​

A. Purpose​

​

An applicant ​who ​is inadmissible for fraud or willful misrepresentation​ ​may be eligible for a waiver.​
^[1]
See INA 212(a)(6)(C)(i). ​A waiver of inadmissibility allows an applicant to enter the United States or obtain an immigration benefit despite having been found inadmissible. ​

​

The purpose of a waiver for inadmissibility due to fraud or willful misrepresentation​
^[2]
See INA 212(a)(6)(C)(i). is to:​

​

•Provide humanitarian relief and promote family unity;​

​

•Ensure the applicant merits favorable discretion based on positive factors outweighing the applicant’s fraud or willful misrepresentation and any other negative factors; and​

​

•Allow t​he applicant to overcome the inadmissibility or removability ground.​

​

B. Background​

​

Prior to September 30, 1996, a waiver was available to applicants who could show either​:​ ​

​

•More than 10 years had passed since the date of the fra​ud or willful misrepresentation;​ or​

​

•The applicant’s ​U.S.​ citizen or lawful permanent resident (LPR) parents, spouse, or children would suffer extreme hardship if the applicant was refused admission to the ​United States​. ​

​

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)​
^[3]
See Illegal Immigration Reform and Immigrant Responsibility Act, section 349, Pub. L. 104-208 (September 30, 1996). limited the ​availability of the ​waiver​ and eliminated the possibility of applying for a waiver if more than 10 years have passed​.​
^[4]
Under INA 212(i). The applicable law for the adjudication of an INA 212(i) waiver is the law in effect on the date of the decision on the waiver application. See Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 563 (BIA 1999). A waiver is now available only to applicants who can demonstrate extreme hardship to:​

​

•A U.S. citizen parent or spouse; ​

​

•An LPR parent or spouse;​

​

•A U.S. citizen fiancé(e)​;​
^[5]
A fiancé(e) is not yet the spouse of a U.S. citizen. However, K inadmissibility issues are generally addressed as if the fiancé(e) were seeking admission as an immigrant. See 22 CFR 41.81(d). See Matter of Sesay, 25 I&N Dec. 431 (BIA 2011). As discussed below, the grant of an INA 212(i) waiver to a K nonimmigrant fiancé(e) or fiancé(e) child is conditioned on the fiancé(e)’s actually marrying the citizen petitioner. See 8 CFR 212.7(a)(4)(iii). or​

​

•In the case of a​ Violence Against Women Act (​VAWA​)​ self-petitioner: the VAWA self-petitioner, or his or her U.S. citizen, LPR, or qualified alien parent or child.​

​

IIRIRA made other changes that play a role in the waiver adjudication.​ IIRIRA​ ​modified the inadmissibility provision​
^[6]
See INA 212(a)(6)(C). by creating two inadmissibility grounds within the same provision: ​

​

•Inadmissibility for fraud ​or willful​ misrepresentation;​
^[7]
See INA 212(a)(6)(C)(i). and ​
​

•Inadmissibility for falsely claiming ​U.S.​ citizenship on or after September 30, 1996.​
^[8]
See INA 212(a)(6)(C)(ii), as implemented by the Illegal Immigration Reform and Immigrant Responsibility Act, section 344(a), Pub. L. 104-208 (September 30, 1996). ​

​

The waiver​
^[9]
Under INA 212(i). discussed in this Part G ​only​ ​applies to ​applicants​ who are inadmissible for fraud ​or​ ​willful misrepresentation.​
^[10]
See INA 212(a)(6)(C)(i). ​

​

Inadmissibility based on a false claim to U.S. citizenship made on or after September 30, 1996​
^[11]
IIRIRA made September 30, 1996 the effective date of the new INA 212(a)(6)(C)(ii). See Illegal Immigration Reform and Immigrant Responsibility Act, section 344(c), Pub. L. 104-208 (September 30, 1996). cannot be waived through a waiver for fraud or willful misrepresentation.​
^[12]
See INA 212(i). Some separate adjustment mechanisms, such as INA 209 (for refugees and asylees) may have more broadly available waivers that could apply to an applicant who is inadmissible under INA 212(a)(6)(C)(ii). For example, INA 209(c) allows the waiver of many grounds of inadmissibility, and does not list INA 212(a)(6)(C)(ii) as a ground that cannot be waived. However, because IIRIRA’s changes were not retroactive, ​applicant​s who falsely claimed U.S. citizenship before September 30, 1996, are considered inadmissible for fraud or willful misrepresentation and may still seek the fraud or willful misrepresentation waiver.​

