(b) (U) The fact that an individual's
b. Misrepresentations made in connection
& N. Dec. 637 (B.I.A. 9 FAM 302.9-9(B)(2) (U) Date
unsure whether an activity is inconsistent with nonimmigrant status or whether
A retraction can only be timely if the alien comes to the same proceedings that he or she falsely claimed to be a U.S. citizen. made a misrepresentation. a. (U) A final order under INA
[^ 45]SeeLlanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. If U.S. citizenship is irrelevant to achieving the purpose at issue, the noncitizens false claim to U.S. citizenship does not make him or her inadmissible unlessthe evidence provides a basis for finding that the noncitizen made the false claim to obtain a benefit under federal or state law. The FAM also supports the premise that the timely retraction of a fraudulent or willful misrepresentation applies to false claims to U.S. citizenship. "public" can encompass "alternative" or "charter"
facts materiality test. [^ 15]SeeINA 212(a)(6)(C)(i). adjustment of status or visa application interview. SeeINA 212(a)(6)(C). & N. Dec. 823 (BIA 1949); see Matter of Namio, 14 I. name, a nickname, or a legal and well-documented name change); and. United States do not fall within the purview of INA 212(a)(6)(C)(i) but may be
of the misrepresentation made. 9 FAM 302.9-3(D)(2) (U)
[^ 42]If the witness withdraws the false testimony of his own volition and without delay, the false statement and its withdrawal may be found to constitute one inseparable incident out of which an intention to deceive cannot rightly be drawn. SeeLlanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. (U) The provisions of INA 214(m)
Where the misrepresentation, however, conceals not
U.S.C. It is well-settled that someone who is allowed to come into the United States as a U.S. citizen or national has not been admitted. A question about past false claims to citizenship DOES appear on the application for naturalization (Form N-400). 212(a)(6)(E) is that the smuggler (e.g., an individual who is
212(a)(6)(C)(ii). to accept the employment, or. is ineligible. citizenship. retraction made before primary inspection by a DHS officer at a port of entry
He also failed to show that citizenship did not affect removal proceedings. Waivers for Nonimmigrants. See Sandoval v. Holder, 641 F.3d 982, 986-89 (8th Cir. from public to private secondary school only if they reimburse the school as
An individual making a visa application who either knowingly makes false oral
The issuance of a final order under this section in the
If so, even if they later changed their minds, the marriage is not sham. the 12-month limit. Any time a person is hired for employment within the U.S., an employer is supposed to ask the employee to complete an I-9 Employment Eligibility Verification Form and present evidence showing a legal right to work within the United States. Also, if a noncitizenfalsely claims citizenship by voting, that person would also be inadmissible underINA 212(a)(10)(D), which declares a noncitizeninadmissible who votes in violation of any federal, state, or local law. (U) Materiality Defined: The
misrepresentation conceals an ineligibility under grounds other than those
constitute an INA 212(a)(6)(C)(ii) ineligibility,
1324a); INA
This technical update to Volume 8 modifies several footnotes to note the divergence from the Board of Immigration Appeals (BIA)s decision in Matter of Richmond,26 I&N Dec. 779, 787 (BIA 2016) in the Eleventh Circuit. It may also constitute a (i.e., filed an immigrant petition on their own behalf), such as an individual
A lock ( A locked padlock ) or https:// means you've safely connected to the .gov website. 1182(d)(3)); INA 212(d)(11) (8
that the misrepresentation must reasonably have had the capacity of foreclosing
(U) Ineligibility based on Illegal Entry,
b. document relating to an application, admission, grant of deferred action, or
For example, an applicant for an immigrant
the date of the smuggling act and the relationship, if known, to the
recommend that DHS grant a waiver under INA 212(d)(3)(A) for an applicant
9 FAM 302.9-7(B)(2) (U) Visa
[^ 10]InAteka v. Ashcroft, 384 F.3d 954 (8th Cir. requirement that the false statement was material under the INA 212(a)(6)(C)(i)
SeeCrocock v. Holder, 670 F.3d 400, 403 (2nd Cir. they involve the use of a false identity in a passport. an individual who without reasonable cause failed to attend, or remain in
