Waiver of Fraud or Misrepresentation

Under the U.S. immigration laws, an individual cannot get his/her permanent resident status if he/she is inadmissible. A common ground of inadmissibility is the procurement of a visa, other documents, or admission to the U.S. by fraud or willful misrepresentation.

But this ground of inadmissibility may be waived if the applicant can prove that the refusal of admission to the U.S. of such individual would result in extreme hardship to the citizen or lawful resident spouse or parent of such an alien.

The term “exceptional hardship” is not exactly defined in the law. But there are factors that can be presented to a judge for his/her evaluation.

These factors include: the ties to the home country of the qualifying relative; the ties outside the U.S. of the qualifying relative; the conditions in the country to which the qualifying relative would have to relocate and the extent of his/her ties in such country; the financial impact of departure from this country; and the unavailability of suitable medical care in the country of relocation when the health condition of the qualifying relative is raised.

This is what a Chinese national did in a recent case. He sought a waiver of the ground of inadmissibility citing extreme hardship to his father who was already a U.S. citizen. The District Director denied the waiver. He appealed the case to the Administrative Appeals Office and the appeal was sustained.

The applicant entered the U.S. through Honolulu, Hawaii in 1991 using a false passport from another country.

When he applied for adjustment of status on the basis of a relative petition, he was found inadmissible on the ground of fraud or willful misrepresentation.

In his waiver application, he presented extensive documentation to prove extreme hardship on the part of his U.S. citizen father if they were separated.

First, the applicant showed that while his father was born in China and left in 1988, he no longer had relatives in China with whom he maintained communication and contact. He showed that his father was 57 years old and would have no employment prospects in China, being uneducated and ailing. Also, most people retire at 50 years old in China.

Medical records were presented to show the physical and mental health ailments of his father, including an evaluation conducted by a clinical social worker showing anxiety and depression that would be exacerbated if he would be separated from his son or relocated to China. Aside from this, he had multiple and chronic physical illnesses such as high blood pressure, post-surgical intestinal and abdominal problems, rectal bleeding and inability to walk long distances.

The documents submitted showed that the son was the main caregiver of the father and that even though he lived in Atlanta while his father lived in New York, he made himself readily available and traveled to New York whenever his father was ill or needed emotional or psychological support. The other son who lived in California was no longer in contact with them.

The father, on the other hand, could not readily travel to China or stay there for extended periods if the son relocated to China.

They also showed that because the applicant and his wife had exceeded the one-child policy in China since they have four children, they ran the risk of being sterilized upon their return and presented an expert’s affidavit on China’s policy and practice to this effect.

After reviewing the evidence presented and weighing all the factors, the Administrative Appeals Office ruled that applicant met the burden of proof and granted the waiver of the grounds of inadmissibility on account of the extreme hardship on his U.S. citizen father if the applicant is removed from the U.S. and deported back to China.