Misrepresentation and Fraud : Long-Term Consequences
[a report from Murthy Immigration Services, Pvt. Ltd. in Chennai, India]
Posted Feb 16, 2007
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In the recent past, Murthy Immigration Services, Pvt. Ltd. (MISPL) has been contacted by a number of applicants who have been found ineligible for a U.S. visa (such as an H1B or L-1) by the U.S. Consulate, due to fraud or misrepresentation. The section of law that covers this is Immigration and Nationality Act (INA) section 212(a)(6)(C)(i). Whether a violation exists is determined by the consular officer, who makes the finding that a person is inadmissible based on fraud or willful misrepresentation in connection with obtaining a U.S. visa, admission to the United States, or other immigration benefit.
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Implications of a Fraud Finding
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INA section 212(a)(6)(c)(i) essentially covers fraud related to efforts to obtain any immigration benefit. The result of a fraud finding is that the individual is "inadmissible" (not allowed to enter the U.S. or adjust status to permanent residence). Specifically, the section states the consequence of fraud or misrepresentation as follows: “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 benefit provided under this Act is inadmissible.”
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This section imposes a permanent inadmissibility on the visa applicant so that s/he may never be allowed to enter the United States. Though waiver of inadmissibility is available under limited circumstances, it is important that each applicant understands the serious consequences of misrepresentation and is truthful on the application.
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Common Examples of Misrepresentation
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F-1 / J-1 Visa Applicants MISLP has come across several students who have been refused F-1 or J-1 visas under INA section 212(a)(6)(c)(i) for producing false financial documentation. There are several consultants who provide financial documentation for a fee. The aspiring students who use this documentation are often totally unaware of the serious implications of producing false documents. Such applicants not only end their probability of obtaining a quality U.S. education and the degree that they seek, but in most cases also practically seal the doors on entering the U.S. by their own actions.
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B-1 / B-2 Visa Applicants The other most common misrepresentation is made by Business (B-1) / Tourist (B-2) as well as Student (F-1) visa applicants. Under the assumption that the presence of a brother, sister, parent, fiancée, and/or spouse living in the United States will cause the consulate officer to refuse the visa application, applicants mark “No” in responses to the relevant question on the DS-156 / DS-158, with regard to immediate relatives in the United States. This is fraud as it amounts to a material misrepresentation of facts in most cases, depending upon the class of visa for which one is applying. Such applicants often end up with a refusal under INA section 212(a)(6)(c)(i).
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H1B Visa Applicants The other common scenario of material misrepresentation seen by us at MISLP is committed by H1B visa aspirants who submit false experience or educational certificates in the attempt to qualify for the H1B visa. The irony is that, in many of the cases where false experience letters are submitted, the H1B visa applicants may not even require prior work experience to be eligible for the H1B visa. They often would have qualified simply based upon possessing the appropriate educational degree.
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False Evidence often Results in Administrative Review
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The common explanation given by such erring applicants is that they were misguided by consultants, employers, or friends. It must be understood that, irrespective of who misguided them, when applicants are responsible for committing the fraud or willful misrepresentation of material facts. They, and not these abettors, will have to face the consequences. Each individual is responsible for the documents presented and the forms signed in his or her case. The Consulate has several means to verify the genuineness of such documents and often issues administrative reviews to verify the credibility of suspicious documentation.
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Availability of Waiver
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In limited circumstances, waivers are available for both nonimmigrant and immigrant visas. This article should serve as a warning to MurthyDotCom and MurthyBulletin readers, so that they do not commit fraud and create the need for waivers. The requirements for the immigrant or nonimmigrant waiver are outside the scope of this article, but nonimmigrant waivers were the subject of our 2001 article, Waivers for Nonimmigrant Visa Applicants, available on MurthyDotCom. Anyone who has already been found to be in violation of INA section 212(a)(6)(c)(i) should consult with a qualified immigration attorney to determine what options, if any, are available. It should be noted that the waivers are highly discretionary and difficult to obtain.
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False Documentation Already Submitted
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An applicant who uses fraudulent means toward the short-term goal of getting into the United States often seals his/her own fate and loses the chance for the future that was envisioned. The inadmissibility, as has been stated, is permanent. Even if one has an otherwise valid case in the future, the inadmissibility will haunt them. The misrepresentation becomes aggravated if the individual does not retract the fraudulent document or misrepresented facts at the first opportunity. It often becomes even more difficult to obtain waivers in such cases. In fact, the safest approach in most instances is to promptly withdraw the visa application or clear the record with the consular officer, either during the visa interview or before a final fraud finding. One must consult with an experienced lawyer on the implications and risks, should this situation arise.
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Conclusion
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Even if full disclosure of the truth results in denial of the visa, at least the possibility of later entering the U.S. remains open, whether in a different classification or by the subsequent presentation of proof of eligibility for the requested classification. Though waivers are available in limited circumstances, the inadmissibility for misrepresentation is difficult to overcome and often results in a permanent inability to enter the United States. MurthyDotCom and MurthyBulletin readers are strongly encouraged to be truthful when applying for visas or any other immigration benefits. If there are any questions as to the proper way to answer a particular question, it is best to consult with a qualified U.S. immigration attorney before making any statements.
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