By Robert L. Reeves & Nancy E. Miller
Lying to the government is never a good thing but certain complications result from false document usage that do not occur when one verbally misrepresents. Immigration & Nationality Act section 274C makes it unlawful to satisfy an immigration requirement or obtain an immigration benefit by using someone else’s document, knowingly making, using or filing a document with false information, or filing an application with knowledge that it is false or does not relate to the person on whose behalf it is being submitted. It also penalizes showing a false passport or visa in order to board transportation bound for the United States and failing to present that document to an immigration officer upon arrival at the U.S. port of entry (i.e. using a false passport and then destroying it while en route to the U.S.).The law applies to applicants who use false documents as well as those who knowingly assist them in preparation. It also applies to those who should have known that the document was false but acted in reckless disregard of that knowledge.
“Document” includes all State Department, DHS, and Immigration Court applications for immigrant and non-immigrant visas, asylum, discretionary relief or work authorization. The attestation to false information on an I-9 does not constitute falsely making a document under the statute but the presentation of false documents (e.g. a green card or social security card) to an employer does. Using a false passport is a violation of 274C except if the person did so in order to escape from a country in which the alien has a well-founded fear of persecution. In such case, the alien must tell the DHS Officer upon arriving in the U.S. that he wishes to apply for asylum.
Persons found to have violated section 274C of the INA are subject to civil fines. They may also be permanently barred from the United States.
The DHS begins a 274C proceeding by issuing a Notice of Intent to Fine (NIF) which contains, among other information, the charges and the amount of the fine sought. The NIF also advises the alien of the right to counsel, the privilege against self-incrimination, the right to a hearing, if requested within 60 days, and the consequences of not requesting a hearing. The NIF must be either personally served or delivered by certified or registered mail. If the alien requests a hearing, there are various procedures which can be used to obtain information about the evidence that the government intends to use. Appeals against the decision can be taken in the U.S. Circuit Court.
According to a USCIS policy memo, DHS should not institute 274C proceedings while an application for adjustment of status and an application for waiver of misrepresentation are pending. However, the Board of Immigration Appeals has held that fraud waivers are unavailable to waive the ground of inadmissibility resulting from a 274C final order. The result of that holding is that an alien who is the subject of a final order for violating 274C is inadmissible to the U.S.
A limited waiver exists for two groups of people. The first is for green card holders who temporarily left the U.S. voluntarily, are not under deportation orders and who are otherwise admissible. The second is for aliens seeking admission or adjustment of status under certain family-based petitions. In both cases, the alien must not have a previous fine under 274C and the fraud must have been committed “solely to assist, aid or support the alien’s spouse or child (and not another individual)”. That relationship must have existed at the time of the use of the document.
Aliens with final 274C orders still qualify for withholding of removal or deferral of removal under the Convention Against Torture. They may also qualify for asylum. They may also qualify for cancellation of removal for lawful permanent residents or cancellation of removal for non-permanent residents.
The wisest course of action is to not use fraudulent documents. However, that advise may come too late for many people. Receipt of an NIF is a very serious matter. There are time deadlines for responding to the NIF. Failure to respond within the proper time frame could result in a final order which could then result in the alien being placed in removal proceedings and deported from the United States.