Under INA section 212(a)(6)(C)(i) “any alien who by fraud or willfully misrepresenting a material fact seeks to procure (or sought to procure or has procured) a visa, other documentation, or admission into the United States or some other benefit provided under” the INA is ineligible. Common examples of misrepresentations include lying on a visa application, failure to disclose criminal history and providing false documents or information to obtain an immigration benefit. However, misrepresentation under immigration law requires a complex analysis. The common everyday understanding of misrepresentation does not apply under the INA, and therefore there are many arguments that can made to challenge a misrepresentation finding of inadmissibility.
To be found inadmissible, the following elements must be present:
- Materiality. The misrepresentation must be “material.” In order to determine the materiality of the misrepresentation, courts have come up with the following framework:
- The misrepresented fact was directly disqualifying, such as lying about travel history or aggravated felony conviction; or
- The misrepresented fact would be sufficient to prompt “reasonable officials … to undertake further investigation” and
- The investigation “ ‘would predictably have disclosed’ some legal disqualification.” Maslenjak v. U.S., 582 U.S. __, 137 S.Ct. 1918, 1928-30 (2017).
But even if the government is able to make the initial showing, if the applicant can prove he still would have been eligible on the true facts, then the representation is not material. Therefore, if the “true facts” meant the applicant remained eligible for the visa, the misrepresentation is not material. For example, if an applicant failed to disclose their true name and the visa would have been issued regardless, the misrepresentation is not material. Another example would be if the applicant failed to disclose a crime, but the person would have remained eligible for the visa despite the crime, then the misrepresentation is not material.
Materiality is a complex legal issue and it is important to discuss a misrepresentation allegation with an attorney to determine whether any arguments exist as to the “materiality” of the misrepresentation.
In addition to the misrepresentation being material, it must have been made to a US government official.
- Must be Made to US Official. The misrepresentation must be made to a US consular officer to other US government official. For example, if someone made a misrepresentation to an airline but not to a US official at the time of entry, then the misrepresentation would not count, because it is not made to a US official.
There are many circumstances that exist where the misrepresentation was not made to a US government official, and it is important to discuss the facts surrounding the misrepresentation to determine if it satisfies the “US official” requirement.
The next requirement is that the misrepresentation be “willful.”
- Willfulness. A misrepresentation is willful if deliberate and voluntary. Matter of D-R-, 25 I&N Dec. 445, 451 n.3 (BIA 2011). A misrepresentation is not willful if it is a result of an innocent mistake, negligence or inadvertence. Emokah v. Mukasey, 523 F.3d 110, 117. Importantly, in order for a misrepresentation to be willful, there must be knowledge of falsity. Ortiz-Bouchet v. U.S. Att’y Gen., 714 F.3d 1353, 1356-57 (11th Cir. 2013) Willfulness is further defined as requiring “an evil-meaning mind, that is to say that he acted with knowledge that his conduct was unlawful.” Bryan v. U.S., 524 U.S. 184, 193.
Whether a misrepresentation is “willful” requires the analysis of a lawyer. But courts have routinely found that honest mistakes are not considered willful misrepresentations.
If USCIS or a consular officer is making an inadmissibility finding based on a misrepresentation, it is important to discuss this finding with an attorney. Possible challenges to the inadmissibility finding include discussing the lack of materiality or willfulness of the misrepresentation.
When Misrepresentation Cannot be Challenged
Depending on the facts of the case, it may be a better strategy to admit to the misrepresentation and seek a waiver. Misrepresentation inadmissibility under INA 212(a)(6)(C)(i) can be waived through an I-601 Waiver of Grounds of Inadmissibility.
To be eligible for a misrepresentation waiver, the following requirements must be met:
- You are inadmissible to the United States;
- That the refusal to admit you to the United States will result in extreme hardship to your US Citizen or lawful permanent resident spouse or parent.
- It is important to note that hardship to children will not be considered for a misrepresentation waiver, although they may be indirectly considered as they relate to the hardship your spouse will face.
It is important to note that if you are accused of a misrepresentation and do not challenge this, then you must seek a waiver. In these cases, you should discuss your case with an immigration lawyer to present a strong hardship case.
Extreme Hardship Defined. Courts have understood extreme hardship to exceed what is usual or expected in the case of separation but they need not be unique, Matter of L-O-G-, 21 I&N Dec. 413, 418 (BIA 1996). While applicants must show more than the usual level of hardship from family separation or relocation, “Congress clearly intended the waiver to be applied for purposes of family unity and with other humanitarian concerns in mind.” Matter of Lopez-Monzon, 17 I&N Dec. 280, 281.
Factors considered in determining “extreme hardship” include:
- Expert opinions;
- Medical or mental health documentation and evaluations by licensed professionals;
- Evidence of employment or business ties
- Financial documents
- Community Involvement
- Country Reports
- Affidavits and Statements signed under penalty of perjury
In filing hardship waivers, it is also important to discuss the impact of separation and relocation. In determining the hardship of relocation, the following evidence may be submitted:
- Evidence of the difficulty of living in a foreign country
- Evidence of instability or violence in a third country
- Difficulty of obtaining medical services
- Difficulty of finding employment
- Difficulty learning a new language
- Difficulty obtaining child care
- Difficulty obtaining education for children or spouse
- Financial analysis of impact of separation, such as travel expenses and the requirement to support more than one household
- Societal problems within the second country, such as discrimination against certain individuals, including LGBT marriages, multiracial families or interfaith couples.
Aggregation of Hardships. Sometimes there are cases where there is not one significant “extreme hardship” but all the smaller hardships combined result in an extreme hardship. USCIS has noted that hardship may be aggregated not only due to different medical, emotional, economic factors, but may be aggregated in terms of more than one qualifying relative.
An allegation of misrepresentation is serious and can disqualify you from obtaining permanent residency in the United States. However, if you’ve been accused of a misrepresentation, then there are ways to challenge this. You can either challenge whether the misrepresentation satisfies all the required elements under immigration law, or you can admit there was a misrepresentation and seek a waiver. In many circumstances, a lawyer will argue all possibilities to obtain the best outcome.