Department of State Updates Guidance on Material Misrepresentation Findings

Earlier this year, the U.S. Department of State (DOS) updated the guidance for how consular officers should determine whether a misrepresentation made by a foreign national is to be considered “material.” Under the Immigration and Nationality Act, if a foreign national makes a misrepresentation regarding a material fact in connection with a request for an immigration benefit, that individual is inadmissible to the United States. If the misrepresented fact is not material, the misrepresentation would not automatically make the individual inadmissible.

FAM Update Regarding “True Facts”

This updated guidance, which is found in the Foreign Affairs Manual (FAM), specifically addresses misrepresentations of “true facts” – that is, misrepresentations made to conceal the fact that an individual does not meet the statutory requirement for a visa. The FAM update cites as an example the statutory requirement of providing a record of birth to qualify for an immigrant visa. If an individual furnishes a fraudulent birth certificate in order to get an immigrant visa, then the true facts are that the applicant does not meet the legal requirement for the visa. Therefore, the misrepresentation would be considered material.

Conclusion

A foreign national applying for an immigration benefit should ensure the information submitted is accurate, and that any documents provided are authentic. In the immigration context, a material misrepresentation finding automatically results in a permanent bar to the United States, with limited options for a waiver.

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