About a year ago, we discussed inadmissibility under INA 212(a)(6)(C)(i), which bars an alien from receiving a visa or admission into the U.S. if this alien has previously obtained or attempted to obtain a visa, other documentation, admission or other benefit under the Immigration and Nationality Act (INA), by means of fraud or by willfully misrepresenting a material fact.
Since a misrepresentation only renders a person inadmissible under INA 212(a)(6)(C)(i) if it is material, we briefly discussed the test for determining whether a misrepresentation is material. In this article, we will further examine this test for materiality.
The new USCIS Policy Manual sections on fraud and willful misrepresentation define material misrepresentation as a false representation concerning a fact that is relevant to a person’s eligibility for immigration benefit. The Policy Manual follows the test developed by the Supreme Court in Kungys v. United States, 485 U.S. 759 (1988), which states that a concealment or a misrepresentation is material if it has a natural tendency to influence or was capable of influencing the decisions of the decision-making body. A misrepresentation is material only if a person gained some advantage or benefit to which he may not have been entitled under the true facts.
The Policy Manual also incorporates the Attorney General’s definition of materiality in Matter of S- and B-C-, 9 I&N Dec. 436 (A.G. 1961), which held that a misrepresentation made in connection with an application for a visa, admission, other documents, or other benefits is material if either: (1) the alien is inadmissible on the true facts; or (2) the misrepresentation tends to shut off a line of inquiry which is relevant to the alien’s eligibility and which might well have resulted in a proper determination of inadmissibility. The first part of this definition materiality is known as the independent or objective grounds of inadmissibility. The second part is known as the rule of probability.
Finally, the Policy Manual concedes that a harmless or non-material misrepresentation does not make an alien inadmissible even though the alien has lied. However, USCIS also warns that a harmless misrepresentation may still be taken into account when considering whether an immigration benefit should be granted as a matter of discretion. There are applications, such as adjustment of status, where the grant of benefit is discretionary. Thus, an adjustment applicant who made a harmless misrepresentation would not be inadmissible under INA 212(a)(6)(C)(i) but his application could still be denied after weighing various factors which include the harmless misrepresentation.
Another useful policy guide is the Department of State’s (DOS) Foreign Affairs Manual, which has sections that explain how to apply INA 212(a)(6)(C)(i) and provide hypothetical examples that illustrate the principles involved.
A common form of misrepresentation involves previous visa applications. DOS states that when a nonimmigrant visa (NIV) applicant misrepresents the fact that he was previously refused an NIV, that, in itself, is not a material misrepresentation because it would be safe to assume that the previous NIV refusal was due to the applicant’s failure to meet visa requirements at that time. Since circumstances change, a new NIV application must be decided based on the applicant’s current situation. However, if the misrepresentation conceals not only the fact of the previous refusal, but also objective information not otherwise known or available to a consular officer, then there would be basis for finding that the absence of such facts tended to cut off a line of inquiry and the misrepresentation was material.
For example, X applied for a B-2 visitor’s visa in 2010. A consular officer denied this application because X failed to show ties to his home country. In 2014, he applied again for a B-2 visa but he did not disclose in this application that he was denied a visa in 2010. If this misrepresentation concealed only the fact of previous denial, a consular officer should not find X inadmissible under INA 212(a)(6)(C)(i). However, if X did not disclose his 2010 visa denial because in that previous application he used a false passport under a different name, then a consular officer might find this misrepresentation material because it concealed information not otherwise available to the officer and it tended to cut off a line of inquiry relevant to visa eligibility.
DOS also holds that if an alien makes a misrepresentation to establish an advantageous immigrant visa status and it was discovered that the alien was, in fact, entitled to another equally advantageous status, the misrepresentation would not be material.
For example, Y is a married son of a U.S. citizen (USC). He misrepresents his marital status as unmarried to qualify under the first preference family category because the visa numbers for this category are current. However, if the visa numbers for the third preference for married sons of USCs are also current, then Y’s misrepresentation is not material because he did not gain any advantage. The misrepresentation would be material if the third preference was backlogged and the first preference was current.
