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Fraud & Misrepresentation

Fraud & Misrepresentation

In immigration law, there are various grounds of inadmissibility that may make an applicant ineligible for an immigration benefit.

An individual, “who, 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)

Lawful Permanent residents can also be charged with being deportable, under INA §237(a)(1), for being inadmissible at the time of entry into the United States if they have committed fraud or made a material misrepresentation.

There are two distinct ways in which someone can be found inadmissible under INA 212§(a)(6)(C)(i): (1) by committing a willful, material misrepresentation, OR (2) by committing a fraud.

Both are similar. By definition, if you commit a fraud, you have committed a misrepresentation. However, to be charged with committing a fraud the officer must find that two additional elements have been met.

Misrepresentation

To be found inadmissible for committing a misrepresentation, the officer must find that the individual “willfully misrepresented a material fact.” The officer must find that:

  • The applicant procured, or sought to procure a benefit under U.S. immigration law;
  • The person misrepresented a fact;
  • 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;
  • The misrepresentation was made willfully; AND
  • The misrepresentation was made to a USCIS officer, consular officer, or other U.S. government official.

Notably, the officer does not need to find that the applicant intended to deceive anyone.

Fraud

A finding of inadmissibility due to fraud requires that the applicant knowingly misrepresented a material fact (see above), with the intent to deceive the official. All the above findings must be met, along with the following:

  • The misrepresentation was intended to deceive the officer (typically a USCIS, Customs and Border Protection, or consular official); AND
  • The officer believed the misrepresentation and in relying on the misrepresentation granted some sort of immigration benefit.

Inadmissibility due to misrepresentation includes attempts to obtain an immigration benefit, even if you are unsuccessful. Whereas inadmissibility due to fraud typically requires that an official believed and relied upon the misrepresentation. However, according to USCIS, this last requirement may be inapplicable if a fraud finding is based on “seeking to procure.”

Waivers of Misrepresentation & Fraud

If you are charged with misrepresentation or fraud, you can argue that your representation was not untruthful, not willful, immaterial, or that one of the other elements for a finding of inadmissibility was not met.

If you are unsuccessful with those arguments, then there may be waivers available to you, whether you are applying for a green card, or already hold a green card.

Waivers exist for allegations of inadmissibility under both INA §212(a)(6)(C)(i) and INA §237(a)(1). 

Other types of Misrepresentations & Fraud

Two other notable types of misrepresentations, that are beyond the scope of this article, and which are waivable only in very narrow circumstances:

  • An individual who falsely claims to be a United States citizen;
  • Individuals who are inadmissible and who are subject to a final removal order for document fraud under INA §274C.

If you have been charged with fraud or misrepresentation, or believe that you may be charged, please contact an immigration attorney who is trustworthy and knowledgeable! Our attorneys at Landerholm Immigration, APC, are experienced in complex fraud and material misrepresentation cases. Please feel free to call us at 510-488-1020 to see how we can help!

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