A powerful tool with a strange name, this waiver is a defense for permanent residents who are facing deportation because they received their green card through fraud or misrepresentation. This waiver can even allow a permanent resident to keep her green card if she got it through a fake marriage, if she has a new bona fide (real) spouse or other qualifying relative.
Unlike the more common waiver for fraud (the 212(i) hardship waiver), this waiver does not require hardship to any relative, and it does not require filing a form or paying any government fee. Instead, the applicant must demonstrate to the judge that:
- She has a spouse, parent, or child (including adult children and married children) who is a US citizen or permanent resident,
- She was eligible for her green card at the time she received it, other than the fraud or misrepresentation;
- She deserves to keep her green card, in the judge’s discretion.
Alternatively, this waiver is available VAWA self-petitioners (survivors of violence or emotional abuse by US citizen spouses, parents, or children). VAWA self-petitioners do not need to prove that they have any US citizen or permanent resident relatives.
A judge will decide the case after a trial (“individual hearing”). At the trial, the judge will review the documents the applicant and the ICE prosecutor have submitted. The attorney helps the applicant and witnesses speak to the judge about the case, and offers legal argument for why the applicant qualifies and deserves to win. A prosecuting attorney representing Immigration and Customs Enforcement (ICE) usually opposes the case and cross-examines each witness, trying to convince the judge that she should deny the case and deport the applicant. If the judge denies the case, she usually orders the applicant deported. If she approves the case, the applicant keeps her green card, and may become eligible for citizenship.
