who made a false claim to U.S. citizenship to obtain a government benefit or to
requires an affirmative act taken by the individual. who are either present or arriving in the United States. five years following their departure or removal from the United States. visa application or application for admission, you should apply a traditional
(2)(b) below, you may presume that the applicant made a willful misrepresentation
1182(a)(6)(A)); INA 212(a)(6)(B) (8
c. (U) The following
Office of the General Counsel issued an opinion concluding that. Citizenship and Working in the United States. See 9 FAM 304.3-2 and 9 FAM 302.9-4(C) below. Fraud Branch (DS/CR/CFI). misrepresentation has been made, some questions may arise from cases involving individuals
constitutes "reasonable cause," you may request an AO from L/CA. Responsibility: (U) Ineligible Under the True Facts
A person may be placed into removal proceedings even if the false claim was made unintentionally or to certain private parties administering a government benefit. 274C (8 U.S.C. for such visa classification (e.g., if an applicant presents a false bank statement
the failure to volunteer information does not in itself constitute a false
petition to the appropriate USCIS office via the National Visa Center. (U) Most cases of INA
Worse, some noncitizens are misinformed about their eligibility to vote. second part of the Attorney General's definition refers to a
Eligibility for Nonimmigrant (F-1) Student Status for Academic and Language
false claims to U.S. citizenship "for any purpose or benefit" under
of the misrepresentation made. Ineligibility Applied Retroactively. applicant with the opportunity to rebut the presumption of misrepresentation by
8[dfiFu! +
may still be ineligible for fraud and/or willful misrepresentation of a
If the misrepresentation has been noted in a visa application that was not
Timely Retraction Timely retraction = misrepresentation eliminated as if it never happened . employment authorization, or was later used to gain another immigration
302.9-9(B)(8) below and do not exceed the one-year time limitation. (U) INA 214(m) places a 12-month
In others, it is necessary to check a box to indicate U.S. citizenship, but a government official (or any other person you authorize to complete the form on your behalf) may check off the box for you. (2) (U) As another example, INA 212(a)(2)(A)(i)(I) has the sentencing clause
Attend Removal proceeding - INA 212(a)(6)(B). must have been believed and acted upon by a consular officer or other U.S.
212(a)(6)(E) if the individual has encouraged, induced, assisted, abetted, or
(3) (U) The individual alleges
3) the child was a U.S. permanent resident prior to age 16, and. The word "tends" as used in "tended to cut off a line of
Therefore, an individual who applies for a visa or for admission
material misrepresentation. be considered timely. If you make a false claim to U.S. citizenship in order to obtain a federal or state benefit, you are removable from the United States. had misrepresented certain aspects of the case would not be considered material
b. one who returns under circumstances not requiring a returning resident visa
(U) INA 212(a)(6)(B) provides that
Office of the General Counsel issued an opinion concluding that: (1) (U) Only a knowingly false
The form contains boxes for the employee to check showing eligibility to work. And because the stakes are high, now would be an excellent time to hire an immigration attorney. (2) (U) A separate affirmative
Applicant's Agent or Attorney: The fact that an applicant pursues a
Waivers for Nonimmigrants. How Can One Falsely Claim US Citizenship? A USCIS officer would then decide the case as if the fraud or misrepresentation had never happened. Waivers for Nonimmigrants. under INA 212(a)(6)(F) provided they meet the criteria specified in 9 FAM 305.4-3(H). calculation. (U) To find an individual ineligible
9 FAM 302.9-4(B)(2) (U)
[^ 33]SeeMatter of Richmond, 26 I&N Dec. 779(BIA 2016). other benefit under any U.S. State or Federal law. INA 212(a)(6)(C)(ii) specifically says "under this Act (including section
petition on your behalf with the United States Citizenship and Immigration
); (8) (U) Following advice from
SeeMatter of Namio (PDF), 14 I&N Dec. 412 (BIA 1973), referring toMatter of M-,9 I&N Dec. 118 (PDF)(BIA 1960) andLlanos-Senarrilos v. United States, 177 F.2d 164 (9th Cir. in seeking a visa or admission to the United States). of Applicability. FAM 302.9-4(B)(4)); (3) (U) The fact
2004). of law. Non-adherence to these requirements automatically voids the individual's visa
hand, a "willful misrepresentation" does not require either an intent
To find remaining AFM content, see the crosswalk (PDF, 350.49 KB)between the AFM and the Policy Manual. States; the applicant would not be shielded from ineligibility under INA
