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DID YOU REALLY MAKE A MISREPRESENTATION?
by Michael J. Gurfinkel, Esq.
Many people find themselves facing a lifetime
ban from entering the US (or getting a green card) because they
were accused by the INS or Embassy of visa fraud. While in some
cases, a person truly did commit fraud, there may be some special
cases or circumstances where the person's actions or misrepresentations
do not amount to the legal definition of fraud.
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 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.).
4. The fact misrepresented is material. If the misrepresentation
is not “material,”
the person may still be eligible for a visa.
In determining whether or not a person made a material
misrepresentation, the following rules apply:
- 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
".
- The aliens 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.
- 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."
-
Only misrepresentations of material facts
constitute grounds for ineligibility of a visa.
- In order for a misrepresentation to be considered
"material", the truth of the matter (or alien's circumstances)
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.
As I have stated in the past, people should always
be honest and 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 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 whether the
misrepresentation would 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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