The doctrine is of long standing and ameliorates what would otherwise be an unduly harsh result for some individuals, who, despite a momentary lapse, are generally honest and are seeking to correct their mistake. unauthorized employment, such as those permissible under 9 FAM 402.2-5(E), and you should clarify an applicant's
defenses if you are accused of falsely claiming to be a U.S. citizen. a. 212(a)(6)(C)(i)'s materiality test if the relief from the ineligibility is by
[^ 7]SeeU.S. Constitution, amend. of Applicability. c. (U) Because a waiver is
their inadmissibility or deportability is ineligible under INA 212(a)(6)(B) for
further investigation. You must not issue an F-1 visa if the proposed length of
hearing, there is a mechanical breakdown of an automobile leaving the individual
answers "no" to this question should generally be considered to have
knowingly to encourage, induce, or assist an individual to enter
stranded and unable to arrive on time to the hearing. required. See 9 FAM 304.3-2 and 9 FAM 302.9-4(C) below. arriving in the United States as stowaways. 9 FAM 302.9-4(B)(5) (U)
Under the doctrine of timely retraction or recantation, an applicant can use as a defense to inadmissibility under INA 212(a)(6)(C)(i) that s/he timely retracted or recanted the statement. (U) A major difference between INA
SeeMatter of F- (PDF), 9 I&N Dec. 54 (BIA 1960). In either case (whether as a beneficiary or
citizenship. (U) An individual who
sham marriage in an IR-1 case, cannot be deemed material if the petition
b. INA and would then be ineligible under the independent ground of INA
This standard would apply,
See Matter of RR, 3 I. Concerning Previous Visa Applications: (i) (U) An IV applicants
The form contains boxes for the employee to check showing eligibility to work. proceedings claiming ineffective assistance, and the motion is supported by a
to assist the applicants spouse or child; and. 2020) (en banc), the Eleventh Circuit held that a false claim to U.S. citizenship does not have to be material in order to result in inadmissibility. 212(a)(7)(B); and thus, also ineligible under INA
2011). is material if it tends to shut off a line of inquiry that is relevant to the individuals
misrepresentation conceals an ineligibility under grounds other than those
[8]The noncitizen, however, may be inadmissible forfraud or willful misrepresentationif all other elements for that ground are met. visa application, admission to the United States, or in a filing for another
review all 6C1 findings of ineligibility under the 90-day rule. The officer should examine all facts and circumstances when evaluating inadmissibility for falsely claiming U.S. citizenship. & N. Dec. 863 (BIA 1999)). misrepresentation material. the failure to volunteer information does not in itself constitute a false
[14]If an applicantclaimed U.S. citizenship before September 30, 1996, the applicant may be inadmissible for fraud orwillfulmisrepresentation[15]but not for falsely claiming U.S. (U) INA 212(a)(6)(D) is not
Citizenship, Volume 1 - General Policies and Procedures, Volume 9 - Waivers and Other Forms of Relief, Volume 11 - Travel and Identity Documents, Volume 12 - Citizenship and Naturalization, Volume 3 - Humanitarian Protection and Parole. ineligible under INA 212(a)(6)(E) provided they meet the criteria specified in 9 FAM 305.4-3(H). rendered by an administrative law judge or by a court, for immigration related
Disclaimer | Fraud Warning | Website by Horowitz Agency. Federal or State law, while 212(a)(6)(C)(i) is limited to fraud or
Reimbursement: (U) Lack of Evidence of Financial
SeeMatter of Villanueva (PDF), 19 I&N Dec. 101, 103 (BIA 1984). Looking for U.S. government information and services? b. Additionally, when a noncitizen has been admitted on a nonimmigrant status
excludable any individual who is the subject of a final order under INA 274C,
If the benefit requires U.S. citizenship as part of eligibility, then the noncitizens false claim is material. 124 0 obj
<>
endobj
1961 and Matter of Kai Hing Hui, 15 I. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. such a change or adjustment of status. However, if an individual used the identity of or otherwise
302.9-9(B)(8) below and do not exceed the one-year time limitation. support of an application, or a false statement made to you, each of which
That means they can be material for purposes of
A USCIS officer would then decide the case as if the fraud or misrepresentation had never happened. to an individual who makes false claims to U.S. citizenship to obtain: (2) (U) Entry into the United
If the activities happened within 90 days after the visa
You should advise the applicant
to deceive or that the officer either believes or acted upon the false
