Chapter 3 - Effect of Granting a Waiver
A. Validity of an Approved Waiver
If the waiver[1] is granted, then, except for K-1 and K-2 nonimmigrants and conditional permanent residents,[2] the grant permanently waives fraud or willful misrepresentation included in the application for purposes of any future immigration benefits application, whether immigrant or nonimmigrant. The waiver remains valid even if the person later abandons or otherwise loses lawful permanent resident (LPR) status.[3]
For conditional permanent residents,[4] the waiver only becomes valid indefinitely if and when the conditions are removed from his or her permanent resident status. Conversely, termination of the conditional permanent resident status also terminates the validity of the waiver.[5]
A waiver applies only to the specific grounds of inadmissibility and related crimes, events or incidents specified in the waiver application.[6] If, in the future, the applicant is found inadmissible for a separate incident of fraud or willful misrepresentation not already included in an approved waiver application, he or she will be required to file another waiver application. USCIS may reconsider an approval of a waiver at any time if it is determined that the decision has been made in error.[7]
B. Conditional Grant of a Waiver to K-1 or K-2 Nonimmigrant Visa Applicants
If the applicant seeks a waiver to obtain a fiancé(e) visa (K-1 or K-2), the waiver’s approval is conditioned upon the K-1 nonimmigrant marrying the U.S. citizen who filed the fiancé(e) petition.[8] The waiver becomes permanent once the K-1 marries the petitioner, as discussed in the section on validity of an approved waiver.[9]
If the K-1 nonimmigrant does not marry the petitioner, the K-1 and K-2 (if applicable) will remain inadmissible for purposes of any application for a benefit on any basis other than the proposed marriage between the K-1 and the K nonimmigrant visa petitioner.[10]
C. Inadmissibility Based on Documentary Requirements[11]
If an applicant procured an immigration benefit by fraud or willful misrepresentation, the applicant may also be inadmissible for lack of documentary requirements at the time of entry. When an applicant is granted a waiver for fraud or willful misrepresentation, inadmissibility based on lack of documentary requirements at the time of entry is also implicitly waived.
Example
An applicant misrepresents a material fact during the overseas nonimmigrant visa application process. The Department of State, however, grants the applicant a visa. Later, the applicant applies for adjustment of status. During the adjustment interview, an officer discovers the misrepresentation and finds applicant inadmissible for both willful misrepresentation[12] and failure to comply with documentary requirements.[13] The applicant then applies for a waiver of inadmissibility for willful misrepresentation.[14] Approval of the waiver has the effect of waiving inadmissibility for willful misrepresentation and for the lack of a valid visa at the time of entry.
Footnotes
[^ 1] See INA 212(i).
[^ 2] For K-1 and K-2 nonimmigrants granted a waiver, see Section B, Conditional Grant of a Waiver to K-1 or K-2 Nonimmigrant Visa Applicants [9 USCIS-PM F.3(B)].
[^ 3] See 8 CFR 212.7(a)(4)(ii).
[^ 4] Noncitizens lawfully admitted for permanent residence on a conditional basis. See INA 216.
[^ 5] See 8 CFR 212.7(a)(4)(iv).
[^ 6] See 8 CFR 212.7(a)(4)(i).
[^ 7] See 8 CFR 212.7(a)(4)(v).
[^ 8] See 8 CFR 212.7(a)(4)(iii).
[^ 9] See Section A, Validity of an Approved Waiver [9 USCIS-PM F.3(A)].
[^ 10] See 8 CFR 212.7(a)(4)(iii).
[^ 11] See INA 212(a)(7).
[^ 12] See INA 212(a)(6)(C)(i).
[^ 13] See INA 212(a)(7)(B)(i) (for example, for not possessing a valid nonimmigrant visa).
[^ 14] See INA 212(i).