​

C. Scope​

​

The availability of a waiver of inadmissibility based on fraud ​or willful​ misrepresentation depends on the immigration benefit ​the​ applicant is seeking​.​ ​The ​guidance ​in this Policy Manual ​part ​only addresses the processes used for the fraud or willful misrepresentation waiver​
^[13]
This guidance only addresses the waiver under INA 212(i). The fraud or willful misrepresentation waiver discussed in this guidance is also available to applicants who obtained, or attempted to obtain, a benefit based on falsely claiming U.S. citizenship before September 30, 1996. ​available​ ​to ​applicant​s ​listed in the table below.​

​

​

​

Applicants seeking other immigration benefits may have different means to waive inadmissibility for fraud or willful misrepresentation. ​

​

D. Legal ​Authorities​

​

•INA 212(a)(6)(C)(i)​ – ​Illegal Entrants and Immigration V​iolators – Misrepresentation​
^[14]
This includes false claims to U.S. citizenship made before September 30, 1996.
​

•INA 212(i)​ ​– ​Admission of Immigrant Excludable for Fraud or W​illful ​Misrepresentation of M​aterial ​F​act​

​

E. Applicants Who May Have a Waiver Available​

​

The chart below details who may apply for a waiver of inadmissibility based on fraud or willful misrepresentation and the relevant form. ​This chart includes waivers under ​INA 212(i)​ as well as waivers of inadmissibility for fraud or willful misrepresentation under other provisions of the INA​. ​

​

​

​

1. ​Immigrants, Adjustment of Status Applicants, and K and​ V Visa Applicants​

​

USCIS​ has the discretion to waive inadmissibility based on fraud or willful misrepresentation​
^[17]
Under INA 212(i). for:​

​

•A VAWA self-petitioner seeking adjustment of status;​

​

•A​n​ immigrant visa applicant who is the spouse, son, or daughter of a U.S. citizen or LPR;​

​

•A​n​ adjustment of status applicant who is the spouse, son, or daughter of a U.S. citizen or LPR;​

​

•A V visa applicant who is the spouse, son, or daughter of a U.S. citizen or LPR; ​

​

•A K visa applicant who is the fiancé(e) of a U.S. citizen, or the applicant’s children​;​ ​
^[18]
A fiancé(e) is not yet the spouse of the U.S. citizen. K inadmissibility issues, however, are generally addressed as if the fiancé(e) were seeking admission as an immigrant. See 22 CFR 41.81(d). See Matter of Sesay, 25 I&N Dec. 431 (BIA 2011). As discussed below, the grant of an INA 212(i) waiver to a K nonimmigrant fiancé(e) or fiancé(e) child is conditioned on the fiancé(e)’s actually marrying the citizen petitioner. ​and​

​

•A K-3 or K-4 visa applicant​.​
^[19]
Foreign spouses or step-children of U.S. citizens.

​

The instructions to​ ​Form I-601​ ​and the USCIS website ​detail when and where the applicant should file the waiver.​
^[20]
For information on the adjudication of these waivers, see Chapter 2, Adjudication of Fraud and Willful Misrepresentation Waivers [9 USCIS-PM G.2]. ​

​

2. Refugees​

​

An ​applicant​ seeking admission ​as a​ refugee and who is inadmissible for fraud or ​willful ​misrepresentation may seek a waiver.​
^[21]
These applicants seek a waiver under INA 207. The waiver may be approved if the grant serves humanitarian purpo​s​es, family unity, or other public interests. The waiver is processed overseas as part of the refugee package.​