The court reasoned that the alien did not have the opportunity to retract until they were in front of another tribunal. misrepresentation. a visa, the misrepresented fact is not material. (U) You may, in your discretion,
This technical update replaces all instances of the term foreign national with alien throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [any person not a citizen or national of the United States]. & N. Dec. 436, at 447.) district. principal beneficiary of a petition, even when named in the petition, would not
thus qualified for only third preference consideration, and the third preference
"elementary" means grades kindergarten through eight. Material Fact. submitted in person by the applicant, the applicant must be called in for a
which might well have resulted in a proper determination that he or she be inadmissible." (2) (U) If the immigration
the true facts. is ineligible under INA 212(a)(6)(B) provided they meet the criteria specified
"purpose" under U.S. law. (U) The conduct which is
Criteria for Finding. Reimbursement: You must refuse an applicant who cannot present evidence
specified in 9 FAM 305.4-3(B). per 9 FAM 302.9-5(B)(4) below. a. States, no automatic presumption of willful misrepresentation arises. the ground of ineligibility); (b) (U) The fact in question is
A person may be placed into removal proceedings even if the false claim was made unintentionally or to certain private parties administering a government benefit. (b) (U) No previous money
A .gov website belongs to an official government organization in the United States. Thus, an individual who makes a false
#ImmigrationLaw #FBA. 9 FAM 302.9-8(D)(2) (U)
whether the school meets the definition of "public" rests with the
waiting period for third preference applicants in the state of the applicant's
9 FAM 302.9-9(D)(1) (U)
waivers, employment authorization, advance parole, voluntary departure under
1949) (if the witness withdraws the false testimony of his own volition and without delay, and during the same hearing or examination under oath, the false statement and its withdrawal may be found to constitute one inseparable incident out of which an intention to deceive cannot rightly be drawn). or request submitted to DHS that is not listed above as other
interview. See Matter of Soriano-Salas, 2007 WL 2074526 (BIA 2007). concealed by the individual's silence. (NIV to IV) would be required, without the benefit of such a change or
Further, a retraction or recantation of a false claim to U.S. citizenship is only timely if the noncitizen makes it in the same proceeding in which he or she made the false claim. Civil Penalty - INA 212(a)(6)(F). Board of Immigration Appeals have found that the following were not
the interpretation or application of law or regulation, such as what
colleges that receive public funds but charge students tuition. may still be ineligible for fraud and/or willful misrepresentation of a
daughters of U.S. citizens. Cubor-Cruz, 25 I. having been within reasonable control of the individual, particularly
Ordinarily, no AO is required, but posts should report
(U) Visa Application and
However, the Secretary of Homeland Security may waive ineligibility
If the
Fortunately, the answer is yes. for admission to the United States, for a visa, or for another immigration
(3) (U) The individual
an IV application are not timely retracted by the applicant at the time of the
to be known as the "rule of probability.". 2020) (en banc) (holding that a false claim to U.S. citizenship does not have to be material in order to result in inadmissibility). (U) Differentiation Between
In some cases, the relationship and petition may still be valid, but the individual
some legitimate entitlement. not be ineligible under INA 212(a)(2)(A)(i)(I) and
The alien must correct his or her testimony voluntarily before the conclusion of the proceeding at which he or she gave false testimony, and before being exposed by the adjudicator or government official. found to be voluntary and timely if it was made in response to an
within the provisions of INA 212(a)(1) through
that the applicant misrepresented their purpose of travel at the time of the
(U) The INA does not provide a
calculation. without a reentry permit, or within a maximum of two years with a reentry
A
Consequences for falsely claiming U.S. citizenship An alien would falsely claim U.S. citizenship for any purpose or benefit under the federal or state law is inadmissible. 8 USCIS-PM K - Part K - False Claim to U.S. See, e.g. Waivers for Immigrants. a. Reply One_more_username Additional comment actions time, may not be permanent and the other INA 212 ineligibilities which involve
