, business or other asset.

3. Economic impact resulting from the termination of a professional career.

4. Decreased standard of living, including due to significant unemployment, underemployment or other lack of economic opportunities in the country of relocation.

5. Ability to recover losses or repay student loan debt.

6. Cost of extraordinary needs, such as special education or training for children.

7. Cost of caring for family members, including children and elderly, sick or disabled parents.

IV- Health and care conditions.

1. The health conditions and the availability and quality of any medical treatment required in the country to which the applicant would be returned, including the duration and cost of the treatment.

2. Psychological impact on the qualifying relative due to the applicant's separation from or departure from the United States, including separation from other family members living in the United States.

3. Psychological impact on the family member qualified by the applicant's suffering.

4. Prior trauma suffered by the qualifying relative that may aggravate the psychological impact of separation or relocation, including trauma evidenced by the prior grant of asylum, refugee status or other forms of humanitarian protection.

V- Country conditions.

1. Conditions in the country of relocation, including civil unrest or widespread levels of violence, current U.S. military operations in the country, active U.S. economic sanctions against the country, the country's ability to address major crimes, environmental disasters such as floods or earthquakes, and other social, economic, or political conditions that jeopardize safe repatriation or create a reasonable fear of physical harm.

2. Designation of Temporary Protected Status (TPS).

3. Danger pay for U.S. government workers stationed in the country of nationality.

4. Withdrawal from the Peace Corps from the country of nationality for security reasons.

5. DOS travel warnings or alerts, whether or not they constitute a particularly significant factor.

3. Analyze whether forgiveness should be granted at discretion

A waiver for fraud or deliberate misrepresentation generally requires an officer to consider whether granting the waiver is justified as a matter of discretion. The officer must determine whether the applicant's positive factors outweigh the negative factors.

The finding of extreme hardship experienced by a qualifying relative (or the VAWA petitioner themselves) is the first positive factor to consider. The underlying fraud or deliberate misrepresentation itself is the first negative factor to consider. The nature, severity, and underlying circumstances of the fraud or deliberate misrepresentation may influence the weight given to this negative factor. Considerations include, but are not limited to:

· The facts and circumstances surrounding the fraud or intentional misrepresentation;

· The reasons and motivations of the applicant when he committed the fraud or fraudulent statement;

· Age or mental capacity of the applicant when the fraud was committed;

· Whether the applicant has engaged in a pattern of fraud or whether it was simply an isolated act of misrepresentation; and

· The nature of the procedure in which the applicant committed the fraud or fraudulent misrepresentation.

Immigration Attorneys at Alejandro Roque, ESQ. Law Firm

Contact your experienced immigration attorneys at Alejandro Roque, ESQ now for additional information on the topics discussed in this article, or for comprehensive legal assistance and strong representation.

Our Florida immigration attorneys have extensive experience in all types of immigration issues and we recognize that every scenario is unique. Immigration law is continually evolving and dealing with immigration issues alone can be tedious. We offer services such as Detainee Representation, Citizenship, Deportation Defense, Cuban Adjustment Act, Investor Visas, U Visa, VAWA Visa, Asylum in the United States, Consular Processing, Criminal Waiver, Court Representation, Fraud Waiver, Unlawful Presence Waiver, Resident Waiver, Bail, TPS, Order of Supervision, Permanent Residency, Family Visas, Marriage-Based Residency, and Criminal Defense!

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