By Suzanne E. Vazquez | US Immigration Attorney
Posted: Julio 30, 2015
The § 237(a)(1)(H) waiver is a humanitarian waiver created by Congress for certain deportable lawful permanent residents with a qualifying relative. It is a form of relief from removal (deportation). It provides a discretionary waiver for certain misrepresentations and fraud at the time of admission. If an applicant is eligible, this waiver provides a significant relief from removal which results in termination of proceedings. The full statutory waiver provision reads as follows:
“Waiver authorized for certain misrepresentations. The provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in Section 1182(a)(6)(C)(i) of this title, whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in paragraph (4)(D)) who--
A waiver of removal for fraud or misrepresentation granted under this subparagraph shall also operate to waive removal based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation.”
Section § 237(a)(1)(H) is a waiver of deportability and it is specifically for removal charges based on INA § 237(a)(1)(A) (grounds of deportation). It is available to non-citizens who have been admitted and waives deportation grounds of removal. Thus, it does not waive any removal charges found in INA section 212 (inadmissibility). Mainly, section § 237(a)(1)(H) waives three elements:
The § 237(a)(1)(H) waiver is specific to “non-citizens with a qualifying family member who meet certain other requirements” as well as to VAWA self-petitioners.
More specifically, the first class, non-citizens with a qualifying family member who meet certain other requirements, consists of a non-citizen who:
VAWA self-petitioners, which are defined under INA § 101(a)(51), have no additional specific limitations on the eligibility requirements. The VAWA self-petitioner only has to show that they were admitted to the United States and that the admission involved fraud or misrepresentation, regardless of it being willful or innocent. VAWA self-petitioners do not need a qualifying relative.
In a recent precedent decision by the Board of Immigration Appeals (BIA), it was concluded that yes, the § 237(a)(1)(H) waiver may also be available for fraud committed during adjustment of status. The decision explains that, Section 237(a)(1) of the Act applies to an alien who is “inadmissible at time of entry or of adjustment of status or violates status.” Matter of Agour, 26 I&N Dec. 566 (BIA 2015). Therefore, an alien may be granted this waiver for fraud or misrepresentation committed at the time of his or her adjustment of status.
It is important to keep in mind that, even when an applicant is eligible to apply for this waiver by statute, an immigration judge has the discretion to deny or approve the waiver. This was further explained in the BIA decision, Matter of Tijam, which concluded that an immigration judge “must look at each of the adverse factors, including the alien’s initial fraud, to determine whether, in light of the factors presented, a waiver of deportability should be granted to maintain the alien’s family unity and strong ties to the United States.” Matter of Tijam, 22 I&N Dec. 408, 417 (1998). According to this decision, there are several negative and positive factors that an immigration judge should take into consideration. Negative factors can include the nature and underlying circumstances of the fraud or misrepresentation involved; if the applicant has a criminal record and, if so, the nature, seriousness, and recency of that record; and any other evidence that deems the applicant of poor moral character. Positive factors considered may include family ties in the United States; residence of a long duration in the United States; employment history; property or business ties; evidence of value and service to the community; as well as other evidence of the alien's good moral character. Id. at 412, 413. An immigration judge takes into account all factors, both negative and positive, when exercising discretion.
Since this waiver is for relief from removal, the applicant, while in proceedings, should apply for this waiver with an immigration judge. There are no specific forms to be filed, unlike other waivers and, in addition, there is also no filing fee for the § 237(a)(1)(H) waiver.
As always, it is advisable to contact a highly reputable and experienced immigration lawyer to discuss your case and find the best options for your particular case. Please contact us if you have further questions or need assistance. We will be happy to help you. You may call the office on 407-674-6968 or by contact by email: Info@vpimmigration.com.