What is a Misrepresentation? A misrepresentation is a statement that “tends to shut off a line of inquiry that is relevant to the alien’s admissibility and that would predictably have disclosed other facts relevant to his or her eligibility for a visa, other documentation, or admission to the United States.” Inadmissibility for Fraud or Willful Misrepresentation 212(a)(6)(C) Misrepresentation (i) In general Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible. Matter of D-R-, 25 I&N Dec. 445 (BIA 2011) [PDF version] The Board took the position that the “tends to shut off a line of inquiry” test from Matter of Bosuego leads to the same results as the “natural tendency” test from Kungys. Accordingly, the Board adopted the “natural tendency” test from Kungys for determining whether a misrepresentation is “material” under section 212(a)(6)(C)(i). The Board stated that it will consider whether a misrepresentation “tends to shut off a line of inquiry that is relevant to the alien’s admissibility and that would predictably have disclosed other facts relevant to his or her eligibility for a visa, other documentation, or admission to the United States.” The Board reaffirmed its conclusion from Matter of Bosuego, 17 I&N Dec. at 131, regarding the “burden-shifting test.” The Board stated that once the DHS meets its burden of proof the burden shifts to the alien “to establish that no proper determination of inadmissibility could have been made.” The Board cited to Maslenjak, 137 S.Ct. at 1930 in noting that an alien should have the opportunity to rebut the Government’s case. After having defined the term “material” and clarified its rules on determining materiality in the section 212(a)(6)(C)(i) context, the Board moved to apply the new rule to the facts of the Matter of D-R-. In this case the Board referenced again the testimony of a Special Assistant with the Refugee Affairs Division of USCIS during hearings before the Immigration Judge. To summarize, this officer, Todd Gardner, testified that the respondent’s misrepresentation: 1. Would have prevented an appropriate line of inquiry regarding whether he was a persecutor; 2. Would have prevented further questioning; and 3. Was material because refugee officers in Bosnia were trained to assess human rights issues in Bosnia with applicants. The Board concluded that the Immigration Judge was correct in finding that the respondent’s misrepresentations had a “natural tendency” to influence the decision of local asylum officers. This is because, as the Board determined, the respondent’s misrepresentations shut off a line of inquiry into issues relevant to his eligibility for asylum. The Board also noted that the respondent was given “ample opportunity” to cross examine the DHS’s witnesses and provide his own testimony, and he still failed to establish that he would have been admissible had the facts of his Bosnian War service been exposed. Accordingly, the Board determined that the respondent was inadmissible under section 212(a)(6)(C)(i) of the INA and removable under section 237(a)(1)(A). More info at https://myattorneyusa.com/matter-of-d-r-27-iandn-dec-105-bia-2017-determining-whether-misrepresentation-is-material-for Matter of Bosuego Matter of Bosuego, 17 I&N Dec. 125 (BIA 1979, 1980) In Matter of Bosuego, the Board concluded that the materiality requirement in former section 212(a)(19) was satisfied if one of the following was true: 1. “The alien is excludable on the true facts”; or 2. “The misrepresentation tends to shut off a line of inquiry which is relevant to the alien’s eligibility and which might well have resulted in a proper determination that he be excluded.” Id. at 127. OTHER CASES Matter of O-M-O-, 28 I&N Dec. 191, 196 (BIA 2021) Cooper v. Harris, 137 S. Ct. 1455, 1465 (2017) Matter of MENSAH, 28 I&N Dec. 288 (BIA 2021) Link to case Matter of Y-L-, 24 I&N Dec. 151, 159 (BIA 2007) [PDF version] Monter v. Gonzales, 430 F.3d 546, 556-58 (2d Cir. 2005) [PDF version]) See also Mwongera v. INS, 187 F.3d 323, 330 (3d Cir. 1999) [PDF version])

DENIAL OF VISAS TO CERTAIN REPRESENTATIVES TO UNITED NATIONS TITLE 8—ALIENS AND NATIONALITY § 1103 – DENIAL OF VISAS TO CERTAIN REPRESENTATIVES TO UNITED NATIONS Pub. L. 101–246, title IV, §407, Feb. 16, 1990, 104 Stat. 67, as amended by Pub. L. 113–100, §1, Apr. 18, 2014, 128 Stat. 1145, provided that: (a) IN GENERAL.—The President shall use his authority, including the authorities contained in section 6 of the United Nations Headquarters Agreement Act (Public Law 80–357) [Aug. 4, 1947, ch. 482, set out as a note under 22 U.S.C. 287], to deny any individual’s admission to the United States as a representative to the United Nations if the President determines that such individual— (1) has been found to have been engaged in espionage activities or a terrorist activity (as defined in section 212(a)(3)(B)(iii) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(iii))) directed against the United States or its allies; and (2) may pose a threat to United States national security interests. (b) WAIVER.—The President may waive the provisions of subsection (a) if the President determines, and so notifies the Congress, that such a waiver is in the national security interests of the United States.’’