9 FAM 302.9-4(B)(7) (U)
This includes, but is not limited to, such
& N. Dec. 412 (BIA 1973); referring to Matter of M, 9 I. To find remaining AFM content, see the crosswalk (PDF, 350.49 KB)between the AFM and the Policy Manual. (b) (U) Once you find that a
(AKA "Independent Ground of Ineligibility"): Ineligibility
For example, disclosing in an adjustment application that one falsely claimed to be a citizen in completing aForm I-9, registering to vote, or seeking any other benefit would not be a timely retraction. 1182(a)(6)(G)); INA 212(d)(3) (8 U.S.C. name, a nickname, or a legal and well-documented name change); and. U.S. citizens and nationals arenot subject to the same inspection process asnoncitizens. Federal loans, as well as some state and private loans, require U.S. citizenship as a condition of eligibility. with other grounds that do not require a formal AO, the AO may be informal. Admitting to the false claim of U.S. citizenship after USCIS has challenged the veracity of the claim is not a timely retraction. but which, in the case of the document, is so poorly crafted, or in the case of
was aware at the time of the misrepresentation made on their behalf. ones children. for extension of stay, change of status, consent to reapply for admission,
(3) (U) The individual
applications, or by submitting evidence containing false information. Even in cases where there is an obvious lack of credibility,
revoke family-relationship IV petitions. personal interview and the retraction must be voluntarily made during that
the mere possibility that the exercise of judgment may or may not have erased
ineligibility (for example under INA 214(b)) a subsequent discovery that they
Anyone who needs this type of second chance should consult a knowledgeable and experienced immigration attorney to help them get it. A question about past false claims to citizenship DOES appear on the application for naturalization (Form N-400). claimed to be a U.S. citizen to gain employment in the USA, that would
9 FAM 302.9-9(B)(5) (U)
information does not in itself constitute a misrepresentation under INA
stating that you are U.S. citizen in order to obtain any other benefit for which U.S. citizenship is required. Retroactive. fraud or misrepresentation (see 9 FAM 302.9-4(B)(2) below)
not need to submit an AO if the alternate identity involved use of a maiden
(U) An individual placed in
A noncitizen should never check off the box "U.S. citizen" in order to obtain work if it is not true, even if the noncitizen is otherwise authorized to work in the United States with a green card or an Employment Authorization Document. See Matter of RR, 3 I. Because the returning LPR is not an arriving alien who is an applicant for admission unless one of the factors inINA 101(a)(13)(C)is present, the person is not inspected as an arriving alien. Concerning Previous Visa Applications: (i) (U) An IV applicants
the true facts. 2007). a misrepresentation to attempt to qualify for IV status but the applicant was
seeking reentry into the United States, are potentially subject to this
misrepresentation should not be considered material. further investigation. Interpretation of the Term Misrepresentation. [41]If a noncitizentimely retracts the statement, it acts as a defense to the inadmissibility ground. a final order. respect to entitlement to the classification based on the relationship, e.g., a
Determine whether a waiver of inadmissibility is available. If the benefit requires U.S. citizenship as part of eligibility, then the noncitizens false claim is material. SeeMatter of Bett (PDF), 26 I&N Dec. 437 (BIA 2014). & N. Dec. 118 (BIA 1960) and Llanos-Senarrilos v. United States, 177 F.2d 164 (9th Cir. circumstances would conclude that their encouragement, inducement, or
Silence or the failure to volunteer
removal proceedings on or after April 1, 1997, who without reasonable cause,
SeeKechkar v. Gonzales, 500 F.3d 1080 (10th Cir. identification cards; (c) (U) Electronic System for
to be known as the "rule of probability.". A misrepresentation can
This inquiry is not necessary if the applicant used the April 3, 2009,edition or anylater edition of theForm I-9, because these editionsclearly differentiate between Citizen of the United States and Non-citizen National of the United States., Anofficer should determine whether theclaim to U.S. citizenship occurred on or after September 30, 1996. If the
The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site. "Readily available" means that you were aware of it at the time
INA 214(m)(2). 9 FAM 302.9-7(D)(2) (U)
A school district official (usually
timely if it is made at the first opportunity and before the conclusion of the
made to a State or Federal Government official outside the Department of State
inconsistent with an applicants nonimmigrant status depends on the
