As discussed in a previous blog, an otherwise eligible immigrant’s application to become a Lawful Permanent Resident (LPR) can be denied by U.S. Citizenship and Immigration Services for several reasons. Under the Immigration and Nationality Act § 212, there are multiple grounds for inadmissibility, including fraud and willful misrepresentation. Even after an individual acquires LPR status, the grounds of inadmissibility can be a basis for refusing entrance into the U.S. after traveling abroad. If an applicant is denied a green card, or an individual who already holds one is later determined inadmissible, there are waivers which, if granted, allow for LPR status despite the inadmissibility ground.
This ground of inadmissibility applies to individuals who seek benefits under INA by committing fraud, or willfully present false information to the government. This includes falsely claiming U.S. citizenship before September 30, 1996. Although fraud and misrepresentation are similar and can typically be based in the same acts, fraud has two additional elements. Therefore, an individual may be deemed inadmissible based on misrepresentation, but not on fraud.
As for willful misrepresentation, the individual must have purposely misrepresented a material fact. Under INA Chapter 3, “willfully” is defined as “knowingly,” based on the surrounding circumstances at the time. Furthermore, the fact willfully misrepresented must be material. A material fact is one which meets the U.S. Supreme Court’s test. Chapter 3 of the INA reads:
A concealment or a misrepresentation is material if it has a natural tendency to influence or was capable of influencing the decisions of the decision-making body. The misrepresentation is only material if it led to the person gaining some advantage or benefit to which he or she may not have been entitled under the true facts.
In addition to these requirements, the willful misrepresentation must be made to a U.S. government official, typically a consular or immigration officer. One important clarification to note is that procurement of the benefit is not necessary; only seeking a benefit is required.
Fraud, on the other hand, involves a situation where an individual knowingly makes a false representation of a material fact, with the intent to deceive the U.S. official. The elements of fraud are all the same as willful misrepresentation, except for the intent to deceive the official, and that the official believed the material representation, and therefore granted the benefit.
As with other inadmissibility grounds, an individual may be eligible for a waiver. Even if determined to have committed willful misrepresentation or fraud, a waiver may be granted if two requirements are met.
An element of the waiver requires first demonstrating that a qualifying relative would suffer an extreme hardship. A QR is a parent or spouse who is an LPR or USC. The term “extreme hardship” is a very high standard and usually means more than the normal emotional and financial hardship associated with separation. Second, the waiver may be approved or denied as a master of discretion.
If you want to apply for a green card, or have other immigration issues, the assistance of an experienced immigration attorney can help protect your legal rights. If you are seeking help on immigration matters or would like to apply for a green card, call the experienced attorneys at Bretz & Coven, LLP at (212) 267-2555.