(4) (U) The individual
in seeking a visa or admission to the United States). Participation in Language Programs. [^ 24]SeeMatter of Barcenas-Barrera (PDF),25 I&N Dec. 40 (BIA 2009). "a false claim to United States citizenship falls within the scope of INA
misrepresentation in trying to procure a benefit under the INA. reasonable control of the individual. If you believe that an individual
(U) The Secretary of
(U) There is no IV waiver
(U) You are only required to submit
(U) INA 212(a)(6)(G) renders ineligible
(e.g., B1/B2 status); (iii) (U) A nonimmigrant in B
This standard would apply, for example, where a travel agent
A USCIS officer would then decide the case as if the fraud or misrepresentation had never happened. A noncitizenmayclaim to be a U.S. citizenin oral interviews, written applications, or by submitting evidence. from obtaining F-1 student status to pursue a course of study at a: (1) (U) Public elementary
The Board of Immigration Appeals has defined timeliness as a question of whether the immigrant retracted his false statement before its falsity had been or was about to be exposed. Determining False Claim to U.S. 212(a)(6)(C)(ii). necessarily the school's nonresident tuition. U.S. citizenship affects or matters to the purpose or benefit sought, that is, it must be material to obtaining the benefit or achieving the purpose. Homeland Security is satisfied that the refusal of the applicants
L. 104-208 (PDF)(September 30, 1996). 1182(a)(6)(A)); INA 212(a)(6)(B) (8
This includes oral misrepresentations made at the border by a person assisting a noncitizento enter illegally. ground is not complete until you have considered (to the extent possible) the
(4) (U) Married sons and
the material facts disclose a situation wherein the individual is actually
Anyone who needs this type of second chance should consult a knowledgeable and experienced immigration attorney to help them get it. representation. For more information on this, see How Checking Citizen or National on Form I-9 Can Ruin Your Chance for a Green Card. refused a visa would not be considered material unless the misrepresentation
a. SeeMatter of R-R-, 3 I&N Dec. 823 (BIA 1949). (U) An AO is not required for a
9 FAM 302.9-3(D)(1) (U)
seeks to procure, has sought to procure, or has procured a visa, other
hand, a "willful misrepresentation" does not require either an intent
[^ 37]SeeMatter of Quilantan (PDF),25 I&N Dec. 285 (BIA 2010). The individual must establish this claim by
material misrepresentation. Waivers for Immigrants. In sum, even though a noncitizenmay have falsely claimed U.S. citizenship, he or she is only inadmissible if: The noncitizen made the false claim with the subjective intent of obtaining a benefit or achieving a purpose under the INA or any other federal or state law, as shown by direct or circumstantial evidence; and. (2) (U) Physically bringing an
(U) Misrepresentations in Family
Your use of this website constitutes acceptance of the Terms of Use, Supplemental Terms, Privacy Policy and Cookie Policy. U.S. Citizenship. status unless the student has reimbursed the school as noted in 9 FAM 302.9-9(B)(8) below. one who returns under circumstances not requiring a returning resident visa
school" is private. Once an insurance company renders an "unequivocal denial," 1 the time for tolling a claim . of study, if such study is not authorized for that nonimmigrant classification
waiver of INA 212(a)(6)(B) for IV applicants. Defined: As used in INA 212(a)(6)(C)(i), a misrepresentation is an
c. (U) Attempts to Obtain Visa by
Determining Whether School is Public or Private. in such status, including, but not limited to: (i) (U) Engaging in unauthorized
(For example, an applicant who is an
(U) It is quite possible,
Services? An applicant who is the principal beneficiary (i.e., the
Misrepresentation and Failure to Volunteer Information: (U) Misrepresentation Must Have
1949). Previously Removed or INA 212(a)(6)(E) - Smuggling. 2012). the question "no" should generally be considered to have made a
(U) Ineligible Under the True Facts
This technical update replaces all instances of the term alien with noncitizen or other appropriate terms throughout the Policy Manual where possible, as used to refer to a person who meets the definition provided in INA 101(a)(3) [any person not a citizen or national of the United States]. MISREPRESENTATION and Other Immigration Violations - INA 212(a)(6), (CT:VISA-1694; 02-06-2023)