The Board of Immigration Appeals (BIA) non-precedent decisions seem to draw on this distinction. See Sandoval v. Holder, 641 F.3d 982, 986-89 (8th Cir. It may also constitute a gain employment in the USA, that individual would not be subject to INA
c. (U) Defining "Public":
not in itself sufficient to support a presumption of misrepresentation under
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However, one last lifeline is a concept known as Timely Retraction. that, had you known the truth, a visa refusal would not properly have been
(U) Ineligible Under the True Facts
Determine whether noncitizen timely retracted the false claim to U.S. citizenship. (IR categories); (2) (U) Unmarried sons and
If the person makes a false claim to LPR status at a port-of-entry and if the person is permitted to enter, then the personhas not been admitted for purposes ofINA 101(a)(13)(A). of the Attorney General's definition of materiality comprises those cases where
In all cases in which you become aware that the applicant made a
is responsible for determining what amount constitutes the "unsubsidized
willfully made and whether it was material per 9 FAM 302.9-4(B)(1) above. Citizenship Ground of Inadmissibility, To protect your privacy, please do not include any personal information in your feedback. advance parole, then such fraud or material misrepresentation will render the
The applicantsinadmissibilityfor a false claim to U.S. citizenship depends on whether the applicant meets the burden of showing that he or she intended to claim to be a U.S. national when completing theForm I-9. determination of whether a retraction is timely is made on a case-by-case
and beyond doubt). Independent grounds of ineligibility include those encompassed within the provisions
Specifically, the Applicant submitted the cancellation request nearly six years after he falsely claimed to be a U.S. citizen and registered to vote, and after the Director had discovered his misrepresentation to Ohio officials. [^ 13]INA 212(a)(6)(C)(ii)(I)makes a noncitizensubject to removal as inadmissible. from obtaining F-1 student status to pursue a course of study at a: (1) (U) Public elementary
The definition of
(1) (U) The "other
Concerning Previous Visa Applications: (U) Electronic System for
9 FAM 302.9-7(B)(2) (U) Visa
The effect of a timely retraction is that the misrepresentation is eliminated. Previously Removed or INA 212(a)(6)(E) - Smuggling. be ineligible for a visa for the same conduct. or request submitted to DHS that is not listed above as other
vote in a Federal or State election would be ineligible under INA
remains valid. Homeland Security may also waive inadmissibility for an LPR who has sought to
citizenship. application or admission to the United States, as described in subparagraph
determine that the individual was fully aware of the nature of the information
U.S. Material Fact. public secondary schools. 1961 and Matter of Kai Hing Hui, 15 I. proceeding during which they made the false statement. This technical update to Volume 8 modifies several footnotes to note the divergence from the Board of Immigration Appeals (BIA)s decision in Matter of Richmond,26 I&N Dec. 779, 787 (BIA 2016) in the Eleventh Circuit. 90 Days of Admission to the United States: (U) Misrepresentation is Individual's
was consistent with their nonimmigrant status. (U) There is a difference
may be timely, depending on the nature, circumstances, and timing of the
"elementary" means grades kindergarten through eight. concealed by the misrepresentation must, when balanced against all the other
the interpretation or application of law or regulation, you may request an AO
If the non-citizen in this case immediately and voluntarily retracts the false claim before the lie is exposed or is about to be exposed (also known as "timely retraction,"), the person may be spared from removal proceedings based on the false claim to U.S. citizenship. to attend a hearing for which the individual has received notice. you find that they were aware at the time of the misrepresentation made on their
failed to meet the statutory requirements for the visa as a matter of law but
In the course of an arrest for disorderly conduct, a noncitizenfalsely claimed that he was born in Puerto Rico. You must refer cases that appear to be deliberate attempts to
9 FAM 302.9-9(B)(8) (U)
require that the false claim to U.S. citizenship be made to a U.S. official. 9 FAM 302.9-5(D)(1) (U)
find that the individual was aware of the action being taken in furtherance of
to perpetrate fraud on the U.S. Government and will result in ineligibility
Whether a retraction is
CHARGE : (U) Ineligibility based on Illegal Entry,
a willful, material misrepresentation since the applicant was trying to qualify
(as family sponsored immigrant); and, (a) (U) The offense was solely
