With the ever increasing difficulties in obtaining a valid visa to enter and work in the United States, individuals often feel that there are no viable options but to resort to fraud.From the Philippines, a common scenario involves individuals who go to a travel agency that advises and assists them with obtaining a tourist visa under an assumed name and/or different date of birth. Realizing that the occurrence of fraud and misrepresentation continues to grow, the immigration laws have been periodically amended since 1986 to impose more stringent penalties against individuals who commit fraud or misrepresentation when entering the United States.At the same time, the waivers available to overcome such fraud or misrepresentations have been progressively narrowed so as to make it increasingly more difficult to obtain such a waiver. For individuals who are seeking to obtain lawful permanent residency, any past fraud or misrepresentation (such as the use of an assumed name) renders the applicant inadmissible and unable to legalize status.This includes all individuals who have committed fraud, even those who are married to a United States citizen.However, under section 212(i) of the Immigration and Nationality Act, the applicant can try to get past the inadmissibility problem by applying for a fraud waiver. A 212(i) waiver can be granted if it can be shown that the applicant’s United States citizen or lawful permanent resident spouse or parent (i.e. qualifying relative) would experience extreme hardship if the applicant is denied permanent residency.Applicant’s should note that this waiver does not allow a showing of extreme hardship to children, so unless an individual has a US citizen parent or spouse they would not qualify to apply for a fraud waiver. The laws do not specifically define what qualifies as “extreme hardship.”Rather, the definition has been developed over time on a case by case basis.As well, the CIS and United States Embassies have established various criteria that they consider.There are no specific requirements as to what must be shown; rather, the CIS and Embassies take a look at the totality of the circumstances to determine whether extreme hardship has been shown.The following are some criteria used in evaluating extreme hardship: Health:Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in the applicant’s home country, anticipated duration of treatment; whether a condition is chronic or acute, or long-or-short term. Financial Considerations:Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living ;ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (i.e. elderly and infirm parents). Education:Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade; availability of special requirements, such as training programs or internships in specific fields. Personal Considerations:Close relatives in the United States and/or the applicant’s own country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States. Special Factors:Cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm or injury; social ostracism or stigma; access to social institutions or structures. With respect to these factors, it is reminded that the key term in the law is “extreme” hardship and therefore only in cases of real, actual or prospective injury to the qualifying relative will a fraud waiver be granted.Recently, the CIS has been denying an abundance of fraud waiver applications stating that this extreme hardship requirement has not been fulfilled.Applicants therefore need to ensure that a fraud waiver application clearly addresses the reasons why extreme hardship would be encountered and that supporting documentation evidencing the hardship claims are submitted.
Aquino & Aquino, A Professional Law Corporation, also handles family law, employment discrimination, unlawful termination, criminal defense, personal injury, wills, and living trusts.