March 22, 2010: After 212(i) Waiver is Denied, What Next?

After 212(i) Waiver is Denied, What Next?

I entered the USA with a fraudulent passport. I applied for asylum in 2001. In 2002, my asylum case was denied but I was granted withholding of removal.

In 2007, I got married (bonafide) to an American citizen. I filed for adjustment of status along with a waiver because of the fraudulent passport. The marriage part of the case was approved, but the waiver was denied. We appealed the denial of the fraud wavier and it was dismissed. What should I do?
— Anonymous

From the information that has been provided, it appears that you filed a 212(i) waiver along with your adjustment of status application. Generally, a 212(i) waiver is appropriate when an adjustment of status applicant has committed fraudulent or material misrepresentation in violation of Immigration and Nationality Act (INA) section 212(a)(6)(C)(i).

Examples of fraudulent or material misrepresentation include, but are not limited to, entry into the United States using a photo-switch passport or a false birth certificate. Under the INA, a person is deemed inadmissible to the United States if they entered the United States with a fraudulent passport or birth certificate, rendering that person ineligible to adjust their status to lawful permanent residence due to their fraudulent admission.

The 212(i) waiver is used to ‘waive’, or forgive, the ground of inadmissibility. The 212(i) waiver will only be granted where an applicant can prove that his or her United States citizen or lawful permanent resident spouse and/or parent will suffer extreme hardship should the applicant be removed from the United States.

Factors that are considered when determining whether a United States citizen or lawful permanent resident relative will suffer extreme hardship include ties to the United States and ties outside the United States, country conditions in the country of relocation, financial impact, and health conditions, among other factors.

Since the 212(i) waiver was denied by the United States Citizenship and Immigration Service (USCIS), the corresponding adjustment of status application was also denied because your inadmissibility was not waived. You may be able to re-file the adjustment of status application with USCIS with a new 212(i) waiver if you have additional supporting evidence.

However, it appears that you will likely receive a Notice to Appear (NTA) to go before an immigration judge for removal proceedings. The NTA should indicate the law that you violated and the reasons why you are removable. At that time, you may indicate to the Judge that your relief from removal is adjustment of status and 212(i) waiver for the inadmissibility charge.

It may be wise for you to contact an experienced immigration attorney to discuss all of your options and to review your previously filed 212(i) waiver.

Michael Shane and Evan Shane, Immigration Attorneys