By Attorney Robert L. Reeves
Obtaining a visitor’s visa at some United States (U.S.) consulates is 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 for this misrepresentation.
The Immigration and Nationality Act (INA), provides any alien who by fraud or by 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 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 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.
Materiality is important element to establish a charge of inadmissibility under the INA. 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. The INA 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 needs to be prepared by a competent and experienced immigration lawyers.