BIA DECISION ALLOWS 237(A)(1)(H) WAIVERS FOR ADJUSTEES

On May 18, 2015 the Board of Immigration Appeals issued a precedential decision in Matter of Agour, 26 I & N Dec. 655 (BIA 2015) confirming that the old waiver under INA 237(a)(1)(H) is  available for people who committed fraud to get their green card within the United States, not just those who committed fraud outside. For years, this waiver was always understood to protect those who used fraud or misrepresentation to “enter” the United States. Although the language was changed from “enter” to “admitted” in 1996, the courts refused to allow people who committed fraud by filing Form I-485 from benefiting from this waiver.

Which makes little sense. If there is a law meant to protect family unity to forgive fraud, why should it matter where the fraud occurs?

The BIA, in an unpublished decision back in 2013, had found adjustment of status constituted an “admission” for purposes of this waiver but since it was unpublished, it was not a binding decision. Not anymore.

For many people who obtained their green card via a fraudulent marriage after being admitted to the United States, say, on a visitor visa, this decision will help.

What if the person only obtained a 2-year conditional permanent resident (CPR) card? The answer is a little less clear. I do not believe a CPR card can “magically” become a permanent 10-year LPR card by applying for a 237(a)(1)(H) waiver. But it should allow a late-filed I-751 hardship waiver. Moreover, there is at least an argument that 237(a)(1)(H) waives marriage fraud such that the marriage fraud bar (under INA 204(c)) would not apply – which means that the qualifying relative in the waiver could, if a US citizen, apply to readjust the waiver applicant’s status to a “fresh” green card. To read it any other way, I believe, would render the waiver meaningless as applied to CPR’s – which cannot be consistent with Congressional intent. (The waiver, formerly under INA 241(f), pre-existed the CPR scheme enacted by the Immigration Marriage Fraud Amendments of 1986.) It remains to be seen how this will play out in the immigration courts.

We have litigated marriage fraud cases all the way up to the federal courts of appeal. We looked forward to the day when we would be able to tell our clients that though a mistake may have been made, there is potentially a way out. For many of our clients, that day has come.