Defenses Against Allegations of Fraud or Material Misrepresentation under INA §212(a)(6)(c)

Timely Retraction

One possible to defense to a charge of inadmissibility under INA §212(a)(6)(c) is that the ‘fraud’ or ‘material misrepresentation’ was timely retracted.  The effect of such a retraction is to eliminate the ‘fraud’ or ‘material misrepresentation’. 

So what qualifies as a timely retraction?  In order for the retraction to be effective, it has to be:

  1. Voluntarily made; and
  2. Timely (i.e. without delay or at the first opportunity).

In general, a retraction should be made at the first opportunity. Thus, if the person appeared for an interview, the retraction must be made during the interview. If the misrepresentation has been noted in a "mail-order" application, the applicant must be called in for an interview and the retraction must be made during the course thereof.  Generally speaking, retractions have not been considered timely if they were made after being accused or confronted with the falsity of the oral testimony/documentary evidence being offered. 

Statutory Requirements for “Fraud” or “Material Misrepresentation” Not Met

In order to be found inadmissible under INA §212(a)(6)(C)(i), it must be determined that:

  1. That a misrepresentation was made;
  2. The misrepresentation was willful;
  3. The fact misrepresented was material; and
  4. The fraud or misrepresentation was used to procure a visa, other documentation, admission into the United States, or any other benefitprovided under the Immigration and Nationality Act.

(1) Was a Misrepresentation Made?

A misrepresentation is an assertion or manifestation not in accordance with the facts. Misrepresentation requires an affirmative act taken by the foreign national (thus, silence or the failure to volunteer information does not in itself constitute a misrepresentation.)   A  misrepresentation can be made in a variety of ways, including in an oral interview, a written application, or by submitting evidence containing false information.

(2) Was the Misrepresentation Wilfull?

The term “willfully” as used in INA § 212(a)(6)(C) has been interpreted to mean knowingly and intentionally, as distinguished from accidently, inadvertently, or in an honest belief that the facts are otherwise. Thus, in order to find the element of willfulness, it must be determined that the foreign national applicant was fully aware of the nature of the information sought and knowingly, intentionally, and deliberately made an untrue statement.  

(3) Was the Misrepresentation Material?

The Attorney General has defined “materiality” as follows: “A misrepresentation made in connection with an application for a visa or other documents, or with entry into the United States, is material if either:

(a) the foreign national is inadmissible on the true facts; or

(b) the misrepresentation tends to shut off a line of inquiry which is relevant to the foreign national’s eligibility and which might well have resulted in a proper determination that he or she be inadmissible.”

(4) Fraud/Misrepresentation was used to or attempted to be used to procure a visa, other documentation, admission into the United States, or any other benefitprovided under the Immigration and Nationality Act. 

(a) Other Documentation

“Other Documentation” mentioned in this context refers to refers to documents required at the time of a foreign national’s application for admission, including visas. This includes such documents as:

(i) Reentry permits;

(ii) Border crossing identification cards;

(iii) U.S. Coast Guard identity cards; and

(iv) U.S. passports.

(b) Other Benefit

"Other Benefit" refers to any immigration benefit or entitlement provided for by the Immigration and Nationality Act (INA) and may include (but are not limited to):

(i) Requests for extension of stay, change of NIV status, permission to re-enter, waiver of INA 212(e) requirement, alien employment certification, advance authorization to re-enter, voluntary departure, adjustment of status, stay of deportation; and

(ii) Application for Forms I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status for Academic and Language Students, and DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status. 

Put simply, if you are a foreign national who has been charged with this ground of inadmissibility, and would still like to enter the U.S. in the future, whether it be for non-immigrant or immigrant purposes, it may be worthwhile to have our firm analyze the facts surrounding the charge of inadmissibility to determine whether the charge has been properly lodged against you.   If there is a legal argument that can be made to challenge the finding, it may be worthwhile to explore this option – compared to seeking non-immigrant waivers for the rest of your life and/or qualifying for an immigrant waiver (which require a qualifying relative). 

If you would like to schedule a consultation with our office to discuss your charge of inadmissibility based on fraud/misrepresentation, please contact us.

Sources: 

Foreign Affairs Manual - 9 FAM 40.63 Notes

USCIS Adjudicator’s Field Manual - USCIS AFM 40.6.2(c) - Section 212(a)(6)(C) of the Act: Misrepresentation and False Claim to U.S. Citizenship