False Claim to US Citizenship (INA 212(a)(6)(C)(ii))

Falsely claiming US citizenship is a serious offense under U.S. immigration law, resulting in permanent inadmissibility for foreign nationals. Under INA Section 212(a)(6)(C)(ii), any individual who, after September 30, 1996, falsely represents themselves as a U.S. citizen to obtain a U.S. passport, entry into the U.S., or any other benefit under federal or state law is deemed inadmissible. The false claim to US citizenship must be material (significant) to obtaining the benefit, i.e., if the claim to citizenship does not impact eligibility for the benefit, then the false claim is not subject to 212(a)(6)(C)(ii).

It is important to understand that this section of the law is much broader in scope than Section 212(a)(6)(C)(i) — willful, material misrepresentation. 6Ci only applies to misrepresentations for immigration benefits and only applies if the misrepresentation is made to a US government official. 6Cii applies to US citizenship misrepresentations for any federal or state benefit — not just an immigration benefit — and applies to US citizenship misrepresentations made to any person, not just a US government official.

There are numerous scenarios that a false claim to US citizenship comes up — some of them obvious, some of them not so. The most obvious one is when a foreign national uses the US passport of another person to try to obtain entry to the US. Other situations include:

Employment: Lying about U.S. citizenship on Form I-9 to obtain employment is a violation of the Immigration and Nationality Act (INA 274A), which prohibits unauthorized employment.
Loans: Some financial institutions offer loans exclusively to U.S. citizens; falsely claiming citizenship to secure such a loan is a violation.
Driver’s License: While U.S. citizenship is not required for a driver’s license, proof of legal status may be. Claiming citizenship when applying for a driver’s license can trigger 6Cii inadmissibility.
Voting: In nearly all cases it is illegal for a non-citizen to vote. Claiming citizenship to vote could lead to a 6Cii finding.
Deportation Proceedings: False claims made in immigration proceedings to prevent removal are grounds for inadmissibility.

This can particularly impact individuals who have lived in the United States for many, many years. At some point, the question of US citizenship may have come up. So when they depart the US — say, after an I-601A waiver has been approved and they return to the home country to apply for the immigrant visa — the consul can dig and dredge up these issues and enter a false claim to US citizenship finding and permanently bar the person.

For individuals accused of making a false claim to US citizenship by a consular officer, fortunately, there are defenses. These defenses include: 1) if the individual was under 18 years of age and lacked the maturity and judgment to understand the consequences of their actions; 2) if another person made the false claim on their behalf without their knowledge; 3) a failure to volunteer information or remaining silent does not constitute a false claim; 4) did not intentionally, knowingly, and willfully make the claim to US citizenship; or 5) the parents are US citizens and the individual had been living permanently in the US before the age of 16 and reasonably believed that he or she was a US citizen. These defenses can provide fertile ground for challenging such a decision by a consular officer.

If such a challenge is not possible, then one would need a waiver. The good news is that there is a nonimmigrant waiver available, and so visitors, students, and workers are eligible for a waiver. The bad news is that there is no immigrant waiver available. Unlike a 212(a)(6)(C)(i) misrepresentation finding, which does have an immigrant waiver in certain instances, there is no immigrant waiver for a 212(a)(6)(C)(ii) false claim to US citizenship. Even harsher: there could be criminal charges, fines, and/or potential imprisonment for making a false claim to US citizenship.

As can be seen, the consequences of the entry of such decisions can be devastating. It may mean the permanent separation from family and friends in the United States. Obviously, if there are legal or factual grounds to challenge such a decision, one should do so promptly. These cases can be quite complicated — going back 10, 15, and 25 years to when the alleged claim to US citizenship was made. There is no statute of limitations on a consul revisiting this question and entering a false claim to US citizenship finding. Individuals facing accusations should seek experienced legal counsel to evaluate potential defenses and challenge these decisions when possible, or explore available options, such as nonimmigrant waivers, to mitigate the impact of a 6Cii finding. Please contact us to find out how we can assist.

Case Studies

T arrived to the United States as a B-2 visitor. Several months after arriving, she decided to stay. Her US citizen daughter K decided to undertake the immigration process for her mother “DIY” — do it yourself, without the assistance of a lawyer. But the process is not that simple — it includes accurately completing more than 50 pages of forms for the immigrant petition (I-130)/adjustment of status (I-485)/employment authorization (I-765)/advance parole-travel authorization (I-131)/ and affidavit of support (I-864), as well as providing numerous supporting documents. While USCIS accepted the I-130 petition, it rejected the I-485 because K used an outdated form and submitted a check for the processing fee in the wrong amount. As a result, T became “illegal” because her I-94 expired. K then contacted us. We then prepared the 485/765/131 package for her, as well as the affidavit of support (I-864), the affidavit of support from a co-sponsor (I-864A), and a short memorandum regarding T’s status. 7 months later, T’s green card was issued.

Case of T.V.

More case studies