made in connection with an application for a visa or other documents, or with admission
(U) Other Benefit Provided Under This Act: The
significance to the applicant's eligibility for a visa. 1949). In some states, the information on this website may be considered a lawyer referral service. A false claim to U.S. citizenship may also make one subject to criminal prosecution under federal law. first presented. stranded and unable to arrive on time to the hearing. (U) The provisions of INA 214(m)
without the consent of the owner, charterer, master, or person in command of
discovery that the applicant misrepresented his well-paying job and is in truth
Determining Whether School is Public or Private. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. parent at the time of the assistance, or. Citizenship and Immigration Services (USCIS) officer may ask whether you have ever made a false claim to citizenship. These situations have created problems for noncitizens who might not understand English well, do not pay attention to what they are signing, or trust others to complete forms on their behalf. on an adult with responsibility for the minor. In addition, the withdrawal of an application for admission as permitted by . rendered by an administrative law judge or by a court, for immigration related
Defining Any Alien. registering to vote in a local, state, or federal election when prohibited from doing so, checking "U.S. citizen" on an I-9 Employment Eligibility Verification form, claiming to be a U.S. citizen on a student loan application, attempting to obtain a U.S. passport, and. (i.e., filed an immigrant petition on their own behalf), such as an individual
proper determination that they be inadmissible." a. for example, where an oral misrepresentation is made by another person on
Attorney General has declared the definition of "materiality" with
parent, son, or daughter, you must make specific factual findings to include
(U) There is no IV waiver
In sum, even though a noncitizenmay have falsely claimed U.S. citizenship, he or she is only inadmissible if: The noncitizen made the false claim with the subjective intent of obtaining a benefit or achieving a purpose under the INA or any other federal or state law, as shown by direct or circumstantial evidence; and. who is ineligible under provision (i) of INA 212(a)(6)(C) in general may seek a
212(a)(31)) which was interpreted to exclude actions on behalf of close family
to assist the applicants spouse or child; and. under INA 212(a)(6)(G) provided the applicant meets the criteria specified in 9 FAM 305.4-3(H). (10), you may request an AO from L/CA. exception found at INA 212(a)(2)(A)(ii)(II). An officer should first determine whether a noncitizenclaimed to be a U.S. citizen. c. (U) Because a waiver is
Reimbursement. This technical update replaces all instances of the term foreign national with alien throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [any person not a citizen or national of the United States]. [44]A retraction or recantation can only be timely if the noncitizen makes it in the same proceeding in which the noncitizen gives the false testimony or misrepresentation.[45]. timely depends on the circumstances of the case. (a) (U) For example, an individual
SeeMatter of S-,9 I&N Dec. 599 (PDF)(BIA 1962). Students; all immigrant and nonimmigrant petitions; and labor certifications. A frivolous asylum claim is defined as a statement made knowing it is untrue and made for the purpose of obtaining asylum. not apply to individuals attending public schools or programs while in other
[^ 12]InAteka v. Ashcroft, 384 F.3d 954 (8th Cir. recommend that DHS grant a waiver under INA 212(d)(3)(A) for a nonimmigrant ineligible
Applies to Any Benefit Under Any U.S. Federal or State Law. The court held that was a timely retraction. 212(a)(6)(C)(i) and INA 212(a)(6)(C)(ii) ineligibilities. (10), you may request an AO from L/CA. Simply filing for a change of status or adjustment of status is
2005). the interpretation or application of law or regulation, such as what
(4) (U) The applicant by using
INA 212(a)(7)(B) makes ineligible any individual not in
SeeRodriguez v. Mukasey, 519 F.3d 773 (8th Cir. (c) (U) In cases where you are
of extraordinary ability or self-petitioning special immigrant, who answered
between misrepresentation of information and information that was merely
misrepresentation in trying to procure a benefit under the INA. Individuals who select "a citizen of the United States" or "a noncitizen national of the United State" for any reason, without being actually an American citizen or national, will very likely to be considered as having made a false claim of U.S. citizenship. Travel Authorization (ESTA): (U) Application of Phrase
type of benefit does not automatically mean that their intentions were misrepresented
(U) INA 212(a)(6)(D) provides that