(c) Alien crewmen, aliens continuing or accepting unauthorized employment, and aliens admitted in transit without visa Other than an alien having an approved petition for classification as a VAWA self-petitioner, subsection (a) shall not be applicable to (1) an alien crewman; (2) subject to subsection (k), an alien (other than an immediate relative as defined in section 1151(b) of this title or a special immigrant described in section 1101(a)(27)(H), (I), (J), or (K) of this title) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States; (3) any alien admitted in transit without visa under section 1182(d)(4)(C) of this title; (4) an alien (other than an immediate relative as defined in section 1151(b) of this title) who was admitted as a nonimmigrant visitor without a visa under section 1182(l) of this title or section 1187 of this title; (5) an alien who was admitted as a nonimmigrant described in section 1101(a)(15)(S) of this title, (6) an alien who is deportable under section 1227(a)(4)(B) of this title; (7) any alien who seeks adjustment of status to that of an immigrant under section 1153(b) of this title and is not in a lawful nonimmigrant status; or (8) any alien who was employed while the alien was an unauthorized alien, as defined in section 1324a(h)(3) of this title, or who has otherwise violated the terms of a nonimmigrant visa. – INA 245(c) / Title 8-ALIENS AND NATIONALITY CHAPTER 12-IMMIGRATION AND NATIONALITY SUBCHAPTER II (Link to Full) These bars apply not only to unauthorized employment since an applicant’s most recent entry but also to unauthorized employment during any previous periods of stay in the United States. Employment-based applicants also may be eligible for exemption from this bar under INA 245(k). An applicant employed while his or her adjustment application is pending final adjudication must maintain USCIS employment authorization and comply with the terms and conditions of that authorization. The filing of an adjustment application itself does not authorize employment. OTHER LINKS https://web.archive.org/web/20160607145933/https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter6.html USCIS POLICY MANUAL Volume 7 Chapter 6 – Unauthorized Employment https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1255&num=0&edition=prelim My Attorney USA

The I-601A Waiver is for individuals who are inadmissible pursuant to INA §212(a)(9)(B) for unlawful presence. Typically this waiver is for the spouse or child of a US citizen or legal permanent resident (LPR), who entered the US without inspection (usually by crossing the US-Mexico or US-Canada border). Since someone who enters the US without inspection is ineligible for adjustment of status they have to leave the US to attend a consular interview to obtain legal permanent residency. If the person has been unlawfully present in the US for more than six months then they can’t leave the US to attend the visa interview without tripping the three or ten-year unlawful presence bar. The I-601A Waiver, if approved, waives the wait period that the applicant would normally be subject under the unlawful presence bar, allowing them to obtain their visa at the consular interview and reenter the US as a legal permanent resident without having to wait three/ten years outside the country. An I-601A waiver requires that the applicant be the beneficiary of an approved immigrant visa petition that is immediately available to them (petitions for immediate relatives, family-sponsored or employment-based immigrants as well as Diversity Visa selectees), that they have paid the visa fees, they are otherwise admissible to the United States, they deserve favorable discretion, and they can establish that their qualifying relative will suffer extreme hardship if their application is denied. A qualifying relative for an I-601A waiver can be a US citizen/LPR spouse or US citizen/LPR parent (children are not qualifying relatives). One cannot apply for an I-601A waiver without a qualifying relative. The eligibility details are available below and at the USCIS.gov website. NOTE: The Form I-601 Waiver (without an A) still exists. The original I-601 Waiver does the same thing as an I-601A but it is filed by someone who has already tripped the unlawful presence bar and is outside of the US. Individuals who do not wish to seek or do not qualify for a provisional unlawful presence waiver can still file Form I-601, Application for Waiver of Grounds of Inadmissibility, after a DOS consular officer determines that they are inadmissible to the United States. ELIGIBILITY An alien who is inadmissible for unlawful presence in the U.S. under Section 212(a)(9)(B) of the Immigration and Nationality Act (INA), is eligible for a waiver of inadmissibility pursuant to INA §212(a)(9)(B)(v). Eligibility requirements enumerated under 8 CFR 212.7(e) are as follows: (i) Is present in the United States at the time of filing the application for a provisional unlawful presence waiver; (ii) Provides biometrics to USCIS at a location in the United States designated by USCIS; (iii) Upon departure, would be inadmissible only under section 212(a)(9)(B)(i) of the Act at the time of the immigrant visa interview; (iv) Has a case pending with the Department of State, based on: (A) An approved immigrant visa petition, for which the Department of State immigrant visa processing fee has been paid; or (B)Selection