TWENTY years ago, Abel, who was 20 years old, entered the United States using his cousin’s passport that had a United States visa. They looked alike and were the same age. He overstayed his tourist stay but went home after one year. Ten years later, Abel re-entered the US on a student visa, now using his real name. He later married his classmate, a US citizen. They submitted a spouse petition and Abel’s adjustment application for permanent residence. During the interview, and thinking that it happened so long ago, Abel disclosed having entered the US using his cousin’s passport and identity.
Five years ago, Marcela entered the US on a valid one-year tourist visa and was given three months of authorized stay. It was before Thanksgiving at the start of the holiday season, and her aunt told her she can get her a part-time job at the big discount store in New York where she (aunt) worked. Marcela filled out an application form and upon her aunt’s direction put “US” in the box asking for her citizenship. After the holidays, the store decided to hire Marcela permanently and was again asked to fill up some forms – this time, the immigration form I-9. Marcela also started dating a handsome co-worker and within the year, they got married. The spouse petition filed by her husband was approved, but Marcela’s adjustment application was denied. USCIS investigation revealed that in the I-9 (the second form Marcela filled-up), Marcela checked the box for “US Citizen or National.”
Abel’s misrepresentation twenty years ago constituted visa fraud. Marcela’s misrepresentation is more serious – a false claim to United States citizenship.
Visa fraud. A US visa is a document, obtained at any US embassy or consulate, granting a non-US traveler permission to apply for admission into the US at a port of entry. A US visa authorizes the border official to grant the alien holder entry into the US, but does not guarantee entry into the US.
An alien who, by fraud or willfully misrepresenting a material fact, seeks to procure or has sought to procure of has procured a visa, other documentation or entry into the US or other benefit provided under the Immigration and Nationality Act (INA), is inadmissible. This “misrepresentation of material fact” is visa fraud. Other forms or types of visa fraud include: the sale or transfer of otherwise legitimate visas, misrepresentation of reasons for traveling, or forgery or alteration of a visa. Common visa frauds are lying in visa applications, or in answering questions at the port of entry; using someone’s identity or name; presenting a false green card or claiming to be a green card holder at the port of entry; denying that one has children and omitting their names in applications for immigrant or non-immigrant visas; etc.
A misrepresentation is material if disclosure of the truth would have led to an investigation that might have uncovered facts warranting denial of a visa. “Material misrepresentation” is determined on a case by case basis, and the issue of materiality relates to the person’s state of mind. In certain cases, as in Abel’s case, a waiver of inadmissibility is available as a relief to cure his visa fraud committed twenty years ago.
False claim to United States Citizenship. Falsely claiming US citizenship is where a person falsely represents or has falsely represented himself/herself to be a US citizen to obtain a benefit under the Immigration Act or any other federal or state law. Examples of falsely claiming US citizenship include: representing to an employer that one is authorized to work in the US by stating that one is a United States citizen; marking off an I-9 Employment Form that states “US Citizen” after 2009 (I-9 forms prior to August 7, 2009 states “US Citizen or National and there is case law holding that checking this box is not necessarily a false claim to US citizenship); and replying “US” to a question regarding citizenship or country – to a policeman, or immigration officer at the border.
A false claim to United States citizenship is a ground for inadmissibility, and is a permanent bar to admission to the US, under present laws. This means that an alien found to have made a false claim to US citizenship is forever barred from immigrating to the US. What’s more – it is also a ground for deportability. Unlike visa frauds, here is NO waiver available for false claims to citizenship. Alien applicants, as well as green card holders/permanent residents, should be very careful in their representations about their citizenship in any forms, including private employment applications.
***
Atty. Aurora Vega is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding its regular free legal clinic at the Max’s Restaurant in Vallejo, California on September 27, 2010. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; [email protected].
