The big mistake of lying to immigration to get a visa or green card

A finding of either fraud or misrepresentation makes an alien inadmissible under INA 212 (a)(6)(C) (i). Most cases involving inadmissibility under this ground involve misrepresentation and not fraud because fraud is often more difficult to prove. The penalty for fraud or material misrepresentation is lifetime ban from the United States unless the foreign national can get a hardship waiver. Additionally a foreign national who makes fraudulent statements or use fraudulent documents (e.g. using a passport and visa issued to a family member) to get admission into the United States may be subject to criminal prosecution and imprisonment. The foreign national may also be subject to a civil document fraud order by an administrative law judge for making or using false documents, or using documents issued to other persons.

Lying to Immigration

Under Section 212 (a)(6)(C)(i) of the Immigration and Nationality Act , a foreign national is inadmissible to the United States if he or she willfully or fraudulently misrepresents a material fact to a consular officer or DHS official (e.g. in answer to an immigration interview question) in attempting to, or in obtaining a visa, or documentation, admission into the United States or other benefit under the Immigration and Nationality Act.

Visa or Immigration Fraud

A foreign national makes a fraudulent statement when he makes a false representation of a material fact with knowledge that the statement is false and with the “intent to deceive” a consular or immigration officer. Fraud also requires that the immigration or consular officer believed the misrepresentation and acted upon it. See Matter of G, 7 I & N 161, 1956.

Material Misrepresentation

Material misrepresentation on the other hand merely requires a willful misrepresentation. A statement is material if the U.S. official might have found the foreign national inadmissible if the official knew the truth. Unlike fraud, misrepresentation does not need a finding of “intent to deceive” the U.S. official or that the official believed or acted upon the misrepresentation. See Matter of S and B-C, 9 I & N 436, 448-449 (A.G. 1961) and Matter of Kai Hing Hui, 15 I & N 288 (1975).  Therefore a person may be found to be inadmissible under INA 212 (a)(6)(C) (i) even though his conduct does not rise to a finding of fraud.

Penalty

A finding of either fraud or misrepresentation makes an alien inadmissible under INA 212 (a)(6)(C) (i). Most cases involving inadmissibility under this ground involve misrepresentation and not fraud because fraud is often more difficult to prove. The penalty for fraud or material misrepresentation is lifetime ban from the United States unless the foreign national can get a hardship waiver. Additionally a foreign national who makes fraudulent statements or use fraudulent documents (e.g. using a passport and visa issued to a family member) to get admission into the United States may be subject to criminal prosecution and imprisonment. The foreign national may also be subject to a civil document fraud order by an administrative law judge for making or using false documents, or using documents issued to other persons. A foreign national using fraud or misrepresentation to enter or seek unlawful entry into the United States may be fined or imprisoned or fined and imprisoned under 8 U.S.C. 1325(a).

Immigration Fraud and Misrepresentation

Misrepresentation defined

A misrepresentation is a statement or assertion which does not match the facts. A misrepresentation can be oral, in written application or in submitting evidence which has false information (e.g. presenting false immigration documents to border patrol to gain admission into the United States). Misrepresentation requires some affirmative action on the part of the foreign national. Silence or a failure to volunteer information does not necessarily constitute a misrepresentation.

A misrepresentation may also be found where a foreign national conduct is inconsistent with representation made at the time of a visa application or admission (e.g. a person admitted in B2 status who applies for adjustment of status within 3 weeks of admission as a tourist)

For an alien to be inadmissible under the Immigration and Nationality Act on the grounds of misrepresentation he must have

  1. Made a misrepresentation
  2. The misrepresentation must have been willful
  3. The fact misrepresented must have been material – the foreign national might have been found inadmissible if the truth facts were known to the U.S. official, and
  4. The alien used fraud or misrepresentation  in attempting to, or in obtaining a visa, or documentation, admission into the United States or other benefit under the Immigration and Nationality Act.

Misrepresentation by an attorney or other agent – The “It was not me” defense

If foreign national can be charged with a misrepresentation even if an attorney or (e.g. a notario) made the misrepresentation in a visa or immigration application., provided that the foreign national was aware of the action. Oral statements made on behalf of the applicant similarly do not shield him or her from misrepresentation, if he or she was aware of the misrepresentation.

