On May 1, 2013, the U.S. Department of State distributed Change Transmittal (CT) incorporating certain updates and clarifications into Foreign Affairs Manual (FAM). These changes have been subsequently withdrawn by the Department of State and are not yet effective. We are providing this summary to let our readers know what we can expect if the changes are eventually implemented. This summary will address the updates and clarifications of provisions regulating visa applications or unauthorized entry into the U.S. through fraud or willful misrepresentation.
I. Evidence of Fraud and Willful Misrepresentation (9 FAM 40.63 N4.8)
i) Types of evidence
Following evidence can be used:
1. Information taken from the alien's nonimmigrant visa (NIV) application; and
2. A report by an immigration officer that the alien made such a statement (for example, this information could be found on the DHS Form 1-275, Withdrawal of Application/Consular Notification).
During the visa interview, the immigration officer may question the alien about what the U. S. Customs and Border Protection Officer asked the alien when the alien entered the U.S., what the alien responded, and where he or she previously was admitted to the United States.
HOWEVER, under the new updates in FAM, silence cannot be recognized an act of misrepresentation. Affirmative act is required. Questions and responses received during the interview must be captured in written format as the officers’ case notes and can later be used to determine if the alien made an “act” of misrepresentation.
ii) Burden of proof
Although the alien still bears the burden to establish that his or her true intent was to visit and otherwise maintain nonimmigrant status, the updates to FAM provide a better protection to the aliens by expressly requiring factual findings in determination of ineligibility.
What this means is that the alien will be given the opportunity to rebut the factual findings made by the officer by presentation of evidence to overcome the findings of misrepresentation and fraud.
If the alien presents sufficient evidence to overcome the findings of misrepresentation or fraud, the alien is eligible for admission.
If the presumption is not overcome, immigration officer needs to submit a description of the evidence submitted by the alien in an Advisory Opinion, which must include the following:
1. The finding that an act of misrepresentation occurred and a short description of what the act was;
2. Any evidence of such misrepresentation from the actual visa application; and
3. The finding, along with evidence on how the alien violated his or her nonimmigrant status within 30 days; the statement that the applicant has admitted that he or she misrepresented the purpose of his or her visit on the visa application or to the immigration officer.
II. Inadmissibility under INA (9 FAM 40.63 N11)
The updates to FAM made it clear that, in general, an alien who has falsely claimed U.S. citizenship in order to obtain a U.S. passport, entry into the United States, or any other benefit under any U.S. State or Federal law will be permanently barred from entering the U.S.
III. Inadmissibility Provisions for False Claims to U.S. citizenship not retroactive (9 FAM 40.63 N12)
The inadmissibility provisions for false claims of U.S. citizenship (INA 212(a)(6)(C)(ii)) are not retroactive. It means that the permanent bar applies only to aliens who have made false claims to U.S. citizenship on or after September 30, 1996.
Thus, if the claim was made on or after September 30, 1996, then the alien will have a permanent bar for entry into the U.S., which does not have an immigrant waiver available. This means that even if the alien has a U.S. citizen spouse or family member in the U.S. who would like to petition for the alien to come to the U.S., the alien will not be able to do it under the current law as there is no waiver for false claims to U.S. citizenship.
The FAM update clarified that an alien who made a false claim to U.S. citizenship before September 30, 1996, is not inadmissible under the terms of Falsely Claiming U.S. citizenship provision, INA 212(a)(6)(C)( ii ). They are, however, inadmissible under the Misrepresentation Grounds, INA 212(a)(6)(C)(i), provided such claim was made to procure a visa, other documentation, or admission into the United states or other benefit under INA.
The reason why the timing of entry is significant is because if the claim to U.S. citizenship was made before September 30, 1996, then it will be treated as a mere misrepresentation, for which there is a waiver available allowing the aliens to reunite with their family members in the U.S.. Thus, if the waiver is approved, the alien will be able to enter the U.S. if the waiver is approved.
IV. Scope of INA Inadmissibility (9 FAM 40.63 N13)
The updates to FAM added a new provision, which distinguished “misrepresentation” by silence from misrepresentation by alien’s affirmative act.
“[In] determining whether a false claim to U.S. citizenship has been made, it is necessary to distinguish between misrepresentation of information and information that was omitted by the alien's silence. Silence or the failure to volunteer information does not in itself constitute a misrepresentation for the purpose of INA 212(a)(6)(C)(ii). A misrepresentation about an alien's citizenship requires an affirmative act on the part of the alien.”
