Misrepresentation and Waivers

There are severe penalties for misrepresentation under the current immigration law. Misrepresentation can be a lie, half-truth, or other fabrication that is made to an immigration officer, immigration judge, or on an immigration application or form. Even a minor falsehood, under current immigration law, can lead to loss of reputation, loss of employment, destruction of personal relationships, and, in the most extreme cases, loss of freedom.

Misrepresentation can be in the form of direct statements to an immigration official, or in the presentation of fraudulent documents to an immigration official such as a border inspector or an immigration judge. Actions, as well as words, can be interpreted as a misrepresentation if done for the purpose of misleading the government into issuing a visa.

For instance, if a foreign visitor wishes to live in the United States, he/she should not apply for a visitor's visa. The visitor's visa is only a temporary visa and does not allow for the visa holder to live in the United States. To apply for a visitor's visa when one does not intend to depart the United States once the visa expires, is an action that can be interpreted as misleading the government into issuing a visa. Therefore, the government may deem that the action of applying for a visitor's visa in this case was a misrepresentation.

In the immigration context, the words "fraud" and "misrepresentation" basically mean the same thing. For the purposes of this article, the word "representation" will cover both offenses. Broken down into its basic elements, misrepresentation consists of:

1. A false statement or document
2. Regarding a material (important) fact
3. The speaker (for example, the visa applicant) did not believe the fact to be true
4. With the intent that it should be acted upon (that is, the false statement was for the purpose of obtaining an immigration benefit)
5. By an individual (such as, an immigration official) who believes the false statement or document to be true, and
6. Was misled by it (for example, the immigration officer believed the false statement or document), and
7. To that person's detriment (for example, the immigration officer actually issued the visa based upon the false statement or document),

Material Fact

In order for misrepresentation to exist, all of the above 7 elements must be present. For instance, element number 2 is missing if the document or statement is not "material". A material fact is one that influences the outcome of the visa application. For instance, a fact is not material if an individual would have still received the desired benefit even if he or she had told the truth about a particular fact. A fact is material, however, if the benefit would not have been granted if the applicant had told the truth about a particular fact.

A recent case involves a young couple (Harry and Manal) who met and fell in love in Berkeley. She was from Yemen, and he was a United States citizen. After Manal returned to Yemen, Harry traveled to Yemen to visit Manal and her family. There he proposed marriage, and returned to the United States and immediately applied for a fiancee visa for Manal. Several months passed and no approval notice was received. Manal became impatient and decided to travel to the United States with her father in order to visit Harry and make the wedding plans. Manal went to the American Embassy in order to obtain a visitors visa. At the interview, an immigration agent asked her if any petitions had been filed on her behalf. Manal knew that a fiancee visa had been filed on her behalf, but she told the officer that no petitions had been filed. Manal and her father were given visitors visas. After visiting Harry for a month, they returned to Yemen. In the mail, was the approval notice for the fiancee visa. Manal and her father returned to the United States, and Manal and Harry were married soon afterward.

Harry then applied for a green card for Manal. They were given an interview at the immigration office. The officer told Manal that she had made a misrepresentation to the visa officer at the American Embassy in Yemen because she did not tell him that a fiancee visa had been filed on her behalf. The officer told Manal that she would have to return to Yemen and wait for her green card, unless she could obtain a waiver.

Waivers

A waiver is basically forgiveness for a misrepresentation. If a noncitizen obtained a visa through the use of fraud or misrepresentation, the government gives the applicant a chance to show that he or she deserves to be forgiven for this offense. Basically, the waiver application must show (1) that the noncitizen has a specific family relationship, and (2) that his/her family would experience extreme hardship if the noncitizen were to be deported.

The waiver application itself is a relatively simple form. However, the difficulty in applying for a waiver is in putting together the documentation that must necessarily be attached to the waiver application. This is an area where an immigration attorney can provide advice on how to assemble a waiver application packet that will clearly prove that the applicant deserves a waiver.

Once the government receives the waiver and its supporting documentation, it must then begin to do a balancing test called "balancing the equities". Using an imaginary scale, the government will place all the factors favorable to the applicant on one side, and all the negative factors on the other side. Hopefully, the scale will tip to the side of the positive factors, giving the applicant a better chance of obtaining a waiver. The positive factors include the degree of hardship to the family and whether or not the applicant is now a person of good moral character. The negative factors include the seriousness of the misrepresentation, and whether or not the applicant takes responsibility for the misrepresentation and apologizes for it.

In prior days, the INS (now called USCIS) regularly granted waivers in cases of misrepresentation or fraud if the positive factors outweighed the negative factors in the balancing test. For instance, if it appeared that a family would be separated or the applicant might lose his/her job or educational opportunities, waivers were usually granted. However, today it is much less likely that a waiver will be granted to a noncitizen who has been found to have made a misrepresentation to the government. In this unforgiving atmosphere, it is best to obtain professional help to structure a strong and well-documented application for a waiver. An experienced immigration lawyer will carefully build a case for avoiding a charge of misrepresentation and for a waiver should misrepresentation be found.

About the author: Kathleen Lord-Black is a U.S. immigration lawyer.  Her offices are located in Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada) . www.immigration-etats-unis.com