What is a § 237(a)(1)(H) Waiver?
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--
- (I) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and
(II) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 1182(a) of this title which were a direct result of that fraud or misrepresentation. OR - is a VAWA self-petitioner.
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.”
Which grounds of removal may be waived?
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:
- Removability based primarily upon the deportability ground;
- Any underlying inadmissibility ground that directly resulted from the fraud or misrepresentation committed at admission
- Waives the underlying fraud
Who qualifies for a § 237(a)(1)(H) waiver?
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:
- Has a qualifying family member (a spouse, parent, son or daughter who is a U.S. Citizen or lawful permanent resident). No hardship to the relative or applicant has to be demonstrated;
- Was in possession of an immigrant visa or equivalent document at the time of admission. In other words, a visa or equivalent document with which the applicant gained admission, even when it was procured by fraud or misrepresentation; and
- Was otherwise admissible at the time of admission.
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.
Can an applicant waive any fraud that occurred after initial entry into the United States?
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.
What factors do Immigration Judges take into consideration when reviewing a 237(a)(1)(H) waiver?
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.
How does an applicant apply for a § 237(a)(1)(H) waiver?
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 fill out the online form located on this page, and we will contact you shortly.