Timely retraction and hardship waivers

A timely retraction of a fraudulent or willful misrepresentation is a defense to this ground of inadmissibility if the retraction is voluntary and without delay.

A narrow waiver may also be available from the Attorney General under INA 212 (i) to an immigrant who is the spouse, son or daughter of United States Citizens or a lawful permanent resident, if the applicant can prove that the refusal of admission to the United States would result in extreme hardship to the spouse or parent.

In the case of a VAWA self-petitioner charged with inadmissibility under INA 212 (a)(6)(C),  the waiver provision has broader. The self-petitioner must present evidence to prove that refusal of admission to the United States would cause extreme hardship to him or her personally, or the his or her United States citizen or lawful permanent resident parent or child. One of the most important thing to know about hardship waivers is that they are discretionary and are not obtainable as a matter of right.

If you have any questions please speak to a qualified immigration attorney. Feel free to email me at info@goodinlaw.net. I also urge you to subscribe to this blog or the RSS feed so you can see when new articles are posted.

 

 

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K1 Visa Process – For K1 Visa Applicants

Once the USCIS approves the k1 visa petition it will then send it to the National Visa Center for forwarding to the proper consular post. Once the consulate receives the petition it will issue a letter to you stating that the consulate is ready to begin processing your k 1 visa application.

The Consulate will send you a set of document often called Packet 3 in order it to process your case. Sometimes the Consulate will not include the above forms. Rather it will send a letter with the applicant’s case number and a visa sheet with step by step instructions on how to go ahead. If this is the case the applicant can download the forms from the consulate website and return them to the Consulate.

A k-1 visa is a single entry visa that permits admission of the fiancé (e) of a U.S. citizen, as a non-immigrant for 90 days to marry that U.S. Citizen and apply for adjustment of status (a green card).  The minor unmarried children of the k1 beneficiary who go with or follow to join her are typically granted K2 visa status.

Wedding Bands

 

Approved Petition

Your K-1 process begins when your U.S. Citizen  fiancé(e) files Form I-129F on your behalf with the United States Citizenship and Immigration Service (USCIS) district office responsible for where he or she lives or intends to live (if U.S. citizen is abroad).

Notice of Action

Once your fiancé (e) has received a notice of action you should begin assembling the relevant documents to support your application as some documents may take much time to get.

Documentary Preparation

You should assemble the following documents in support of your application as some may take much time to get.

  1. Passport(s) valid for travel to the United States – for you and any dependent children accompanying or following to join you.
  2. Birth Certificate(s) – Obtain the original, certified copy of the birth record, or secondary evidence for each family member (yourself and all minor unmarried children) even if the children are not immigrating with you.
  3. Evidence of the end of earlier marriages – final divorce decree, annulment or death certificate.
  4. Police Certificates for each applicant aged 16 year and over. Obtain police certificates from the police authority where you live or any place where you have lived for 6 months since you have reached 16 years old.
  5. Proof of relationship to the petitioner – gather your letters, dated photographs showing you together as a couple, affidavits from people with person knowledge of the relationship, e-mails, telephone bills, documentation of wedding plans and invitations. Airline tickets, visa stamps and receipt for the engagement ring may also be used

You should give accompanying certified English translations of all documents not in English, or in the official language of the country in which application for a visa is made. The translation must include a statement signed by the translator that states that the:

(i)                 Translation is correct, and

(ii)               Translator is competent to translate.

Packet 3

Once the USCIS approves the petition it will then send it to the National Visa Center for forwarding to the proper consular post. Once the consulate receives the petition it will issue a letter to you stating that the consulate is ready to begin processing your k 1 visa application.

