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WHAT IS FRAUD?
by Michael J. Gurfinkel, Esq.
The main law prohibiting visa fraud or misrepresentation
is Section 212(a)(6)(C), which states:
"Any alien who, by fraud or willfully misrepresenting
a material fact, seeks to procure (or has sought to procure or
has procured) a visa, other documentation, or admission into the
United States or other benefit provided under this Act is inadmissible."
By law, not all misrepresentations result in a person's
automatic ineligibility for a visa. In order for an alien to be
ineligible for a visa based on fraud or misrepresentation, the
following elements must exist:
1. There has been a misrepresentation made
by the applicant.
2. The representation was willfully made.
3. The fact misrepresented is material.
4. The alien uses fraud to receive a benefit under
the Immigration Act (i.e. visa, entry into the U.S., labor certification,
adjustment of status, etc.).
In determining whether or not a person made a material
misrepresentation, the following rules apply:
1. The misrepresentation must be a positive or affirmative
statement or act made by the alien. "Silence or the failure
to volunteer information does not in itself constitute a misrepresentation
".
2. The alien's misrepresentation must have been
before a U.S. government official (i.e. a U.S. Consular Officer
or an INS Officer). Misrepresentations made to officials of other
countries' governments may not constitute "misrepresentation"
for purposes of finding a person ineligible for a U.S. visa.
3. If a person made a misrepresentation, but timely
retracted that misrepresentation, then a "timely retraction
will serve to purge a misrepresentation and remove it from further
consideration as a ground for . . . ineligibility."
4. Only misrepresentations of material facts
constitute grounds for ineligibility of a visa. A misrepresentation
is "material" if either:
(a) The alien is ineligible for the visa based on the true facts;
or
(b) The alien's misrepresentation "tends to shut off a line
of inquiry which is relevant to the alien's eligibility and which
might well have resulted in a proper determination that he be
excluded." For example, if you are asked if you are married,
and you say "no", such a response would tend to "shut
off a line of inquiry" by the Consular Officer regarding
your marital status or history.
5. In order for a misrepresentation to be considered
"material", the truth of the matter must lead to a proper
finding of ineligibility for a visa. However, if the truth would
still support a finding that the alien is eligible for
a visa, then the misrepresented fact is not material. In
other words, depending on the facts and issues of a particular
case, if the truth would have still entitled you to a visa,
a misrepresentation may not be considered "material".
If, however, the true state of facts would demonstrate that the
alien was not eligible for the visa, then the fact would
certainly be material.
As I have stated in the past, people should always
be truthful with the INS and/or Embassy when applying for visas.
If people lie, chances are very high that the INS and/or Embassy
will find out. If you, or a relative or a friend, were denied
a visa because of misrepresentation, you should consult a reputable
and reliable attorney. Sometimes, a denial may not be the end
of the line. An experienced attorney could analyze your situation
regarding whether the misrepresentation could constitute a "material
misrepresentation" under existing immigration law, and advise
whether you, your friend, or relative can qualify for a waiver
or "forgiveness" for the misrepresentation. A waiver
is available if a person is the spouse, son, or daughter of a
U.S. citizen or green card holder ("qualifying relative")
and it is shown that the qualifying relative would suffer "extreme
hardship" if the waiver is not granted. If you made a misrepresentation,
and the waiver is approved, then you may still be able to get
your visa.
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