No fraud waiver needed, despite fraud

Ordinarily, when a person commits fraud or makes a misrepresentation in connection with applying for an immigration benefit, the person is required to file a fraud waiver (Form I – 601). However, in some cases, even when a person does make a misrepresentation, a fraud waiver may not necessarily be required.

In one of our recent cases, our client was charged with fraud but, on appeal, the Administrative Appeals Office (AAO) in Washington DC agreed with us that no fraud waiver should be required because the alleged misrepresentation was not “material.”

In many cases, people automatically accept USCIS’s determination that they committed fraud, and that a fraud waiver is required. But that is not always the case. In this particular case, the client was petitioned by her US citizen husband, but the USCIS Field Office Director denied her fraud waiver, concluding she had made a misrepresentation, and her husband (her “qualifying relative”) would not suffer “extreme hardship” if she were not allowed to remain in the US.               

We appealed the denial to the AAO, arguing that while her misrepresentation was intentional, it was harmless and not material. The AAO agreed, noting that while she made a misrepresentation, the “true facts” would not have rendered her inadmissible. In other words, even if a person makes a misrepresentation, the misrepresentation must be material, meaning the person would be ineligible for the immigration benefit based on the “true facts,” or the misrepresentation tends to “shut off a line of inquiry” which would be relevant to the person’s eligibility.

The AAO concluded the misrepresentation was not material, because “the applicant would not have been inadmissible, removable or ineligible on the true facts.” Moreover, “her misrepresentation did not cut off a line of inquiry, which would have been relevant to her eligibility and which might well have resulted in a proper determination that she was inadmissible.” In other words, even though she made a misrepresentation, she was still eligible for her immigration benefit, whether that misrepresentation was true or not, because it was not material. Accordingly, the AAO agreed that her waiver application was unnecessary and she was eligible for a green card without any fraud waiver being required.

I know many people are accused of making a misrepresentation, and are required to submit a fraud waiver. Certainly, if the misrepresentation was “material,” then a fraud waiver would be necessary. However, as this case points out, perhaps the misrepresentation was not material, and therefore would not constitute fraud or misrepresentation, requiring a fraud waiver. (Please note that this “success story” does not mean your case is guaranteed or you will have a similar outcome.) Each case to be analyzed on case-by-case basis.

If you are accused of committing fraud or misrepresentation, you should seek the advice of an immigration attorney, who can evaluate your situation, including whether or not your misrepresentation was material according to the legal definition, such that a fraud waiver should not be even be required. Don’t just blindly accept USCIS’s finding, if it is not in accordance with the legal requirements or definitions. Instead, you should fight!

Michael J. Gurfinkel is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein (including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

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