Did you really make a misrepresentation?

Many people find themselves facing a lifetime ban from entering the US (or getting a green card) because they were accused by the INS or Embassy of visa fraud. While in some cases, a person truly did commit fraud, there may be some special cases or circumstances where the person’s actions or misrepresentations do not amount to the legal definition of fraud.

The main law prohibiting visa fraud or misrepresentation is Section 212(a)(6)(C), which states:

"Any alien who, by fraud or willfully misrepresenting a material fact, seeksto procure (or has sought to procure or has procured) a visa, otherdocumentation, or admission into the United States or other benefit provided under this Act is inadmissible."

By law, not all misrepresentations result in a person’s automatic ineligibility for a visa. In order for an alien to be ineligible for a visa based on fraud or misrepresentation, the following elements must exist:

1. There has been a misrepresentation made by the applicant.

2. The representation was willfully made.

3. The alien uses fraud to receive a benefit under the Immigration Act (i.e. visa, entry into the U.S., labor certification, adjustment of status, etc.).

4. The fact misrepresented is material. If the misrepresentation is not "material," the person may still be eligible for a visa.

In determining whether or not a person made a material misrepresentation, the following rules apply:

1. The misrepresentation must be a positive or affirmative statement or act made by the alien. "Silence or the failure to volunteer information does not in itself constitute a misrepresentation ".

2. The alien’s misrepresentation must have been before a U.S. government official (i.e. a U.S. Consular Officer or an INS Officer). Misrepresentations made to officials of other countries’ governments may not constitute "misrepresentation" for purposes of finding a person ineligible for a U.S. visa.

3. If a person made a misrepresentation, but timely retracted that misrepresentation, then a "timely retraction will serve to purge a misrepresentation and remove it from further consideration as a ground for . . . ineligibility."

4. Only misrepresentations of material facts constitute grounds for ineligibility of a visa.

5. ‘In order for a misrepresentation to be considered "material", the truth of the matter (or alien’s circumstances) must lead to a proper finding of ineligibility for a visa. However, if the truth would still support a finding that the alien is eligible for a visa, then the misrepresented fact is not material.

As I have stated in the past, people should always be honest and truthful with the INS and/or Embassy when applying for visas. If people lie, chances are very high that the INS and/or Embassy will find out. If you, or a relative or a friend, were denied a because of misrepresentation, you should consult a reputable and reliable attorney. Sometimes, a denial may not be the end of the line. An experienced attorney could analyze whether the misrepresentation would constitute a "material misrepresentation" under existing immigration law, and advise whether you, your friend, or relative can qualify for a waiver or "forgiveness" for the misrepresentation. A waiver is available if a person is the spouse, son, or daughter of a U.S. citizen or green card holder ("qualifying relative") and it is shown that the qualifying relative would suffer "extreme hardship" if the waiver is not granted. If you made a misrepresentation, and the waiver is approved, then you may still be able to get your visa.

Michael J. Gurfinkel has been a licensed attorney in California for over 21 years. He has always excelled in school: Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California. He is also an active member of the State Bar of California, the American Immigration Lawyers Association, and the Immigration Section of the Los Angeles County Bar Association. All immigration services are provided by an active member of the State Bar of California and/or by a person under the supervision of an active member of the State Bar.

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(This is for informational purposes only, and reflects the firm’s opinions and views on general issues. Each case is different and results may depend on the facts of a particular case. No prediction, warranty or guarantee can be made about the results of any case. Should you need or want legal advice, you should consult with and retain counsel of your own choice.)