​

3. Asylee and Refugee​ ​Based Adjustment Applicants ​

​

A​t the time of adjustment​, a​sylees and refugees seeking adjustment of status may apply for ​a waiver of ​inadmissibility for fraud or willful misrepresentation​.​
^[22]
These applicants seek a waiver under INA 209. The waiver can be approved if the grant serves humanitarian purposes, family unity, or other public interests. Under current USCIS policy, the officer has the discretion to grant the waiver with or without a waiver application​ for certain grounds of inadmissibility​.​

​

Waiver applications for refugees are usually adjudicated overseas before the ​applicant​ ​is ​admitted in the refugee classification. ​However, i​f the refugee is inadmissible based on actions that occurred​ ​prior to ​or after ​admission, the refugee can apply for a waiver when seeking adjustment.​

​

4. Legalization and SAW Applicants ​

​

Legalization applicants​
^[23]
See INA 245A and any legalization-related class settlement agreements. and Special Agricultural Workers (SAW) applicants​
^[24]
See INA 210. may be granted a waiver of inadmissibility based on fraud ​or​ willful misrepresentation if the grant serves humanitarian purposes, family unity, or other public interests.​
^[25]
For more information on waivers for legalization applicants see INA 245A(d)(2)(B)(i). See 8 CFR 245a.2(k), and 8 CFR 245a.18. For more information on waivers for SAW applicants see INA 210(c)(2)(B)(i). ​

​

5. Nonimmigrants, including T and U Nonimmigrant Visa Applicants​ ​

​

An​ ​applicant​ seeking admission as a​ nonimmigrant​ and who is inadmissible for fraud or willful misrepresentation​ may obtain a waiver for advance permission to enter the United States.​
^[26]
These applicants seek relief under INA 212(d)(3). This waiver is granted at the discretion of the Secretary of Homeland Security​. ​

​

If the applicant is seeking a nonimmigrant visa (other than ​K, ​T​, U, ​and ​V​) overseas, the applicant must apply for the waiver through a U.S. Consulate. ​The ​Customs and Border Protection (CBP) Admissibility Review Office (ARO)​ adjudicates the waiver​.​
^[27]
See INA 212(d)(3)(A)(i). ​If the applicant is not required to have a visa (other than visa waiver applicants) and is applying for the waiver at the U.S. border, the application is filed with CBP​.​
^[28]
See Customs and Border Protection website for more information.

​

If the ​applicant​ is applying for a T or U​ nonimmigrant​ ​v​isa, the applicant must always file the waiver application with USCIS​. ​

​

If the applicant is applying for a K or V nonimmigrant visa, the applicant is generally treated as if he or she is an intending immigrant. Therefore, ​the applicant ​must file a waiver application with USCIS if inadmissible for fraud or willful misrepresentation.​
^[29]
See INA 212(i). If USCIS grants the waiver, DOS will grant a nonimmigrant waiver​
^[30]
See INA 212(d)(3). without ​CBP ​involvement.​

​

​

A. Eligibility​

​

An ​applicant​ inadmissible for fraud or willful misrepresentation ​may be ​eligible for a waiver​. ​Before adjudicating the waiver, the officer should determine if the ​applicant​ is inadmissible for fraud or willful misrepresentation​.​
^[2]
For more on inadmissibility for fraud and willful misrepresentation, see Volume 8, Admissibility, Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J].

​

If inadmissible, the ​applicant​ must​ meet the following requirements​ before a waiver can be granted​:​

​

•The ​applicant must show that ​denial of admission to or removal from the United States would result in extreme hardship to his or her qualifying relative​ (or ​if the applicant is a VAWA self-petitioner​, to himself or herself)​; and ​

​

•The ​applicant​ must show that a​ favorable exercise of discretion is warranted.​
^[3]
Once found inadmissible, the underlying fraud or willful misrepresentation is not considered again until the officer determines whether the waiver is warranted as a matter of discretion. For more information, see Chapter 3, Effect of Granting a Waiver [9 USCIS-PM G.3]. ​
​ ​

