Waiver of Unlawful Presence and Fraud/Misrepresentation

QUESTION: I lived in the US for a period of time illegally.  I tried to get legal and applied for permanent residence but I ended up coming back to my country.  I tried another visa to enter the U.S. to attend a conference.  Unfortunately, I did not provide the correct dates that I was in the U.S.  My visa was denied under the INA sections 212(a)(6)(C)(i) and 212(a)(9)(B)(i)(II).  I was afraid of telling the truth.  I regret it so much.  I love the United States and have a lot of respect for the country. 

I have an American daughter.  When she turns 18 will she be able to request a visa for me? Or will I be barred for life to enter the U.S.?  Is there forgiveness?  Is there anything you could do to help?

Can I have a visa to Canada? Will Canada will also have the information about my inadmissibility to the United States?    

REPLY:  Your U.S. citizen daughter may file a visa petition for you when she turns 21, however, you will most likely be refused a visa at that time.  This is because you are inadmissible due to a previous period of unlawful presence [INA § 212(a)(9)(B)(i)(II)], for which there is a 10-year bar to admission.  You are also inadmissible due to fraud/misrepresentation [INA § 212(a)(6)(C)(i)], for which there is a lifetime bar.  Although there are waivers available for both grounds of inadmissibility, both waivers require a showing of “extreme hardship” to a U.S. citizen (or lawful permanent resident) spouse or parent – not daughter.  So, unless you have a spouse or parent that can demonstrate s/he would suffer “extreme hardship” if you are not permitted to immigrate to the U.S., you will most likely never be eligible for permanent residence in the U.S. 

You may be able to obtain a visitor visa and a nonimmigrant waiver, which will allow you to enter the U.S. on a temporary basis if granted.  Nonimmigrant waivers of fraud and unlawful presence can be obtained pursuant to INA § 212(d)(3).  The Board of Immigration Appeals has elaborated on these nonimmigrant waivers, setting forth a list of three (3) criteria that are to be balanced when the government is considering whether to approve the waiver application: 

(1)     The risks of harm in admitting the applicant;

(2)     The seriousness of the acts that caused the inadmissibility; and

(3)     The importance of the applicant’s reasons for seeking entry.

See Matter of Hranka, 16 I. & N. Dec. 491 (BIA 1978). 

Whether or not you have a strong case for a nonimmigrant waiver will depend upon these factors.  If you would like to submit additional information and receive a complete professional analysis regarding the strength of a potential nonimmigrant waiver application, please consider contacting my office to set up a consultation. 

Also, we are a firm that practices U.S. immigration law only.  If you are interested in Canadian immigration, I will be happy to provide you with the contact information of a colleague in Toronto who handles such matters.