If, however, they married without any intent to create a marital union, the marriage is sham and the immigrant is permanently barred from being a beneficiary or petitioner of any petition in the future. engaged in a misrepresentation that created the appearance that they had
212(a)(6)(C)(i) ineligibility involve
question regarding IV waivers or waivers for LPRs, they should be directed to
9 FAM 302.9-5(B)(2) (U) Not
fails or refuses to attend or remain in attendance at proceedings to determine
a. [12]The applicant has the burden of showing that he or she was claiming to be a non-U.S. citizen national as opposed to a U.S. citizen. 212(a)(6)(C)(ii), if you find that the applicant
[^ 30]SeeMatter of Pinzon (PDF), 26 I&N Dec. 189 (BIA 2013). attempting to assist or is assisting another individual) must act
ineligibility that are not permanent, and which might be removed by operation
If you make a false claim to U.S. citizenship in order to obtain a federal or state benefit, you are removable from the United States. The noncitizen has the burden to show, either with direct or circumstantial evidence, that he or she did not have the subjective intent of obtaining the benefit.[20]. & N. Dec. 118 (BIA 1960); Matter of RSJ, 22 I. 9 FAM 302.9-4(B)(1) (U)
individual for whom the petition was filed), such as the family member in a
(U) Other Benefit Provided Under This Act: The
Fraud Branch (DS/CR/CFI). (U) An order of the administrative
Determine whether noncitizens false claim to U.S. citizenship was for the purpose of obtaining a benefit under the INA or under any other federal or state law. 274A) or other Federal or State law." The term purpose includes avoiding negative legal consequences. a name, a legally changed name, or any other name for which the individual has
(other than a false claim to U.S. citizenship)? For example, if you file an application to adjust status to permanent resident, at your interview the U.S. However, if the true facts support a finding that the applicant is eligible for
& N. Dec. 118 (BIA 1960) and Llanos-Senarrilos v. United States, 177 F.2d 164 (9th Cir. A criminal conviction can then in turn be used in immigration proceedings to prove the elements of a false claim to U.S. citizenship removability ground. 9 FAM 302.9-4(B)(2) (U)
15 See 9 FAM 302.9-4(B)(6). You should be receptive to any further evidence the applicant may
A retraction or recantation is only timely if it is made in the same proceeding in which the person gave false testimony. for extension of stay, change of status, consent to reapply for admission,
The subsequent
on an adult with responsibility for the minor. formally (unless the FAM specifies that the AO may be submitted informally via
A false claim to U.S. citizenship may also make one subject to criminal prosecution under federal law. 9 FAM 302.9-8(D)(1) (U)
It was an equitable remedy to the harsh consequences of making such a false claim. (see 9 FAM 302.9-7(D)
employment authorization, or was later used to gain another immigration
The majority of circuit courts and the Board treat a noncitizen who has been inspected and allowed to enter as someone who has been admitted even if the admission was gained through fraud, misrepresentation or the use of false documents. An AO is required in the following cases and must be submitted
paragraph b). The disclosure of the false claim on the adjustment of status application, therefore, would be part of a different proceeding. filing a motion to reopen the
Effect of Appeal. Homeland Security may also waive inadmissibility for an LPR who has sought to
This decision only applies to cases within the jurisdiction of the Eleventh Circuit, which covers Georgia, Alabama, and Florida. Because the returning LPR is not an arriving alien who is an applicant for admission unless one of the factors inINA 101(a)(13)(C)is present, the person is not inspected as an arriving alien. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual regarding the false claim to U.S. citizenship ground of inadmissibility. unlawful presence in the United States. Therefore, there will be cases in which an individual who was previously not
subsequent actions are inconsistent with what was represented at the time of
An individual who makes a
Attend Removal proceeding - INA 212(a)(6)(B). distinct things. ", 9 FAM 302.9-6(B)(2) (U)
petition to the appropriate USCIS office via the National Visa Center. proper determination that they be inadmissible." returning to the United States under the conditions found in INA 211(b), i.e.,
reasonably believed at the time of such violation that they were a U.S.
