October 5, 2021

Fraud & Misrepresentation Waivers

There are various factors that may make a person ‘inadmissible’ to the United States.  Committing Fraud or Misrepresentation are grounds of inadmissibility.  Typically we see this in several areas.

One scenario is attempting to enter the United States with someone else’s legal permanent resident card or visa.  Another scenario may be claiming to be a citizen of Mexico at the border so you are returned to Mexico rather than your home country.  There are various scenarios where this issue may come up.

A person is inadmissible when, “by fraud, or willfully misrepresenting a material fact, seeks to procure… a visa, other documentation, or admission into the United States or other benefit… is inadmissible.” INA 212(a)(6)(C)(i).

We have also seen fraud or misrepresentation appear when a Lawful Permanent resident committed fraud or misrepresentation at the time of entry.  This can make the legal permanent resident deportable under INA Section 237(a)(1).  A typical scenario here is when a lawful permanent resident obtains status as ‘unmarried’ when they are really married.  This typically happens during long visa wait times & the wait time may be longer if the adult child is married.   There may be a waiver for this under INA 237(a)(1)(h).

Inadmissibility can be found in two ways under INA 212§(a)(6)(C)(i): 

(1) by committing a willful, material misrepresentation, OR 

(2) by committing a fraud.

Fraud

An applicant must knowingly misrepresent a material fact, with the intent to deceive the official in order for there to be a finding of inadmissibility.

1.  The misrepresentation was intended to deceive the officer; and

2.  The officer believed the misrepresentation and in relying on the misrepresentation granted some sort of immigration benefit.

Misrepresentation

For misrepresentation the person must have “willfully misrepresented a material fact.” The officer must find that:

1.  The applicant procured, or sought to procure a benefit under U.S. immigration law;

2.  The person misrepresented a fact;

3.  The fact was material to the application; if the misrepresentation was not material to obtaining the immigration benefit sought then it would not trigger this ground of inadmissibility; 

4.  The misrepresentation was made willfully; &

5.  The misrepresentation was made to a USCIS officer, consular officer, or other U.S. government official.

A finding of deceit is not necessary.

Waivers of Misrepresentation & Fraud

In order to defeat a charge of misrepresentation or fraud, you may argue that the representation was not untruthful, not willful, or not material.

If you are unable to defeat the allegations, you may be eligible for a waiver.

Keep in mind for a waiver of this type regarding a family petition, you must have a United States Citizen or legal permanent resident Spouse or Parent to be eligible.

Please note that making a false claim to citizenship can be waived in limited circumstances.  In many circumstances, knowingly making a false claim to citizenship, will make the person become ineligible for any type of immigration benefit.  This is a complex area.

Background Checks

We regularly recommended that our clients that have had previous stops at the border do a background check so that we can see the information that Immigration has about our client.  We regularly do checks with the FBI, USCIS (immigration), EOIR (Immigration Court), and most importantly OBIM with Customs and Border Patrol (we send these in with a fingerprint card in case other names were used at the border).  While at times, it’s a lengthy wait to get results back, it’s well worth it.

At Bailey Immigration, we are experienced immigration attorneys and are here to help you.  Please feel free to call us at 866-521-6422 for a consultation.