The Board of Immigration Appeals recently clarified eligibility for a waiver of deportability under INA § 237(a)(1)(H). Matter of Gordon Ndok Tima, 26 I&N Dec. 839 (BIA 2016). That waiver is available to persons in proceedings who were inadmissible at the time of admission or adjustment due to fraud, but who were nevertheless granted LPR status. This waiver is commonly used to prevent deportation of children or sons/daughters of LPRs who were married at the time of being granted LPR status. But it could also be used to waive other types of fraud.

The requirements of 237(a)(1)(H) are that the person: (1) was granted LPR status; (2) was inadmissible under section 212(a)(6)(C)(i) at the time of being granted LPR status; (3) is the spouse, parent, son or daughter of a U.S. citizen or LPR; (4) was otherwise admissible when granted LPR status “except for those grounds of inadmissibility that were a direct result of that fraud or misrepresentation.”  The statute goes on to state that the “waiver of removal for fraud or misrepresentation granted under this subparagraph shall also operate to waive removal based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation.”

The case centered on whether 237(a)(1)(H) was available to waive all grounds of inadmissibility or removability resulting from fraud, or whether it was limited to fraud covered by 212(a)(6)(C)(i). In this case, the person had been granted LPR status based on marriage to a U.S. citizen. He was later convicted of making materially false statements regarding the bona fides of his marriage and his conditional LPR status was terminated. He was charged with being inadmissible under section 237(a)(2)(A)(1) for having been convicted of a crime involving moral turpitude. The BIA held that 237(a)(1)(H) could not be used to waive this ground of deportation, even though it is premised on a conviction for the underlying fraud. The waiver only covers grounds of inadmissibility due to fraud that are covered in 237(a)(1), which deals with people who were inadmissible at the time of entry or of adjustment of status or who violate their status. Therefore, people who are deportable under 237(a)(2) would not be able to request this waiver.