​

B. Waiver Adjudication​

​

1. Determine Whether the Applicant Has a Qualifying Relative​

​

For cases other than VAWA self-petitioners, t​he applicant must have a qualifying relative who is either the applicant’s:​

​

•U.S. citizen parent or spouse;​
​

•Lawful permanent resident (​LPR​)​ parent or spouse; or​
​

•U.S. citizen ​fiancé(​e)​ petitioner (for K-1 or K-2 visa applicants only)​.​

​

U.S. citizen or LPR children are not qualifying relatives. ​

​

A VAWA self-petitioner​ does not need a qualifying relative, since the VAWA self-petitioner may claim extreme hardship to himself or herself​. ​The VAWA self-petitioner ​may ​also ​claim ​extreme hardship to ​a U.S. citizen, LPR, or qualified alien parent or child.​
^[4]
See INA 212(i), INA 204(a)(1)(A)(iii), and INA 204(a)(1)(A)(iv). ​

​

The evidence needed to establish that an applicant has a qualif​ying​ relative is generally the same as the evidence required to establish the underlying relationship for a relative or fiancé(e) visa petition​.​

​

2. Make an Extreme Hardship Determination​

​

An applicant must demonstrate that his or her qualifying relative ​(or the applicant himself or herself, if a VAWA self-petitioner) ​would suffer extreme hardship if the applicant ​were​ refused admission​ to​ or removed from the United States as a result of the denial of the waiver. ​

​

If the applicant fails to establish extreme hardship, then the officer must deny the waiver application because the applicant has not met the statutory requirements of the waiver. Before denying the waiver, the officer should follow ​standard operating procedures​ regarding issuance of a Request for Evidence or Notice of Intent to Deny. ​

​

In general, ​a finding that the applicant has not shown extreme hardship is sufficient to support a denial of the waiver application. If the applicant has not established extreme hardship, then it is unnecessary to determine whether the waiver would have been granted as a matter of discretion. ​There may be instances, however, where the applicant’s past actions were so egregious that the officer may want to note in the decision that even if extreme hardship were found, the application would be denied as a matter of discretion. ​

​

If the applicant has established extreme hardship, the officer should proceed with the discretionary determination. ​

​

3. Analyze Whether the Waiver Should Be Granted as a Matter of Discretion​

​

A fraud ​or ​willful misrepresentation waiver ​generally ​requires an officer to consider whether granting the waiver is warranted as a matter of discretion. The officer should determine whether the applicant’s positive factors outweigh the negative factors​. ​

​

The finding of extreme hardship experienced by a qualifying relative (or the VAWA self-petitioner himself or herself) is the first positive factor for consideration. ​The underlying fraud ​or​ willful misrepresentation itself is ​the first​ negative factor to consider.​
^[5]
See INS v. Yueh-Shaio Yang, 519 U.S. 26 (1996). See Matter of Cervantes-Gonzalez, 22 I&N Dec. 560 (BIA 1999). The nature, seriousness, and underlying circumstances of the fraud or ​willful ​misrepresentation may ​influence the weight given to this negative factor. Considerations include, but are not limited to: ​

​

•The facts and circumstances surrounding the fraud or ​willful​ misrepresentation;​

​

•The reasons and motivations of the ​applicant​ ​when​ the fraud or ​willful misrepresentation was committed​;​

​

•Age or mental capacity of the applicant ​when​ the fraud was committed;​

​

•Whether the ​applicant​ has engaged in a pattern of fraud or whether it was merely an isolated act of misrepresentation​;​
^[6]
See INS v. Yueh-Shaio Yang, 519 U.S. 26 (1996). and​ ​
​

•The nature of the proceedings in which the ​applicant​ committed the fraud or ​willful ​misrepresentation.​
^[7]
In Matter of Tijam, 22 I&N Dec. 408, 413 (BIA 1998), the BIA stated that it considered making false statements under oath during the naturalization process to be an extremely serious adverse factor because of the Government’s interest in maintaining the integrity of that process.