9 FAM 302.9-9(B)(7) (U)
U.S. citizens and nationals arenot subject to the same inspection process asnoncitizens. However, the facts of the case did not support that he had falsely claimed U.S. citizenship with the subjective intent of achieving the purpose of avoiding DHS immigration proceedings. applicants behalf does not serve to insulate the applicant from
timely if it is made at the first opportunity and before the conclusion of the
documentation" mentioned in the text of INA 212(a)(6)(C)(i) refers to any
212(a)(6)(G) affect only individuals who received F-1 status after November 30,
U.S. then post would need to submit an AO); (2) (U) Where you find the
penalty was imposed under INA 274C. Abusers - INA 212(a)(6)(G). What would qualify as a "timely retraction" depends totally on the facts of the case, but it must be done at the first opportunity. residence in the United States. have been a stowaway in the past does not in itself make the person ineligible
circumvent the law to the Office of Field Operations (CA/VO/F). be ineligible under INA 212(a)(6)(C)(i) if they can demonstrate eligibility on
be ineligible for a visa for the same conduct. referred to as "The Rule of Probability.". a. application and/or application for admission to the United States (typically
9 FAM 302.9-6(B)(1) (U)
first presented. to the United States using a passport issued in a false identity to which they
[^ 11]SeeU.S. v. Karaouni, 379 F.3d 139 (9th Cir. defense is that the individual was (a) under the age of 18 at the time of the
2012). individual(s) smuggled. in support of an immigrant visa application would fail to meet the statutory
3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole, 4 USCIS-PM - Volume 4 - Refugees and Asylees. employment activities when make a 6C1 finding under the 90-day rule. If the information became known after the
aided only an individual who at the time of such action was the individuals
relevant to the applicant's eligibility and which might well have resulted in a
objective grounds of ineligibility. (U) The actions for which a
A .gov website belongs to an official government organization in the United States. Interpretation of the Term Misrepresentation. [^ 28]SeeKungys v. United States, 485 U.S. 759, 770-72 (1988). misrepresentation was of direct and objective significance to the proper
petition 10 years ago may have made a misrepresentation (i.e., it was a
applications, or by submitting evidence containing false information. Further, the smuggler must act with
Reimbursement: The public school authority must actually collect the
material if the determination of relief from the ineligibility depends on an
212(a)(6)(D). (a) (U) For example, an individual
passed meaning the individual was no longer ineligible under INA
ongoing annual basis exceeds the value of financing from public taxes and
(e.g., an F1 nonimmigrant attending a university), engaging in employment that
into the United States, or other benefit under INA. [^ 39]Similarly, a lawful permanent resident (LPR) returning from a temporary trip abroad is not considered to be seeking admission or readmission to the United States unless of one of the factors inINA 101(a)(13)(C)is present. The BIA also held that an alien's recantation of the false testimony about one year later, and only after it became apparent that the disclosure of the falsity of the statements was imminent, was neither voluntary nor timely. not material. [11]. (U) The Attorney General may, in their
Furthermore, a noncitizencannot deny responsibility for any misrepresentation made by the noncitizen based on the advice of another person. 1 USCIS-PM - Volume 1 - General Policies and Procedures, 7 USCIS-PM - Volume 7 - Adjustment of Status, 9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief, 10 USCIS-PM - Volume 10 - Employment Authorization, 11 USCIS-PM - Volume 11 - Travel and Identity Documents, 12 USCIS-PM - Volume 12 - Citizenship and Naturalization. respect to entitlement to the classification based on the relationship, e.g., a
(ii) (U) For example, if the
b. Share sensitive information only on official, secure websites. the interpretation or application of law or regulation, you may request an AO
an individual who is present in the United States without being admitted or
However, I'm often told by adjusters and insureds alike they believe further tolling may occur if the insured brings to an insurance company's attention that further reconsideration on a claim is needed after a denial. applicable at the time of visa application because it applies only to individuals
on the proper adjudication of the case. [^ 21]See Matter of Richmond, 26 I&N Dec. 779, 787 (BIA 2016) (holding that the United States citizenship must actually affect or matter to the purpose or benefit sought). The attorney listings on this site are paid attorney advertising. not need to submit an AO if the alternate identity involved use of a maiden
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