V. Knowledge of Falsity (9 FAM 40.63 N14)
There is no intent or willfulness element in the language of INA 212(a)(6)(C)(ii).
However , the individual 's claim to U.S. citizenship must have been false. For it to be false implies not only that the alien was not a citizen, but that the alien knew that he or she was not a citizen. An alien is not inadmissible under INA 212(a)(6)(C)(ii) if the alien mistakenly believed he or she was a U.S. citizen at the time of the representation. Because this provision is an inadmissibility ground, the alien has the burden of proving the mistaken belief; i.e., that he or she did not know the claim was false.
VI. False Claim by Minors (9 FAM 40.63 N15)
An alien who, while under age 18, falsely claimed to be a U.S. citizen is not inadmissible under INA 212(a)(6)(C)(ii) if the alien can show that, at the time of the false claim, he or she lacked the legal capacity to make a false representation of U.S. citizenship.
The test is whether the alien, at the time of the false claim, had the maturity and the judgment to understand the nature and consequences of his or her actions - in the present context, the nature and consequences of a false citizenship claim. This is an individualized inquiry. The alien has the burden of proving lack of legal capacity.
VII. False Claim to Secure Employment (9 FAM 40.63 N16)
It is unlawful to hire an alien who is not authorized to work in the United States. Thus, an alien who makes false claims to U. S. citizenship to secure employment in violation of INA 274A would be inadmissible.
However, it must be determined that the alien specifically made a false claim to U.S. citizenship in order to secure employment. If, for example, an alien claimed to be a U.S. Legal Permanent Resident in order to secure employment, then INA 212(a)(6)(C)(ii) would not apply.
Since the 02/02/09 edition, the USCIS Form I-9 has included separate boxes, to clearly indicate whether an individual claims to be a U.S. citizen or a noncitizen U. S. national. An individual who falsely claimed on USCIS Form I-9 to be a non-citizen U.S. national would not be inadmissible.
VII. Waiver of Exception for INA Inadmissibility (9 FAM 40.63 N17)
i) Waiver Available for Nonimmigrant Visas
An alien who is inadmissible under False Claiming U.S. citizenship provision, INA 212(a)(6)(C)(ii), and is seeking admission as a nonimmigrant maybe eligible for admission under INA 212(d)(3)(A). This means that even if the alien has false claimed citizenship, he/she may be able to enter the U.S. for a temporary nonimmigrant purpose (tourist, student, etc.) if a nonimmigrant waiver application is approved, provided the alien meets the criteria specified in 9 FAM 40.301 N2.
ii) Waiver for Immigrant Visas
*Note: there is not immigrant waiver available for False Claiming U.S. citizenship, INA 212(a)(6)(C)(ii).
An applicant for an immigrant visa who is inadmissible under Misrepresentation/Fraud Grounds (INA 212(a)(6)(C)(i)) may seek a waiver if:
1. The alien is the spouse, son, or daughter of a U.S. citizen or a lawful resident alien; and
2. The Secretary of Homeland Security is satisfied that the refusal of the alien's admission to the United States would result in extreme hardship to the U.S. citizen or lawful resident spouse or parent of such alien or, in the case of a VAWA self-petitioner, the alien demonstrates extreme hardship to the alien or the alien's United states citizen, lawful permanent resident, or qualified alien parent or child.
*Parents of a U.S. citizen or lawful resident alien cannot seek a waiver.
* A waiver for misrepresentation is no longer permitted solely on the basis that the misrepresentation occurred 10 or more years ago.
VIII. Additional Exception from Inadmissibility under Falsely Claiming U.S. citizenship provision INA 212(a)(6)(C)(ii) (9 FAM 40.63 N17)
An alien will not be inadmissible under Falsely Claiming U.S. Citizenship provision if the following applies:
An alien who voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation if:
1. Each parent is or was a U.S. citizen by birth or naturalization;
2. The alien resided permanently in the United States prior to the age of 16; and
3. The alien reasonably believed at the time of such violation that he or she was a U.S. citizen.
Please note that this article only focuses on changes to FAM. For unchanged provisions, please refer to the Manual or contact our office for additional information.