VISA FRAUD & WAIVERS

By Attorneys Robert L. Reeves

Obtaining a visa at many U.S. consulates can be very difficult especially given the high percentage of visa denials. A denial makes it more difficult to obtain a future visa. Many applicants who have been denied, or fear denial, resort to using falsified information, such as an assumed name or falsifying marital status in order to obtain a visa to the U.S. They usually submit false documents provided by or based on the advice and assistance of a travel agency. Some of these applicants successfully obtain a visa and travel to the U.S. While these individuals may have entered the U.S., they face serious consequences because of the fraudulent entry.

Section 212(a)(6)(c) of the Immigration and Naturalization Act (INA) provides, 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. A finding of fraud under section 212(a)(6)(c) of the INA results in a lifetime bar for future immigration benefits such as a green card and the ability to petition family unless granted a waiver.

This fraud or willful misrepresentation of a material fact must be made to the U.S. government by either an oral or a written statement. Using a different name to avoid being questioned about a previously-denied visa application is one example.

Even though the principal elements of fraud and willful misrepresentation are slightly different, the lifetime ban 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. But, an accidental statement or misstatement due to an honest mistake is not considered to be a “willful” misrepresentation. Using a false name is one such example.

Materiality is another important element to trigger the bar. A determination of whether a misrepresentation is material requires a close analysis. A misrepresentation is material if the alien was inadmissible based 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. For example, answering, “No,” to the question, “Have you ever been denied a visa before?” is a material misrepresentation if one has been denied.

A misrepresentation that does not tend to influence the government’s decision is not 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. For example, an alien telling a consular officer that she has no children when in reality she has one child born out of wedlock may not be relevant to whether she qualifies for a visa.

There is a waiver to the lifetime ban for many committing fraud such as entering under an assumed name. In order to obtain a waiver the alien must prove that the denial of the green card would result in extreme hardship to a qualifying relative. Qualifying relatives are defined as either a spouse or a parent who is either a U.S. citizen or a permanent resident. U.S. citizen or permanent resident children do not count.

In order to be successful in establishing “extreme hardship” to a qualifying relative, the facts and circumstances of each case must be thoroughly examined. A comprehensive brief must be prepared with supporting documentation showing in detail each of the hardships and how the totality of these hardships will impact the qualifying relative. 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., physical and mental health of the U.S. citizen spouse or parent, political and economical conditions in the alien’s home country, and the financial impact if the alien would be required to depart the U.S.

A high percentage of fraud waiver applications are denied because the applicant fails to set forth in a meaningful and comprehensive way the evidence to support a finding of extreme hardship. However, if done properly, there is a high probability the waiver will be granted. Once the fraud waiver is obtained, the alien is eligible to adjust to permanent resident status or to naturalize and petition his family.