Misrepresentation Waivers and Fraud Waivers – General Information

 

Will you need a misrepresentation or fraud waiver in order to get an immigrant visa or green card?

Every year many people find out that they won’t be able to get an immigrant visa or a green card unless they first receive a misrepresentation or fraud waiver (also known as an I601 hardship waiver). Some people learn this during their immigrant visa interview when the consular officer tells them that they can’t receive an immigrant visa without first getting a waiver for a past misrepresentation or immigration fraud. Others learn about the need for a misrepresentation or fraud waiver during their adjustment of status interview for their green card. Still others learn about this type of waiver from a friend or through Internet research before they even begin the immigrant visa or adjustment of status process.

What is a misrepresentation or fraud waiver?

Simply put, if someone has been found to have made a misrepresentation or to have committed fraud in connection with an application for a visa, green card or other immigration benefit, they may be “inadmissible” which means that they can’t receive an immigrant visa or obtain a green card through the adjustment of status process. You can learn more about this type of inadmissibility in the below section on the definition of “misrepresentation” and “fraud.”

A misrepresentation or fraud waiver basically forgives this type of inadmissibility and allows you to move forward with the immigration process.

The penalty for misrepresentation or fraud is severe – you will be permanently inadmissible to the United States. This is true even if you have strong family ties to the United States or are married to a United States citizen. You should always check with an immigration lawyer to find out if a past misrepresentation or fraud will be an issue in your immigration case.

Definition of Misrepresentation and Fraud

Both of these terms have very specific meanings in immigration law and it is not always easy to determine what counts as a misrepresentation or fraud under immigration law.

Fraud consists of a false representation of a material fact made with knowledge of its falsity and with intent to deceive the other party. The representation must be believed and acted upon by the party deceived to his disadvantage.

To be inadmissible for a past misrepresentation, a person must have sought to procure a visa, green card or other immigration benefit by willfully misrepresenting a material fact. In order to be inadmissible on this basis, there must be both (1) a “willful misrepresentation”, and (2) “of a material fact.” Both of these terms involve complex legal issues that should be discussed with an immigration lawyer. Not every statement that is called a “misrepresentation” by an immigration officer will satisfy the legal requirements of a “willful misrepresentation” and “material fact.”

If you have been told that you are inadmissible due to misrepresentation or fraud, you should check with an immigration lawyer to see if you can challenge the finding of misrepresentation or fraud. Although it can be difficult to challenge these findings by an immigration officer, because these findings make you permanently inadmisssible it is often best to challenge these findings if there is a legal basis for doing so.

In some cases, you can challenge a finding of inadmissibility by showing that:

  • There was no fraud or misrepresentation
  • That any fraud was not intentional
  • That any misrepresentation was not willful
  • That any fraud or misrepresentation was not material

Making these challenges is a complex area of immigration law and it is best to work with an immigration lawyer if you plan to challenge a finding of inadmissibility based on fraud or willful misrepresentation.

Misrepresentation or Fraud Waiver Requirements

You may be able to overcome a permanent inadmissibility due to a misrepresentation or fraud if you receive a misrepresentation waiver.

To qualify for this type of waiver, you must show “extreme hardship” to a United States citizen or permanent resident spouse or parent.

It can be very difficult to prove that you meet the extreme hardship standard. It isn’t enough to show that it would be financially difficult or emotionally upsetting if you are separated from your family. You have to show that the hardship to your qualifying relative would be extreme compared to the hardship normally encountered in a family separation. Most people will benefit from the assistance of an immigration lawyer in preparing their waiver application.

Before Beginning Your Misrepresentation or Fraud Waiver Application

Make sure that you understand the waiver application process and what it takes to win a waiver case before you begin your misrepresentation or fraud waiver application. You can learn more about this type of waiver by exploring the articles on this website, requesting a free copy of the Hardship Letter Special Report, watching an immigration waiver webinar or viewing the immigration videos on this website. All of this information is available for free before you ever talk to an immigration lawyer. By learning more about the misrepresentation or fraud waiver process before you do anything else, you’ll be able to better decide whether you should hire an immigration lawyer and what questions you should ask your lawyer if you decide to work with one.

Learn more about misrepresentation waivers

To help you better understand misrepresentation waivers, I've collected answers to some of the most frequently asked questions that I run into as an Idaho immigration lawyer:

Frequently Asked Questions About Misrepresentation Waivers