Obtaining a visitor’s visa at many United States (U.S.) consulates may be difficult and a high percentage of applicants are denied. Once denied, it becomes nearly impossible to obtain one. But many individuals are determined to find a better life in the U.S. and resort to using an assumed name. After one or more attempts to convince a consular officer, some visa applicants applies for the visa under a different name usually on the advise of a travel agency. Sometimes applicants are successful in obtaining a visa by using a different name with false supporting documents. While these individuals may have been successful in entering the U.S., there are consequences to a fraudulent entry.
According to section 212(a)(6)(c) of Immigration and Naturalization Act (INA), 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 immigration benefits is inadmissible unless a waiver is granted. A finding of fraud under section 212(a)(6)(c) of the INA results in a lifetime bar unless granted a waiver.
This ground of inadmissibility requires that the fraud or willful misrepresentation of a material fact be made to the U.S. government by either an oral or a written statement. Using a different name to avoid being questioned about previously-denied visa application constitutes fraud.
Even though the principal elements of fraud and willful misrepresentation are slightly different, the penalty for both is the same. A charge of fraud will be sustained if the alien knew of the falsity of the statement and intended to deceive the United States government official.
Willful misrepresentation with knowledge of the falsity of a representation is sufficient to establish “willfulness,” without regard to motivation. Consequently, a specific intent to deceive is not necessary in order to satisfy the language of the statute. However, an accidental statement or misstatement due to an honest mistake is not considered to be a “willful” misrepresentation.
Materiality is another important element to establish a charge of inadmissibility under INA section 212(a)(6)(C). A determination of whether a misrepresentation is material requires a close analysis. The Attorney General considers a misrepresentation to be material if the alien is inadmissible on the true facts. A misrepresentation that tends to shut off a line of inquiry relevant to the visa that might have resulted in the alien’s inadmissibility is considered to be material. A misrepresentation that does not tend to influence the government’s decision should not be considered “material.” Also, the misrepresentation must be made with the subjective intent of obtaining immigration benefits, not for other reasons, such as fear or embarrassment. Lying about one’s identity is a material misrepresentation.
There is a remedy for many who enter under an assumed name. INA section 212(i) provides a waiver for this type of fraud or misrepresentation. Under this section the alien must prove that the denial of the green card would result in extreme hardship to their spouse or parent who is a U.S. citizen or lawful permanent resident.
Elements to establish “extreme hardship” depend upon the facts of each case. Some of the factors relevant to the analysis of extreme hardship include: family ties in the U.S., length of residence in the U.S., health of the U.S. citizen spouse or parent, political and economical conditions in the alien’s home country, and the financial impact of departure from the U.S.
A very high percentage of fraud waiver applications are denied because the applicant failed to set forth sufficient evidence to support a finding of extreme hardship. A fraud waiver should be prepared by a highly competent and experienced immigration lawyer.
Author's Note: The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the individual legal research and personalized representation that is essential to every case.
Atty. Reeves has represented clients in numerous landmark immigration cases that have set new policies regarding INS action and immigrants' rights. His many successes have been published in Interpreter Releases, Immigration Briefings and AILA Monthly which are nationally recognized immigration periodicals widely read by immigration lawyers, State Department and immigration officials. His cases are also cited in test books as a guide to other immigration practitioners.
His offices are located in Pasadena, San Francisco, Beijing and Makati City.