​

​

A. Validity of an Approved Waiver​

​

If the waiver​
^[1]
See INA 212(i). is granted, ​then, except for K-1 and K-2 nonimmigrants and conditional permanent residents,​
^[2]
For K-1 and K-2 nonimmigrants granted a waiver, see Section B, Conditional Grant of a Waiver to K-1 or K-2 Nonimmigrant Visa Applicants [9 USCIS-PM G.3(B)]. ​the grant permanently waives ​fr​aud or willful misrepresentation included in the application for purposes of any future immigration benefits application, whether immigrant or nonimmigrant. ​The waiver remains valid even if the ​person​ later abandons or otherwise loses ​lawful permanent resident (​LPR​)​ status.​
^[3]
See 8 CFR 212.7(a)(4)(ii).

​

For conditional permanent residents,​
^[4]
Foreign nationals lawfully admitted for permanent residence on a conditional basis. See INA 216. the waiver only becomes valid indefinitely if and when the conditions are removed from ​his or her​ permanent resident status. Conversely, termination of the conditional permanent resident status also terminates the validity of the waiver.​
^[5]
See 8 CFR 212.7(a)(4)(iv). ​

​

A waiver applies only to the spec​ific grounds of inadmissibility​ and rela​ted crimes, events or incidents​ specified in the waiver application.​
^[6]
See 8 CFR 212.7(a)(4)(i). ​If, in the future, the ​applicant​ is found ​inadmissible for ​a separate incident of ​fraud or willful misrepresentation ​not ​already ​included in an approved waiver application, ​he or she will be required to file another waiver application.​ ​USCIS may reconsider an approval of a waiver at any time if it is determined that the decision has been made in error.​
^[7]
See 8 CFR 212.7(a)(4)(v).
​

B. Conditional Grant of a Waiver to K​-1 or K-2​ ​Nonimmigrant ​Visa Applicants​

​

If the applicant seeks a waiver to obtain a fiancé(e) visa (K-1 or K-2), the waiver’s approval is condition​ed upon the ​K-1 nonimmigrant ​marrying​ the U.S. citizen who filed the fiancé(e) petition​.​
^[8]
See 8 CFR 212.7(a)(4)(iii). T​he waiver becomes permanent​ once the K-1 marries the petitioner​,​ as discussed in ​the ​section on validity of an approved w​aiver​.​
^[9]
See Section A, Validity of an Approved Waiver [9 USCIS-PM G.3(A)].

​

If the K-1 nonimmigrant does not marry the petitioner​,​ ​the K-1​ and ​K-2 ​(if applicable) ​will remain inadmissible for purposes of any ​application for a benefit on any basis other than the proposed marriage between the K-1 and the K nonimmigrant visa petitioner​.​
^[10]
See 8 CFR 212.7(a)(4)(iii).

​

C. ​Inadmissibility Based on Documentary Requirements​
^[11]
See INA 212(a)(7). ​

​

If an ​applicant​ procured ​an​ immigration benefit by fraud or willful misrepresentation, ​the applicant ​may also be inadmissible for lack of documentary requirements at the time of entry. When an ​applicant​ is granted a waiver for fraud ​or​ willful misrepresentation, inadmissibility based on lack of documentary requirements at the time of entry is also implicitly waived. ​

​

Example​

​

An ​applicant​ misrepresents a material fact during the overseas nonimmigrant visa ​application ​process. The ​Department​ of State​, however, grants ​the applicant​ a visa. Later, ​the applicant​ applies for adjustment of status. During ​the​ adjustment interview, an officer discovers ​the​ misrepresentation and finds ​applicant​ inadmissible for both willful misrepresentation​
^[12]
See INA 212(a)(6)(C)(i). and failure to comply with documentary requirements.​
^[13]
See INA 212(a)(7)(B)(i) (for example, for not possessing a valid nonimmigrant visa). The applicant then applies for a waiver of inadmissibility for willful misrepresentation.​
^[14]
See INA 212(i). Approval of the waiver has the effect of waiving inadmissibility for willful misrepresentation and for the lack of a valid visa at the time of entry.​

​