Fraud and material misrepresentation

INA §212(a)(6)(C)(i), 8 U.S.C. §1182(a)(6)(C)(i)

One of the top priorities for all immigration agencies is identifying people who are intentionally abusing the US immigration system. Issues of fraud are taken as seriously as any other criminal matter.

An individual is inadmissible if she secures, or even attempts to secure, an immigration benefit by lying. Somebody who is determined to have lied to an immigration agent is subject to a lifetime states. (There is a potential waiver available, but we will not discuss that here). This covers every statement that an individual has ever made to immigration agency, whether on the application or an oral statement given to an agent. This means that an inaccuracy on a tourist visa application from 10 years ago could potentially subject somebody to a lifetime ban.

Under the immigration statute, a misrepresentation creates an inadmissibility problem only if it was “material.” This means that the misrepresentation created a different outcome in a prior application or entry to the US. But for issue spotting purposes, please simply assume that any prior misrepresentation is a very serious issue that you need to explore. Never assume that a former life is not an inadmissibility issue just because it doesn’t seem like a big deal to you.

In marriage and fiancé immigration matters, the primary fraud related issue that most people need to be concerned about is proving the legitimacy of the underlying relationship. That is, proving that the relationship is bona fide. If the agencies determine the relationship is not bona fide, the application can be denied and a lifetime fraud ban issued. We discussed at length elsewhere in this resource how to demonstrate the legitimacy of your relationship.

Issues of fraud can arise in an adjustment of status cases when there is a question of whether somebody abused the privileges of a temporary visa tourist visa. As discussed elsewhere, an individual is typically not permitted to enter the United States on a temporary visa with the intention to seek residency. Somebody who enters the United States on a temporary visa and quickly seeks adjustment of status risks the finding that she intentionally abused the temporary visa. We discussed the scenarios extensively elsewhere in this resource.

Misrepresentations on prior visa applications can create problems even if you did not fill out the application yourself. When you submit the visa application you are responsible for the accuracy of the statements in that application. In many countries, it is common to hire at non-attorney to assist in preparing a visa application, especially where the applicant has limited English ability. If you ever hired such a person, you must proceed with great caution. It is unfortunately common for such people to make misrepresentations on visa applications in hopes of securing an approval for their client. Those visa applications are going to be accessible to the immigration agent reviewing your marriage or fiancé application. So any prior misrepresentation can come back to haunt you. If you think you may have such a potential issue, you may want to file a Freedom of Information Act request in hopes of obtaining your former application. Ideally, you will want to review this before your current matter is adjudicated.

Another area where I worry about misrepresentation issues is where people are not adequately thorough on their applications. A prime example is where applications ask for your group memberships (such as the I-485 and DS-260). In my experience, people almost always fail to list all of the groups that they have actually been members of, thinking that they just need to list “important” groups. That type of sloppiness is hazardous. In immigration officer could conclude that you were intentionally trying to conceal membership in a group and determined that failing to include the group was an act of fraud. Be careful and be thorough.