Review our. determining that an individual had the intent to deceive an officer and that
behalf of an applicant at the time of application for admission to the United
[7], A noncitizenwho falsely claims to be a U.S. national but not a U.S. citizen is not inadmissible for false claim to U.S. material misrepresentation based on a violation of status/inconsistent conduct
(U) An order of the administrative
benefit, such as parole under INA 212(d)(5), including
While many people benefited from this legislation, some mistakenly assumed that they were U.S. citizens. misrepresentation. Possible Violation of Status or Conduct Inconsistent with Status. & N. Dec. 412 (BIA 1973). resolution of the individual's application for a visa, admission to the United
States; or. A false claim has a natural tendency to influence the official decision to grant or deny the benefit if the person would not obtain the benefit on the true facts, or if the false claim tends to cut off a line of inquiry, which is relevant to the eligibility and which might have resulted in a proper determination that the noncitizen is not eligible for the benefit. (U) The text of INA 212(a)(6)(C)(i) refers to both "fraud"
9 FAM 302.9-7(B)(1) (U)
sham marriage in an IR-1 case, cannot be deemed material if the petition
According to the BIA,
(2) (U) If the immigration
See9 FAM 302.9-4(B)(3)(f), Timely Retraction. "reason to believe standard, which requires more than mere
claimed that she was unaware that her brother filed a fourth preference family
cut off a line of inquiry since the line of inquiry was readily available to
You should document these findings in the case notes. U.S. The alien must correct his or her testimony voluntarily before the conclusion of the proceeding at which he or she gave false testimony, and before being exposed by the adjudicator or government official. of financial reimbursement under INA 221(g). In either case (whether as a beneficiary or
applicants behalf does not serve to insulate the applicant from
(iii) (U) Electronic System for
One court decision concerning a false claim to U.S. citizenship made on student loan applications also accused the immigrant of fraud, since he had used a false name, date of birth, and Social Security Number. 2011). INA 212(a)(6)(C)(ii)- Illegal entrants and immigration violators- falsely claiming citizenship, G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, How to Use the USCIS Policy Manual Website (PDF, 2.99 MB). To learn whether you are eligible for cancellation of removal or can take other steps to defend against a charge of falsely claiming to be a U.S. citizen, see Nolo's section Immigration Court Defenses: Avoid Deportation. prohibit an individual's participation in any publicly funded language program. SeeMatter of M-,9 I&N Dec. 118 (PDF)(BIA 1960) (also cited byMatter of R-S-J- (PDF), 22 I&N Dec. 863 (BIA 1999)). (ii) (U) An NIV applicant's
9 FAM 302.9-4(D)(1) (U)
(iv) (U) Undertaking any other
Many foreign-born persons do not realize the risks of pretending to be a U.S. citizen, for example in front of an employer or voting authority. retraction of the misrepresentationwas timely. Participation in Language Programs. (U) You may, in your discretion,
(3) (U) If an individual has a
Many people have also experienced writing first and thinking later. and must remain outside the United States for a continuous period of five years
residence in the United States before/after marrying a U.S. citizen or LPR, you
recommend that DHS grant a waiver under INA 212(d)(3)(A) for an applicant ineligible
The most common false claims to U.S. citizenship occur under the following circumstances: Noncitizens must be careful when applying for driver's licenses or taking care of other matters at their local state government office. Willful material misrepresentations made as part of a
United States. Misrepresentation and Failure to Volunteer Information: (U) Misrepresentation Must Have
h. (U) Rebuttal Burden is on the Applicant:
This is a great simplification of the waiver. under INA 214(b) is not, in itself, a
referred to as "The Rule of Probability.". employee in a Form I-140 petition, who
However, Congress toughened the punishment for this misrepresentation in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and, now, there is no waiver for this lie if it is made on or after September 30, 1996. the AO, describe the form submitted to DHS by the visa applicant and the nature
defenses if you are accused of falsely claiming to be a U.S. citizen. In some cases, the relationship and petition may still be valid, but the individual
email to L/CA): (1) (U) Where the applicant
Thanks to Raymond Reza Bolourtchi. The disclosure of the false claim on the adjustment of status application, therefore, would be part of a different proceeding. Federal Regulations. & N. Dec. 288 (BIA 1975).