The past few weeks, I’ve written about the unwaivable types of fraud – marriage fraud, asylum fraud, and false claims to U.S. citizenship. But not every lie or misrepresentation is a permanent bar from immigration benefits. So today I am going to write about types of fraud that can be waived.
Under section 212(a)(6)(C)(i) of the Immigration and Nationality Act, a person who commits fraud or willful misrepresentation is inadmissible to the United States. However, there is a waiver available under INA §212(i). Certainly one should not aspire to commit fraud, but if it has happened, there may be ways to ask USCIS for forgiveness.
USCIS defines fraud as procuring, seeking to procure, or has procured a benefit under immigration law by knowingly making a false representation of material facts with the intent to deceive a U.S. government official. In addition, for a finding of fraud in the immigration context, the U.S. government official must have believed and acted upon that lie by granting an immigration benefit.
A willful misrepresentation is very similar to fraud. The difference is that the U.S. government official does not have to believe the lie nor did they have to grant the immigration benefit being sought.
Note that both fraud and willful misrepresentation require that action is taken or a statement is made in the affirmative. An omission is not a lie.
What exactly does that mean and what does it look like?
EXAMPLE 1
Entering the United States using someone else’s (non-U.S.) passport and visa.
This is one of the more common examples of immigration fraud and misrepresentation. The person has presented a document to an immigration official, knowing the document is not legitimate and was granted admission to the United States.
EXAMPLE 2
Telling a consular officer that you are single, but you are really married.
The consular officer has proof that the applicant is married. In this case, you have committed a willful misrepresentation.
EXAMPLE 3
When entering the United States, the CBP officer asks why you’re coming to the United States. You say you’re coming to visit friends. This is a true statement, but you’re also coming to visit your spouse who lives in the United States, and you don’t tell the CBP officer that.
Is it fraud or a willful misrepresentation to not mention your spouse? No.
If the CBP officer asked if you were married and if your spouse lived in the U.S. and you said no, then you would be inadmissible for fraud and willful misrepresentation. Simply failing to say something is not grounds for an inadmissible finding.
EXAMPLE 4
Getting a California driver’s license when the applicant resides in Georgia.
In order to obtain a driver’s license from a state, you need to reside in that state. This is a willful misrepresentation, but because it wasn’t for an immigration benefit, it is not a ground of inadmissibility.
Examples three and four do not require waivers because they are not examples of fraud or willful misrepresentation. Examples one and two, though, will require a waiver. There is no statute of limitations on fraud – if you committed fraud 2 or 20 years ago, you need a waiver.
For a waiver of this ground of inadmissibility, the applicant must show that a U.S. citizen or Lawful Permanent Resident spouse or parent would suffer extreme hardship if the applicant cannot be admitted to the United States.
For more information on what extreme hardship is and what factors are considered, please review our waivers section.
– Tracie