The Consulate will send you a set of document often called Packet 3 in order it to process your case. Sometimes the Consulate will not include the above forms. Rather it will send a letter with the applicant’s case number and a visa sheet with step by step instructions on how to go ahead. If this is the case the applicant can download the forms from the consulate website and return them to the Consulate. In Packet 3 should find:

  • K1 Visa Checklist Form IV-15
  • Form DS-230 Part I (Biographic Data) – You must complete and return this form immediately for the Consulate to process your case. Each person applying for a visa must complete biographic data Form DS-230- Part I, regardless of age. You may photocopy the form you received insufficient copies for each family member.
  • Form DS-156 in duplicate (non-immigrant visa application). If your unmarried children under 21 are accompanying you, two copies of Each Child must complete Form DS-156. Please do not sign this form. You must sign it in front of the consular officer on the day of your formal interview.
  • Form DS-156K in duplicate (Non-immigrant Fiancé (e) Visa Application). Please do not sign this form. You must sign it in front of the consular officer on the day of your formal interview.
  • Form DS-157 in duplicate (Supplemental Non-Immigrant Visa Application) – only required for men aged 16-45
  • Information sheet DS-2000 (Lists evidence which you or your fiancé (e) may present to meet the public charge provision of the law). Your fiancé (e) may file Form I-134 with supporting documentation.
  • Sometimes the Consulate will send information about scheduling a Medical Examination at this time.

Complete and send back the following forms to the Consulate:

  • Form DS-230-I (Part I only) for each person applying for a visa, regardless of age
  • Leave unsigned Forms DS-156
  • Leave unsigned Forms DS-156K
  • Form DS-157 (if applicable)
  • Form IV-15 -if required documents are already prepared.

If not already done so, assemble the relevant documents required in support of your application, and mark the documents off on Form IV-15 as you collect them. Do not send these documents to the Consulate.

Sign and date Form IV-15 and forward to the Consulate.

Packet 4

Upon receipt of the above documents, the Consulate will continue any extra processing and tell you about the scheduling of the medical interview and the appointment for the formal visa interview.

Schedule and have the Medical Examination. Arrange for a medical examination with one of the physicians listed on the attached visa instruction. You are responsible for the cost of the examination. A medical examination is also required for each child who will go with you.

Photographs – take Two (2) 2 x 2 Photographs for each applicant according to the specifications on the visa instruction sheet.

Attend scheduled interview with all your unmarried children under 21. Bring supporting documents such as evidence of your relationship to your U.S. citizen fiancé (e), two photographs for each applicant, birth certificates and final divorce decree if any to the k1 visa interview.

If approved, the Consulate may need you to pick up the passport with the visa from the Consulate later.

Sealed Packet – Do Not Open

Consular Officer will give you your passport(s) containing the K-1 visa (K-2) and a sealed packet containing the civil documents you provided, plus other documents prepared by the U.S. Consulate. It is important that you do not open the sealed packet. Only the DHS immigration official should open this packet when you enter the United States.

K1 Visa Validity

Do not finish arrangements for travel to the United States, dispose of properties, or quit your job until the consulate delivers the passport(s) with the k 1/k2 visas to you. A k1 visa is generally valid for six months. You must travel and apply for admission to the United States within that six month window.

After admission on your k1 visa you have 90 days to get married to your U.S. citizen  fiancé (e) or leave the United States. The DHS will issue an entry document (Form I-94) to you (the  k1 fiancé(e)) valid for 90 days. If you marry within 90 days, you can can apply to adjust your status to that of a lawful permanent resident (green card holder) through the filing of a Form I-485.

Gary Goodin, Immigration Attorney

Copyright © 2011, the Immigration NavigatorTM

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Worried about E-Verify mismatches that could prevent you getting hired?

The new E-Verify Self Check service launched by the Department of Homeland Security and USCIS gives workers and job-seekers access to their US employment eligibility status and guidance as to how to make corrections to their DHS or SSA records.
The new service is designed to empower job seekers and US workers by creating a service through which they can check their US employment eligibility status for themselves rather than depend on the E-Verify check done by an employer.

The new E-Verify Self Check service launched on March 21, 2011 by the Department of Homeland Security and USCIS gives workers and job-seekers access to their US employment eligibility status and guidance as to how to make corrections to their DHS or SSA records.

The new service is designed to empower job seekers and US workers by creating a service through which they can check their US employment eligibility status for themselves rather than depend on the E-Verify check done by an employer. 

The program is now only available to individuals in Arizona, Idaho, Colorado, Mississippi, Virginia and Washington, D.C.

Learn more.

