Any foreign national who willfully misrepresents a material fact in order to get an immigration benefit, such as a visa or entry into the United States, is inadmissible and subject to removal. Such foreign national is also not eligible to obtain a US permanent resident status (otherwise known as a green card). However, in certain circumstances there is a waiver available at the discretion of the Attorney General, through the USCIS. Even if you qualify for this waiver, it does not mean you are guaranteed to get it since the USCIS has the discretion to grant or deny the waiver.
It is important to note that in order for a misrepresentation to render you inadmissible, the misrepresentation of fact must be both willful and material. This means that you must have knowingly been untruthful about a fact that was relevant to your obtaining an immigration benefit.
How do I qualify for a waiver?
This waiver is generally available to a foreign national who meets the both of the following criteria. First, you must be a spouse, parent, son, or daughter of a United States citizen or of a US lawful permanent resident (green card holder). Second, you must have been in possession of an immigrant visa or equivalent document and you were otherwise admissible at the time of such admission except for the misrepresentation.
Therefore, to qualify for this waiver you must establish that the misrepresentation rendered you inadmissible at the time you were admitted into the United States. You must also establish that you would have been admissible, but for the misrepresentation.
Whether you qualify for a waiver can be a very complicated matter
This rule may sound simple on the surface but can be confusing. Even the USCIS has been known to misinterpret this area of immigration law. There was a recent court case from the US Court of Appeals for the Sixth Circuit that illustrates this, Jose Avila-Anguiano v. Eric Holder, July 18, 2004. In this case, the court held that the USCIS erroneously concluded that the foreign national was not eligible for the waiver on the basis that the misrepresentation did not occur at the time of admission. The foreign national made the misrepresentation three years prior to the date of admission, and the USCIS did not grant a waiver as a result of this fact.
The court held that the USCIS did not interpret the law correctly, and it reversed the decision and remanded the case back to the USCIS. The court held that it is not required for the misrepresentation to happen during the foreign national’s admission to the US, as the USCIS incorrectly interpreted. But rather, what is required is that the misrepresentation must have been what caused the foreign national to be inadmissible at the time of admission.
An application for a waiver of inadmissibility can be a very complex legal matter. As illustrated above, the immigration official who will ultimately decide whether or not to grant your waiver may not accurately comprehend this area of immigration law. Therefore, it is crucial to seek assistance from competent legal counsel who can present your case properly and effectively.