New York Lawyer's Legal Updates

Marriage Fraud And 237(a)(1)(H) Waiver

Author: New York Immigration Lawyer Alena Shautsova

False statements during the immigration process generally make a person inadmissible and deportable but eligible for a waiver. However, some particular statements come with even worse consequences: permanent bar from the US and disqualifier for any immigration benefits. For example, claims to US citizenship, false asylum claims and marriage fraud claims would do just that: a person would be forever banned from the US. There are, of course, certain, very limited circumstances when a person would still have a chance.

MARRIAGE FRAUD and 237(a)(a)(H) waiver

Marriage fraud would be found if the couple’s marriage was invalid from inception. If the marriage is not “perfect”, people do not cohabit together for some explainable reason or the couple had a good marriage which fell apart: there is no marriage fraud. Similarly, if one of the spouses had other reasons for the marriage, including immigration reasons (and not just love) the marriage is not fraudulent. If, however, the marriage was entered just for the purposes of cheating the Immigration laws, there was marriage fraud. Marriage fraud bans a person from having an immigrant petition approved on his/her behalf (such as I 130 or I 140 for example). It does not ban a U or T status to be approved but would require a special waiver to be submitted (which, as you can imagine, will be very hard to get). The Attorney General may waive a removal charge that is based on inadmissibility for misrepresenting a material fact to gain admission. If he does so, the Act automatically extends that fraud waiver to other removal provisions based on “grounds of inadmissibility directly resulting from such fraud or misrepresentation.” 8 U.S.C. § 1227(a)(1)(H).

There is, however, a waiver, for marriage fraud which is available only when:

(1) A person was in fact granted a visa or permanent residency based on that fraudulent marriage: 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) [misrepresentation to gain admission] 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) [Nazi removal charge]) who...

(2) (i)(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

(3) 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) [inadmissible because entering to perform unauthorized labor] and (7)(A) [inadmissible because applying for admission without proper documents] of section 1182(a) of this title which were a direct result of that fraud or misrepresentation.

As such, the waiver should be available to those who gain initial admission to the US via an immigrant visa and those who gain admission during the adjustment of status process. (See Matter of Agour, 26 I&N Dec. 566 (BIA 2015) holding that “adjustment of status” constitutes an “admission” for purpose of applying for a section 237(a)(1)(H) waiver.) Hence, there can be a strange outcome: a person may enter on a sufficiently false fiancé visa, adjust his/her status and be eligible for a waiver. But if the same person enters on the same visa and does not adjust status first, he/she is not eligible for a waiver.

20 October 2018
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