by the Department of State to participate in the Diversity Visa Program under section 203(c) of the Act for the fiscal year for which the alien registered; (v) Will depart from the United States to obtain the immigrant visa; and (vi) Meets the requirements for a waiver provided in section 212(a)(9)(B)(v) of the Act. BURDEN OF PROOF PREPONDERANCE OF THE EVIDENCE STANDARD The Applicant must establish eligibility for a waiver by a preponderance of the evidence. See Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010) (identifying preponderance of the evidence as the standard for immigration benefits generally, in that case naturalization). MORE LIKELY THAN NOT The preponderance of evidence standard requires that the evidence demonstrates that denial of the Applicant’s admission will “more likely than not” result in extreme hardship to the Applicant’s qualifying relative(s). Id. at 376. QUALIFYING RELATIVE The requirements for a waiver provided at section 212(a)(9)(B)(v) of the Act are that he establish to the satisfaction of the Attorney General that the refusal of admission would result in extreme hardship to a qualifying relative, which is defined as a citizen or resident parent or spouse. Hardship to and Applicant’s USC children must be considered insofar as it results in hardship to any of the qualifying relatives. See Matter of Recinas, 23 I&N Dec. 467 (BIA 2002); Matter of Andazola, 23 I&N Dec. 319 (BIA 2002); *Matter of Monreal,*23 I&N Dec. 56 (BIA 2001). Additionally, hardship to the Applicant’s three USC Children, other family members, members of the community, and the Applicant himself, may serve as favorable factors to be considered in the determination of whether the Secretary should exercise favorable discretion by approving the waiver. See Matter of Mendez, 21 I&N Dec. 296 (BIA 1996). EXTREME HARDSHIP The definition of “extreme hardship,” according to immigration law, is “not . . . fixed and inflexible, and the elements to establish extreme hardship are dependent upon the facts and circumstances of each case.” Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999). Further, in assessing extreme hardship, one “must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.” Matter of O-J-O-, 21 I&N Dec. 381 (BIA 1996). Extreme hardship in the context of an I-601A Provisional Waiver has a significantly lower burden of proof than the exceptional and extremely unusual hardship requirement of cancellation of removal referenced throughout this brief. Extreme hardship in this context must go “beyond that typically associated with deportation.” See 8 CFR 1240.58(b); See also USCIS Policy Manual Volume 9, Part B, Chapter 2. The federal courts and the BIA have frequently relied on cases involving the former suspension of deportation statute when interpreting extreme hardship waiver statutes, as these statutes employed the same language. See Hassan v. INS, 927 F.2d 465, 467 (9th Cir. 1991). See Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999), aff’d, Cervantes-Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001). The USCIS

UNLAWFUL PRESENCE Among the most common barriers to “legal” immigration status for those in the US are the “three- and ten-year bars,” provisions of the law which prohibit applicants from returning to the United States if they depart after having previously been in the country illegally. Many people who qualify for green cards based on their relationships to U.S. citizen or lawful permanent resident relatives are caught in a Catch-22—under current law they must leave the United States to apply for their green card abroad, but as soon as they depart, they are immediately barred from re-entering the country for a period of time. In other words, because of the punitive effect of our immigration laws, immigrants who have a chance to legalize their status may not be able to do so. Instead, they must choose between leaving the United States and taking the risk they might not be able to return, or remaining in the country without legal status. The Secretary of Homeland Security may waive the three- and ten-year bars to admission in certain circumstances. Recent regulatory changes have broadened the number of people eligible for a process that allows them to apply for advance approval of the waiver in the United States, rather than enduring a lengthy separation from their loved ones while they apply abroad. Effective August 29, 2016, the U.S. Department of Homeland Security (DHS) published a final rule that expands eligibility for the “provisional unlawful presence waiver.” THREE AND TEN-YEAR BAR The three- and ten-year bars were created as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996. Incorporated into section 212(a)(9)(B) of the Immigration and Nationality Act (INA), the statute imposes re-entry bars on immigrants who accrue “unlawful presence” in the United States, leave the country, and want to re-enter lawfully. “Unlawful presence” is a term of art that is not defined in the statute or regulations. However, the U.S. Citizen and Immigration Services (USCIS) Adjudicator’s Field Manual includes guidance on determining when a noncitizen accrues unlawful presence. Generally, an immigrant who enters the United States without inspection, or who overstays a period of authorized admission, will be deemed to have accrued unlawful presence. Individuals who accrue more than 180 days, but less than