"Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, 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 fact misrepresented is material.
4. The alien uses fraud to receive a benefit under the Immigration Act (i.e. visa, entry into the US, labor certification, adjustment of status, etc.).
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. "Silence or the failure to volunteer information does not in itself constitute a misrepresentation."
2. The alien’s misrepresentation must have been before a US government official (i.e. a US Consular Officer or a DHS Officer). Misrepresentations made to officials of other countries’ governments may not constitute "misrepresentation" for purposes of finding a person ineligible for a US 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. A misrepresentation is "material" if either:
(a) The alien is ineligible for the visa based on the true facts; or
(b) The alien’s misrepresentation "tends to shut off a line of inquiry which is relevant to the alien’s eligibility and which might well have resulted in a proper determination that he be excluded." For example, if you are asked if you are married, and you say "no", such a response would tend to "shut off a line of inquiry" by the Consular Officer regarding your marital status or history.
5. In order for a misrepresentation to be considered "material", the truth of the matter must lead to a proper finding of ineligibility for a visa. However, if the truth would still support a finding that the alien is nevertheless eligible for a visa, then the misrepresented fact is not material. In other words, depending on the facts and issues of a particular case, if the truth would have still entitled you to a visa, a misrepresentation may not be considered "material". If, however, the true state of facts would demonstrate that the alien was not eligible for the visa, then the fact would certainly be material.
If you, or a relative or a friend, were denied a visa 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 your situation regarding whether you made 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 US 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 in certain circumstances.
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