Be careful! Misrepresentation, even a small one, has serious consequences in immigration settings

Published on    30 June 2014     Hits: 702

Under the U.S. immigration law, material misrepresentation is a ground  of inadmissibility whether stated only on a visa application, upon  entry, or on an immigration petition or application.  It can create a  permanent bar from getting a visa issued, changing status or adjusting  status to permanent resident, and immigrating.  Some statements are  considered material misrepresentation if the speaker sought a benefit  and that the benefit would not have been granted absent the  misrepresentation, and the speaker believed and understood that what he  or she had said was false.

Let’s look at the real life examples of ‘material misrepresentation’ and their immigration consequences.

Angela applies for a visitor’s visa at the U.S. consulate in her home  country.  The Consul denies and grimly tells her not to bother to  reapply again.  What was the reason?  She thought because she didn’t  have a full-time regular job she would not be issued a visa and used the  service of a broker who is known to create false employment and bank  account records among other tricks.  The broker submitted false  information with her visa application.  This time, it was caught. 
Sophie wants to come to the United States to visit.  Thinking the visa  processing is too cumbersome, she borrows a friend’s passport with her  visa in it and comes to the U.S.  While visiting, she meets the man of  her dream and gets married.  At the marriage interview, the officer  finds out that she came in using false document and declares her  inadmissible.
Charles and his U.S. Citizen wife got married in Charles’s home  country.  Their friends tell them it is faster and easier to apply for  green card in the U.S.  Charles arrives in the U.S. and answers the  border inspector that he’s on a vacation and will return home in a few  months.  Charles and his spouse then file a green card case based on  marriage.  At the interview, the officer believes that Mr. C  misrepresented himself to an immigration officer and declares him  inadmissible.
David remembers having been pulled out of his car and being arrested by  the police.  It’s been a long time ago, and he doesn’t have records.   He states ‘No’ to a question on an immigration form that asks if he was  ever arrested or convicted.  After fingerprinting, the USCIS officer  learns that David has an arrest record and denies his application for  green card for misrepresentation.
In all the above incidents, the aliens were determined to have  materially misrepresented themselves because they knowingly lied in  order to seek a benefit – i.e., entering the United States.
Do these people have any remedies?  Are they all permanently barred  from entering the U.S. again?  What about the U.S. citizen spouse? 
A waiver may be sought if the green card applicant has a citizen or  lawfully resident spouse or parent and can show that extreme hardship  will occur to them.  It is notable that children have been eliminated  from the list of qualifying relatives.
“Extreme hardship” is determined by the following factors: the  qualifying family member’s ties to the U.S.; their ties outside the  U.S.; the conditions in the country to which the qualifying relative  would relocate and the extent of the qualifying relative ties to such  country; the financial impact; and health.
In essence, the examiner will weigh extreme hardship and evidence of  rehabilitation against the severity of the crime committed or lack of  remorse in reaching a favorable decision.
There is also a general waiver for nonimmigrant visa applicants.  In  this situation, their case does not depend on a familial relationship.   Rather, it depends on the following three criteria:  the risk of harm to  society if the applicant is admitted; the seriousness of the  applicant's prior violation(s) of immigration or criminal law, if any;  and the nature of the applicant's reasons for seeking entry.
The trend is waivers are becoming more difficult to obtain.  Some USCIS  service centers have decided that it is not extreme hardship that the  U.S. spouse does not have economic or family ties to the other spouse’s  foreign country and can certainly relocate. 
Therefore, be extremely careful when signing off on a document that  states: “I certify, under penalty of perjury under the laws of the  United States of America, that this petition, and the evidence submitted  with it, is all true and correct.”  It is one’s responsibility to make  sure all information is true and correct.  As well, do not engage in  escapism and deal with reality.  Better to get rejected on a truthful  application and reapply with augmented documentation than be labeled as a  liar and permanently barred.  It’s not worth it.

Mario Guevara-Martinez