If you lie about being a U.S. citizen to work, vote in elections, or receive public benefits in the United States, this could stop you from getting a green card or immigrant visa. It can also get you deported from the United States, even if you are already a permanent resident.
A false claim to U.S. citizenship creates a lifetime ban to obtaining permanent residence through a family or employment-based petition.
While a false U.S. citizenship claim seems relatively harmless, it is one of the most serious forms of fraud or willful misrepresentation to obtain immigration benefits. It can also have more dire consequences than a criminal conviction.
If getting a green card or immigrant visa is on your wish list, you should avoid lying about being a U.S. citizen to gain immigration benefits or any benefits under federal or state law.
When Does a False U.S. Citizenship Claim Arise?
False U.S. citizenship claims arise in multiple situations. They include registering to vote in a local, state, or federal election when only U.S. citizens are allowed to do so; claiming to be a U.S. citizen on a job, college, student loan, or mortgage application; and stating that you are U.S. citizen to obtain any benefit for which U.S. citizenship is required.
Most Common Situation: I-9, Employment Eligibility
False U.S. citizenship claims most commonly arise when the non-citizen completes and signs the Form I-9, Employment Eligibility Verification, upon being hired for a job.
All U.S. employers must use the I-9 to document verification of the identity and employment authorization of each new employee (both citizen and non-citizen) hired after November 6, 1986, to work in the United States.
In the Employee Information and Attestation section of the Form I-9, the employee is required to check one of four boxes to show why he is eligible to work in the United States. Section 1 of the Form I-9 (Rev. 03/08/13) states:
I attest, under penalty of perjury, that I am (check one of the following):
- A citizen of the United States
- A noncitizen national of the United States (See instructions)
- A lawful permanent resident (Alien Registration Number/USCIS number) __________
- An alien authorized to work until (expiration date, if applicable, mm/dd/yy) ________. Some aliens may write “N/A” in this field.
Wrongfully checking that you are a citizen of the United States generally amounts to a false U.S. citizenship claim.
The use of a U.S. citizen’s social security number or other identification, or the use of a fake U.S. birth certificate or a fake social security card (that contains no employment restrictions) is further evidence of a false U.S. citizenship claim.
Employers must record the document title (e.g. driver’s license and birth certificate) on the Form I-9. They may, but are not required, to retain copies of the documents.
Employers must retain a Form I-9 for all current employees. They also have to retain a Form I-9 for three years after the date of hire, or one year after the date employment ends, whichever is later.
When you seek to adjust to permanent resident status, you need to complete the Form I-485 and file it with U.S. Citizenship & Immigration Services (USCIS). [UPDATE, JANUARY 2018: In prior versions of the I-485, there was no question on whether you have ever misrepresented being a U.S. citizen. But the newer version of the I-485, starting in June 2017, has questions on whether you ever worked without employment authorization, made a false claim to U.S. citizenship, or engaged in unlawful voting.]
Those who are applying for an immigrant visa at the U.S. Consulate must complete and file the DS-260, online immigrant visa application. The DS-260 ask questions about your employment history.
At your I-485 or immigrant visa interview, the adjudication officer could ask whether you have ever made a false claim to citizenship. The officer may also ask about what documents or information you presented to the employer to be eligible to work. This line of inquiry is not very common, but is generally relevant.
Although the employer — not the employee — is responsible for keeping the I-9 records, the officer could request you produce the I-9s from past employers or current employers as a condition for approving your immigration case.
Some USCIS officers might also subpoena the I-9 records from your prior employer or current employer. If the employer is not under investigation for violating I-9 requirements or hiring unauthorized workers, it might refuse to hand over the I-9 records. But many employers simply forward the available records to USCIS upon request, without objection.
If the citizen box is checked on the I-9, the officer may find that you made a false claim to U.S. citizenship and therefore do not qualify for a green card or immigrant visa.
The U.S. Supreme Court, in Chamber of Commerce of the United States v. Whiting, stated that the I-9 and any information contained in it or attached to it may not be used for any purpose other than for enforcing the Immigration Reform and Control Act of 1986 (IRCA) and other specified provisions of federal law. False U.S. citizenship claims did not make a person inadmissible or removable until 1996, which was after IRCA was passed in 1986.
But federal courts, including the Eighth Circuit Court of Appeals, have found that an I-9 form can serve as evidence of a false claim to U.S. citizenship, particularly in removal proceedings.
What are the Possible Consequences of a False U.S. Citizenship Claim?
Since September 30, 1996, non-citizens who made false U.S. citizenship claims “for any purpose or benefit” under the Immigration & Nationality Act (INA) or any federal or state law are permanently inadmissible. This means you have a lifetime bar to obtaining a family-based or employment-based green card or immigrant visa.
False U.S. citizenship claims not only makes a foreign national inadmissible to the U.S, but also removable from the country. A non-citizen who is in the U.S. and who is found to have lied about being a U.S. citizen to obtain immigration benefits or other benefits under any federal or state law may be placed in removal proceedings before the Immigration Court.
Unlike those who are convicted of crimes involving moral turpitude or those who engaged in fraud or willful misrepresentation to obtain immigration benefits, a person who is found to have made a false U.S. citizenship claim does not qualify for an immigrant waiver to overcome this permanent bar. There is no such waiver available, even if the person has a U.S. citizen spouse who will suffer extreme hardships without his presence in the U.S.
(NOTE: A special authorization for admission as a nonimmigrant for false claims of U.S. citizenship is available under section 212(d)(3)(A) of the Immigration & Nationality Act. Whether you qualify for the nonimmigrant visa itself is a separate issue.)
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It can be tempting to falsely claim U.S. citizenship when there is no other way to find employment or gain entry into the U.S. But this could later cause harm to your green card or immigrant visa application if, for example, you marry a U.S. citizen or find a U.S. employer who is willing to petition for you.
If you are already a permanent resident, a false claim to U.S. citizenship can prevent you from establishing good moral character for naturalization and subject you to removal from the United States.
False U.S. citizenship claims do not prohibit foreign nationals from applying for certain types of relief, such as a U visa and asylum (which can lead to permanent resident status) and Form EOIR-42B, cancellation of removal (which results in permanent resident status). But these forms of relief carry strict eligibility requirements. For example, an Immigration Judge may find that a Cancellation of Removal applicant who makes a false claim lacks the “good moral character” necessary to obtain this relief.
If you ever want to become a permanent resident through a family or employment-based petition, your best choice is to avoid making false claims to U.S. citizenship for benefits under immigration law or benefits under federal or state law. The potential defenses are sometimes hard to establish and don’t always work.
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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
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Photo by: Matteo Parrini, barriers