one year, of unlawful presence are barred from being re-admitted or re-entering the United States for three years; those who accrue more than one year of unlawful presence are barred for ten years. Statutory Grounds for Unlawful Presence INA § 212(a)(9)(B)(i) & INA §212(a)(9)(B)(ii) (8 USC 1182) Any foreign national who was unlawfully present in the US for more than 180 days is inadmissible for three years and if unlawfully present for one year, is inadmissible for ten years. Any alien (other than an alien lawfully admitted for permanent residence) who was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States and again seeks admission within 3 years of the date of such alien’s departure or removal, or has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States is inadmissible. No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States. No period of time in which an alien has a bona fide application for asylum pending shall be taken into account in determining the period of unlawful presence in the United States unless the alien during such period was employed without authorization in the United States. No period of time in which the alien is a beneficiary of family unity protection shall be taken into account in determining the period of unlawful presence in the United States. This section shall not apply to VAWA petitioners. This section shall not apply to an alien who demonstrates that the severe form of trafficking was at least one central reason for the alien’s unlawful presence in the United States. 8 USC § 1182 (B) Aliens unlawfully present (i) In general Any alien (other than an alien lawfully admitted for permanent residence) who- (I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 1254a(e) 3 of this title) prior to the commencement of proceedings under section 1225(b)(1) of this title or section 1229a of this title, and again seeks admission within 3 years of the date of such alien’s departure or removal, or (II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States,is inadmissible. (ii) Construction of unlawful presenceFor purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled. **(iii) Exceptions (I) Minors** No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States under clause (i). (II) Asylees No period of time in which an alien has a bona fide application for asylum pending under section 1158 of this title shall be taken into account in determining the period of unlawful presence in the United States under clause (i) unless the alien during such period was employed without authorization in the United States. (III) Family unity No period of time in which the alien is a beneficiary of family unity protection pursuant to section 301 of the Immigration Act of 1990 shall be taken into account in determining the period of

An INA 212(d)(3) waiver is required when a noncitizen is seeking to obtain a nonimmigrant visa and they are inadmissible under INA 212(a)(3). Note: In the case of T nonimmigrant status, there is an INA 212(d)(13) waiver available, which was specifically created for T nonimmigrant applicants. More info on 212(d)(13) waivers for T nonimmigrants in the USCIS Policy Manual here. Factors Considered For 212(d)(3) Waiver The INA 212(d)(3) waiver analysis is a purely discretionary determination, and the analysis involves balancing social and humanitarian considerations against adverse factors. In addition to considering a broad range of discretionary factors, USCIS will also consider the following factors, as specifically outlined by the Board of Immigration Appeals, in determining whether to approve or deny a section INA 212(d)(3) waiver: In addition to these factors, officers should take into account as a positive factor that the applicant has suffered a severe form of human trafficking in persons and has complied with any reasonable law enforcement requests for assistance.

Fraud & Misrepresentation Ground of Inadmissibility Inadmissibility for fraud or misrepresentation under section 212(a)(6)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2018). Willful Misrepresentation Matter of O-M-O-, 28 I&N Dec. 191, 196 (BIA 2021) Cooper v. Harris, 137 S. Ct. 1455, 1465 (2017) Matter of MENSAH, 28 I&N Dec. 288 (BIA 2021) Link to case Materiality of a Statement See Matter of Munroe, 26 I&N Dec. 428, 430 (BIA 2014). Matter of MENSAH, 28 I&N Dec. 288 (BIA 2021) Link to case Authority to Inquire into Bona Fides of Marriage at Adjustment of Status See MARRIAGE FRAUD for more on this. Matter of Bosuego Matter of Bosuego, 17 I&N Dec. 125 (BIA 1979, 1980) In Matter of Bosuego, the Board concluded that the materiality requirement in former section 212(a)(19) was satisfied if one of the following was true: 1. “The alien is excludable on the true facts”; or 2. “The misrepresentation tends to shut off a line of inquiry which is relevant to the alien’s eligibility and which might well have resulted in a proper determination that he be excluded.” Id. at 127. Matter of Y-L- Matter of Y-L-, 24 I&N Dec. 151, 159 (BIA 2007) [PDF version] Matter of D-R- Matter of D-R-, 25 I&N Dec. 445 (BIA 2011) (“Matter of D-R- 2011”) [PDF version] Matter of KAGUMBAS, 28 I&N Dec. 400 (BIA 2021) An Immigration Judge has the authority to inquire into the bona fides of a marriage when considering an application for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a) (2018). FULL DECISION FRAUD/MISREPRESENTATION WAIVER