Mr. S was a famous physicist in his home country, and his petition for extraordinary ability was approved. However, because of the nature of his work, his application for adjustment of status was deemed sensitive by the US government and no action was taken on it for four years. After we filed a writ of mandamus in a federal district court, the US Attorney’s office, which was responsible for defending the lawsuit, contacted USCIS. Within two weeks, USCIS approved the application for adjustment of status.
Material, willful misrepresentation or fraud is the second most “popular” grounds for inadmissibility among consular officers — and one of the most complicated areas of immigration law. The consequences for making such a misrepresentation are draconian: a lifetime bar from the United States. This is why consular officers are cautioned to be careful in making such a decision, with such decisions subject to “strict scrutiny” and requiring “substantial evidence” to support them.
This section of the Immigration and Nationality Act, 212(a)(6)(C)(i), requires three elements: a finding that the
- visa applicant made a misrepresentation;
- did so willfully; and the
- misrepresentation was material.
A misrepresentation is a statement not in accord with the truth — made by either the visa applicant or his agent on his behalf. It must be a statement or a submitted document; silence is not considered a misrepresentation. So the fact that a tour agency or visa consultant erroneously completed a visa application does not “save” the applicant. Similarly, an applicant who does not know English is not “saved” because he misunderstood a question; the inaccurate information is still considered a misrepresentation.
However, such applicants can attempt to challenge these findings on the basis that they did not willfully make the misrepresentation. A willful statement is made intentionally and deliberately, knowing it is untrue. The test is a subjective one: did this person willfully make a misrepresentation? An accusation that he should have known it was a misrepresentation is not sufficient to make a finding.
Materiality can also be a very tricky determination. In general, the term “material” means a misrepresentation which might have led a consular officer to find a person ineligible for a visa. Some examples in the context of applying for a B visa:
- failing to disclose the existence of a relative in the United States;
- lying that one is married;
- denying that the applicant had previously been in the United States;
- failing to disclose a conviction for a crime of moral turpitude.
However, if the information is readily available to the consular officer by a check in the consular database, then the misrepresentation cannot serve as the basis for a
If the decision is not challenged, waivers are available in certain cases. Applicants subject to these findings are eligible for nonimmigrant waivers. Spouses, fiancees, and children of US citizens and permanent residents are eligible for immigrant waivers; parents are not.
As you can see, these decisions can be very complicated and can and should be challenged if they do not have a factual or legal basis. As detailed in the Case Studies section of this site, we have helped numerous individuals overcome erroneous findings of a material misrepresentation and fraud. According to Department of State statistics, approximately 1/3 of these findings are rescinded or the applicants receive waivers. Please contact us to find out how we can assist.