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US deportation rate skyrockets; Information-sharing boosts US deportation levels

Some criminal illegal immigrants in the custody of local law enforcement face quicker identification and immigration deportation under a growing biometric-information sharing program between local law enforcement and ICE, the agency of the Department of Homeland Security charged with the enforcement of immigration and deportation laws, and the investigation and prosecution of immigration violations.

Some criminal illegal immigrants in the custody of local law enforcement face quicker identification and deportation under a growing biometric-information sharing program between local law enforcement and ICE, the agency of the Department of Homeland Security charged with enforcement of immigration and deportation laws, and the investigation and prosecution of immigration violations. The program is known as Secure Communities.

What is Secure Communities

Secure Communities is a program that allows ICE to quickly find criminal illegal immigrants in local police custody and begin the deportation process for those who pose a danger to public safety. Under the program DHS can automatically verify the immigration status of aliens taken into the custody of local police and find the most dangerous criminal aliens using the records in its databases.  If the alien has potentially violated immigration laws DHS may issue a detainer against the alien. A detainer is a request to local law enforcement not to release the person before notifying DHS so that DHS may decide if it wants to transfer the person to the custody of ICE during deportation proceedings.

Where Secure Communities exists

As of December 6, 2011 Secure Communities is fully or partially activated in 44 jurisdictions. The fully activated jurisdictions on this date were;

1.  Arizona,

2. California,

3. Delaware,

4. Florida,

5. Georgia

6. Hawaii,

7. Idaho,

8. Michigan

9. Mississippi

10. Missouri

11. New Mexico,

12. North Carolina,

13. Ohio,

14. Oklahoma,

15. Oregon,

16. Rhode Island,

17. South Carolina,

18. Texas,

19. Virginia,

20. West Virginia,

21. Wisconsin, and

22. Puerto Rico.

The jurisdictions that have no active Secure Communities program included Alaska, Washington D.C., Maine, Minnesota, New Hampshire, New Jersey, North Dakota, Vermont, and the United States Virgin Islands. All other jurisdictions were partially activated. In New York, for example, 31 of 62 counties participated in Secure Communities while in Nevada 14 of 17 counties participated. In Maryland and Ohio, the number of active counties were 22 of 24  and 77 of 88 respectively.

 
ICE Deportation of Illegal Immigrants
ICE Deportation of a young woman in error?

 

 

 

 

 

 

 

 

 

 

Is Secure Communities targeting dangerous aliens or is it a broad dragnet?

U.S. Immigration and deportation law experts have expressed mounting concern that the program unintentionally encourages local police to engage in racial and ethnic profiling. Though ICE has a priority system for deportation of criminal aliens and not mere immigration violators, some immigration lawyers and activists argue that the priority system is confusing. Furthermore they argue that ICE has no clear mechanism for ensuring that its agents act according to its priorities. As a result, some non-violent offenders (nannies and gardeners) convicted of minor crimes such as traffic violations are deported. There may also be mistakes in criminal records that lead to deportation of green card holders and other aliens in error. Some of the foreign nationals affected by these errors may choose to leave the United States rather than stay in ICE detention while fighting deportation.

Record level of US deportations and contribution of Secure Communities

Through Oct. 31, 2011, ICE removed more than 110,000 immigrants convicted of crimes, including more than 39,500 convicted of aggravated felony (level 1) offenses like murder, rape and the sexual abuse of children from the United States after identification through Secure Communities.

In Fiscal Year 2011, ICE deported a record-breaking 396,906 people. Fifty five percent of those deported in Fiscal Year 2011—216,698 —were convicted of felonies or misdemeanors, an increase of 89 percent since 2008. This includes 1,119 aliens convicted of homicide; 5,848 aliens convicted of sexual offenses; 44,653 aliens convicted of drug related crimes; and 35,927 aliens convicted of driving under the influence. The number of aliens deported as a result of Secure Communities in Fiscal Year 2010 alone was 35,910.

Want to know if your county participates?  ICE listing of Secure Communities.

Useful Resources:

1. US Immigration and Customs News Release October 18, 2011

2. Secure Communities: Get the Facts

3. Activated Jurisdictions – Is Secure Communities active in your county?

4. Deported teen returns to US. How many Americans are mistakenly banished? – The Christian Science Monitor

This post was last updated on January 08, 2012

 

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