M is a citizen of a Visa Waiver Program country. She entered the US as a tourist to see her US boyfriend. Upon questioning at the US airport, she said that she only planned to stay a week to do some sightseeing. Before the allotted 90 days expired, she departed the United States. Two weeks later, she tried to return to the US, but upon her arrival, she was detained, interrogated, and returned back home. She was afraid that she would be permanently barred from the US for making a willful, material misrepresentation, so she retained our firm. We prepared a memorandum, acknowledging her initial willful misrepresentation, but evidencing how the misrepresentation was not material. The consular officer agreed, not finding her inadmissible under Section 212(a)(6)(C)(i).
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.
In the visa context, this section of the Immigration and Nationality Act, 212(a)(6)(C)(i), requires three elements:
- The visa applicant made a misrepresentation;
- The visa applicant made this misrepresentation willfully; and
- The visa applicant's 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 6C finding. Also, in petition-based cases, a consular officer can make a recommendation to DHS to make a finding of willful, material misrepresentation, but it is up to DHS to make the final determination. Nonaction by DHS on such a recommendation (e.g., the expiration of the validity of the petition) should not serve as the basis for the formal entry of a 6C decision.
US immigration law does not stipulate to a statute of limitations. This means that if an applicant committed a willful, material misrepresentation at any time in the visa process — even 15–20 years ago — a consular officer can still permanently bar the applicant under Section 212(a)(6)(C)(i). This holds true even if the applicant received visas after the misrepresentation. Such consular decisions are becoming more and more common, with consuls ignoring the fact that their consular predecessors reviewed the same issue and nevertheless issued visas. Such decisions are particularly ripe for challenge; putting aside the policy arguments as to why these findings are problematic, legally, such decisions are fraught with deficiencies. After all, even if there had been a misrepresentation, how can an officer judge “willfulness” and “materiality” 15–20 years later?
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. They 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 1/5 of these findings are rescinded or the applicants receive waivers. Please contact us to find out how we can assist.