Immigration Blog

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INA Section 237(a)(1)(H) Waiver Granted in Immigration Court

Feb 6, 2015 | Immigrant Visa, Immigration Court, immigration fraud, removal, VAWA, Waivers

This week, I won a case in immigration court in New York City for a client who was in jeopardy of losing her permanent resident (“green card”) status.

My client, a 25-year-old young woman from Pakistan, came to the United States as a lawful permanent resident in 2010 through a family-based petition that her lawful permanent resident father had filed for her years earlier. She was one of eight children that the father had petitioned for. All children arrived in the United States at various times, and my client was the last one to arrive in August of 2010. After arriving, she attended cosmetology school, started her own business (a salon), and continued to live the “American Dream.”

A few months after she arrived in the United States, in November of 2010, she filed a visa petition for her husband in Pakistan, so that he could come and join her in the United States. She did not consult with a qualified immigration lawyer before filing the petition. Instead, she went to a travel agency that helped her prepare the application and told her that everything would be fine and her husband will be with her very soon. The visa petition my client filed for her husband was denied, because USCIS informed my client that her entry as a lawful permanent resident in August of 2010 was “invalid” and “fraudulent,” since she immigrated under a visa issued for an “unmarried child of a lawful permanent resident,” the category under which my client’s father had filed her visa petition, when in fact she had gotten married five days before her arrival in the United States. Thus, at the time of her entry into the United States, she was not an “unmarried child” for whom the visa was issued, and she was not in possession of a valid immigrant visa.

The twist to the story…my client never told anyone in her family that she had gotten married in Pakistan! She never told her father, mother, or seven siblings. She only informed her family in mid-2011, almost a year after her marriage. She did not tell them due to her fear of their disapproval of the marriage that was not done according to tradition and with her father’s consent. My client also did not know the immigration laws of the United States, so she had no idea that if she got married before coming to America, her green card would be deemed invalid. Further, she was never questioned about her marital status at the airport when she arrived, so she never lied to any immigration official about her marital status. She thought everything was fine and that she could petition for her husband to come to America.

In the eyes of U.S. immigration laws, what my client did – enter the country based on an immigrant visa issued for “unmarried” child when she was actually married – constitutes fraud and misrepresentation, even if it was not willful but was merely innocent. As such, she was placed in removal proceedings, where the Department of Homeland Security alleged that my client was removable because she sought entry into the United States by fraud or willful misrepresentation, and that at the time of her entry, she was not in possession of a valid visa for admission. When she came to me for a consultation in 2013, as soon as I reviewed the charges against her, I knew she would be eligible for a special discretionary waiver reserved for lawful permanent residents in situations like hers. I explained to her that she was eligible for a waiver under Immigration and Nationality Act section 237(a)(1)(H).

INA § 237(a)(1)(H) provides a discretionary waiver in removal proceedings for certain misrepresentations and fraud at admission that would otherwise render deportable a lawful permanent resident (or a self-petitioner under the Violence Against Women Act (VAWA)). There are three basic requirements for this waiver for a lawful permanent resident: (1) the applicant must have a qualifying relative; (2) the applicant entered the country with an immigrant visa or equivalent document; and (3) the applicant is otherwise admissible to the United States.

The first requirement for the waiver is satisfied when the applicant has a “qualifying relative,” which means the applicant must be the spouse, parent, son, or daughter of a United States citizen or a lawful permanent resident. However, unlike other immigration waivers, this waiver does not require the applicant to demonstrate “hardship” to a qualifying relative. Moreover, the relationship with the qualifying relative needs to exist only at the time of the immigration judge’s decision; the relationship need not have existed at the time of the applicant’s entry into the United States.

The second requirement for eligibility is that the applicant possessed an immigrant visa or equivalent document with which they gained admission. An immigrant visa or equivalent document that was obtained by fraud or misrepresentation will satisfy this requirement, as the waiver – if granted in the exercise of discretion – is specifically intended to forgive this fraud or misrepresentation. Because an applicant must have possessed an immigrant visa or equivalent document at the time of admission, the waiver is available only to noncitizens who gained lawful permanent resident status at admission (meaning, entered the country with a green card). This waiver is not available to nonimmigrants (those who enter on temporary visas, such as tourist visas) who entered the country by fraud or willful misrepresentation.

Finally, the third requirement is met when the waiver applicant shows that but for the fraud or misrepresentation, he or she was otherwise admissible to the United States on all grounds at the time of admission.

INA § 237(a)(1)(H) waiver is also available to VAWA self-petitioners. VAWA self-petitioners must show only that they were admitted to the U.S. and that the admission involved fraud or misrepresentation, innocent or willful.

Success on an INA § 237(a)(1)(H) waiver means termination of removal proceedings, and the waiver will validate the lawful permanent resident status back to the date of original admission in that status. This is a big deal, because applicants do not lose time as permanent residents in order to file for naturalization, if otherwise eligible to become United States citizens.

INA § 237(a)(1)(H) is a discretionary waiver, which means that an immigration judge can grant or deny the waiver. An immigration judge will take into account all positive and negative factors in an applicant’s case, including the underlying fraud committed, whether it was willful or innocent.

In my client’s case, I worked closely with her and her entire family to present to the judge and the government lawyer through documentation all the positive equities she had in this country since her arrival only five years ago. I also prepared her and her father to testify in court to mitigate the “fraud” claim by showing that my client did not know that getting married would hurt her immigration case in any way, and that her family was not aware of her marriage until almost a year after she immigrated to the United States. At the trial in court, my client’s entire family was present to show support. After hearing my client’s story in her own words, and after reviewing the documents we had carefully prepared and submitted to show her positive equities, the immigration judge decided to grant her the waiver. The government lawyer was also impressed by our preparation and agreed to accept the judge’s decision as final, and did not appeal.

Needless the say, upon hearing the judge’s decision, my client and her family burst into tears of joy, expressing their gratitude to the judge for his favorable exercise of discretion. Even the judge was visibly emotional, seeing how his decision affected a close-knit family, who had lived in fear of losing a family member because of her mistake.

My client now runs a successful grocery store in New York with her family, and she hopes to become a United States citizen very soon!

Ruchi Thaker