Chapter 1 - Purpose and Background
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 noncitizen 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: |
|
|
|
|
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.
| Applicant Category | Relevant Form | ||
|---|---|---|---|
| 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.
Footnotes
[^ 1] See INA 212(a)(6)(C)(i).
[^ 2] See INA 212(a)(6)(C)(i).
[^ 3] See Section 349 of IIRIRA, Division C of Pub. L. 104-208 (PDF), 110 Stat. 3009, 3009-639 (September 30, 1996).
[^ 4] Under INA 212(i). The applicable law for the adjudication of an INA 212(i) waiver is the law in effect on the date of the decision on the waiver application. See Matter of Cervantes-Gonzalez (PDF), 22 I&N Dec. 560, 563 (BIA 1999).
[^ 5] A fiancé(e) is not yet the spouse of a U.S. citizen. However, K inadmissibility issues are generally addressed as if the fiancé(e) were seeking admission as an immigrant. See 22 CFR 41.81(d). See Matter of Sesay, 25 I&N Dec. 431 (BIA 2011). As discussed below, the grant of an INA 212(i) waiver to a K nonimmigrant fiancé(e) or fiancé(e) child is conditioned on the fiancé(e)’s actually marrying the citizen petitioner. See 8 CFR 212.7(a)(4)(iii).
[^ 6] See INA 212(a)(6)(C).
[^ 7] See INA 212(a)(6)(C)(i).
[^ 8] See INA 212(a)(6)(C)(ii), as implemented by Section 344(a) of IIRIRA, Division C of Pub. L. 104-208 (PDF), 110 Stat. 3009, 3009-637 (September 30, 1996).
[^ 9] Under INA 212(i).
[^ 10] See INA 212(a)(6)(C)(i).
[^ 11] IIRIRA made September 30, 1996 the effective date of the new INA 212(a)(6)(C)(ii). See Section 344(c) of IIRIRA, Division C of Pub. L. 104-208 (PDF), 110 Stat. 3009, 3009-637 (September 30, 1996).
[^ 12] See INA 212(i). Some separate adjustment mechanisms, such as INA 209 (for refugees and asylees) may have more broadly available waivers that could apply to an applicant who is inadmissible under INA 212(a)(6)(C)(ii). For example, INA 209(c) allows the waiver of many grounds of inadmissibility, and does not list INA 212(a)(6)(C)(ii) as a ground that cannot be waived.
[^ 13] This guidance only addresses the waiver under INA 212(i). The fraud or willful misrepresentation waiver discussed in this guidance is also available to applicants who obtained, or attempted to obtain, a benefit based on falsely claiming U.S. citizenship before September 30, 1996.
[^ 14] This includes false claims to U.S. citizenship made before September 30, 1996.
[^ 15] If the officer has sufficient information in the file to determine whether the ground can be waived, then no form is required.
[^ 16] T nonimmigrant status is for victims of human trafficking. U nonimmigrant status is for victims of certain criminal activity.
[^ 17] Under INA 212(i).
[^ 18] A fiancé(e) is not yet the spouse of the U.S. citizen. K inadmissibility issues, however, are generally addressed as if the fiancé(e) were seeking admission as an immigrant. See 22 CFR 41.81(d). See Matter of Sesay, 25 I&N Dec. 431 (BIA 2011). As discussed below, the grant of an INA 212(i) waiver to a K nonimmigrant fiancé(e) or fiancé(e) child is conditioned on the fiancé(e)’s actually marrying the citizen petitioner.
[^ 19] Foreign spouses or step-children of U.S. citizens.
[^ 20] For information on the adjudication of these waivers, see Chapter 2, Adjudication of Fraud and Willful Misrepresentation Waivers [9 USCIS-PM F.2].
[^ 21] These applicants seek a waiver under INA 207.
[^ 22] These applicants seek a waiver under INA 209.
[^ 23] See INA 245A and any legalization-related class settlement agreements.
[^ 25] For more information on waivers for legalization applicants, see INA 245A(d)(2)(B)(i). See 8 CFR 245a.2(k), and 8 CFR 245a.18. For more information on waivers for SAW applicants, see INA 210(c)(2)(B)(i).
[^ 26] These applicants seek relief under INA 212(d)(3).
[^ 27] See INA 212(d)(3)(A)(i).
[^ 28] See Customs and Border Protection website for more information.
[^ 29] See INA 212(i).
[^ 30] See INA 212(d)(3).