07 Jan When do you need a fraud waiver?
Sometimes, for lack of guidance from an experienced immigration attorney, applicants for immigration benefits, including those seeking K-1 or K-2 visas, makes a fraudulent action or willful misrepresentation. In these cases, the applicants are required to file Form I-601 or Application for Waiver of Ground of Inadmissibility.
Q: What grounds of inadmissibility may be covered by a waiver?
A: The following grounds of inadmissibility under the Immigration and Naturalization Act (INA) are as follows: health-related grounds, criminal and related grounds, immigrant membership in a totalitarian party, misrepresentation in immigration matters, smugglers, subject to civil penalty, and unlawful presence in the U.S. for at least 180 days, beginning on or after April 1, 1997, followed by departure from the U.S.
Q: How long is the validity of the waiver?
A: If the waiver is granted, then, except for K-1 and K-2 nonimmigrant’s and conditional permanent residents, the grant permanently waives fraud 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 LPR status.
Q: If you are a conditional permanent resident, is the waiver also permanent in nature?
A: For conditional permanent residents, 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.
Q: Does the waiver cover all grounds of inadmissibility?
A: A waiver applies only to the specific grounds of inadmissibility and related crimes, events or incidents specified in the waiver application. 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.
Q: Are there conditions for the grant of a Waiver to K-1 or K-2 nonimmigrant visa applicants?
A: If the applicant seeks a waiver to obtain a fiancé(e) visa (K-1 or K-2), the waiver’s approval is conditioned upon the K-1 nonimmigrant marrying the U.S. citizen who filed the fiancé(e) petition. The waiver becomes permanent once the K-1 marries the petitioner.
Q: What happens to the waiver if the K-1 nonimmigrant does not marry the petitioner?
A: In general, 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.
Q: What happens if at the time of entry, the immigration officer declares the visa holder inadmissible based on documentary requirements?
A: 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.
Q: Can you give an example of the above?
A: For example, an applicant misrepresents a material fact during the overseas nonimmigrant visa application process. The Department of State, however, grants her a visa. Later, she applies for adjustment of status. During her adjustment interview, an officer discovers her misrepresentation and finds her inadmissible for both willful misrepresentation and failure to comply with documentary requirements. The applicant then applies for a waiver of inadmissibility for willful misrepresentation. 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.
Note: This is not a legal advice. You should consult with an immigration attorney about your specific circumstances.