Immigration fraud or willful misrepresentation of a material fact bars you from adjusting to permanent resident status or from entering the U.S. as an immigrant, K-3 nonimmigrant, or K-1 fiancé(e) visa holder.
To overcome this bar to being lawfully admitted to the U.S., prospective immigrants must file for and receive an I-601 waiver when available under section 212(i) of the Immigration & Nationality Act. If the I-601 waiver is granted, you may then adjust status or enter the U.S. on an immigrant, K-3 or K-1 visa.
When Are You Inadmissible Due to Fraud or Misrepresentation [INA§ 212(a)(6)(C)]?
Immigration fraud or misrepresentation is a lifetime bar to adjusting to permanent residence or lawfully gaining admission to the U.S. (either as an immigrant or nonimmigrant).
Section 212(a)(6)(C)(i) of the Immigration & Nationality Act (INA) states that foreign nationals, who by fraud or willfully misrepresenting a material fact, seek to procure (or have sought to procure or have procured) a visa, other documentation, or admission into the United States or other immigration benefit are inadmissible.
Section 212(a)(6)(C)(ii) of the INA further states that foreign nationals who have made false claims to U.S. citizenship for any purpose or benefit under immigration law or federal or state law is inadmissible. The one exception is if each natural parent (or each adoptive parent) of the foreign national is or was a U.S. born or naturalized citizen; the foreign national permanently resided in the U.S. prior to turning age 16; and the foreign national reasonably believed at the time of making such false claims that he or she was a citizen.
What is a Retraction and When Does It Count?
A retraction is a withdrawal of a false statement. When it is timely and voluntary, it may serve to purge a misrepresentation and remove it as a basis for INA 212(a)(6)(C)(i) and INA 212(a)(6)(C)(ii) findings. Whether a retraction is timely depends on the circumstances of the case.
Generally, a retraction is timely if it is made at the first opportunity and before the conclusion of the proceeding during which the false statement was given. The retraction must have been made during the initial interview with the officer. It can also be deemed timely and voluntary if it was made in response to an officer’s questions during which the officer gave the applicant a chance to explain or correct a potential misrepresentation.
When Do You Need an I-601 [INA § 212(i)] Waiver Due to Fraud or Misrepresentation?
You need an I-601 waiver under section 212(i) of the INA when you are inadmissible due to fraud or willful misrepresentation and seek an immigrant visa or green card.
You are inadmissible based on fraud if all the following elements exist:
1. You procured, or sought to procure, a benefit under U.S. immigration laws;
2. You made a false representation;
3. The false representation was willfully made;
4. The false representation was material;
5. The false representation was made to a U.S. government official, such as a USCIS officer, U.S. customs officer, or U.S. consular officer;
6. The false representation was made with the intent to deceive a U.S. government official authorized to act upon the request; and
7. The U.S. government official believed and acted upon the false representation by granting the benefit.
If the immigration benefit was denied, you may still be inadmissible for having “sought to procure” it by fraud. Although the fraud element requiring the U.S. government official to believe and act upon the false representation does not apply, an intent to deceive is still a required element.
In cases of attempted fraud, it’s hard for the agency to determine your intent to deceive when the fraud was unsuccessful. You may, however, still be inadmissible for willful misrepresentation, without any finding of fraud.
You are inadmissible based on willful misrepresentation of a material fact if all the following elements exist:
1. You procured, or sought to procure, a benefit under U.S. immigration laws;
2. You made a false representation;
3. The false representation was willfully made;
4. The false representation was material; and
5. The false representation was made to a U.S. government official, such as a USCIS officer, U.S. customs officer, or U.S. consular officer.
If the immigration benefit was granted, you are inadmissible for having procured the benefit by willful misrepresentation. If the immigration benefit was denied, you are still inadmissible for having “sought to procure” it by willful misrepresentation. In each case, an intent to deceive is not required.
If you are inadmissible for fraud, you are also inadmissible for willful misrepresentation. One example is when a person presents a fake (or someone else’s) passport and visa to a U.S. customs officer with the intent of deceiving the officer to gain entry into the U.S. , and the officer admits him based on the false representation. The person is inadmissible for both fraud and willful misrepresentation.
On the other hand, being inadmissible for willful misrepresentation does not necessarily make you inadmissible for fraud. For example, USCIS could find you willfully misrepresented a material fact, but there was no intent to deceive the officer and the officer did not believe and act upon the false representation.
The distinction between fraud and willful misrepresentation, however, is minor. Either way, the lifetime bar under section 212(a)(6)(C)(i) applies. Without the I-601 waiver, you cannot get a green card, an immigrant visa, or a K visa.
What are the Limitations of the I-601 [INA § 212(i)] Waiver?
The I-601 waiver under section 212(i) of the INA has several limitations:
It is limited to immigration fraud or willful misrepresentation of a material fact to obtain immigration benefits. Section 212(i) does not provide an immigrant waiver for false claims to U.S. citizenship to procure immigration benefits or other benefits under federal or state law. Therefore, if you are found inadmissible under section 212(a)(6)(C)(ii), you must show that the bar actually does not apply to you. Potential defenses to a false claim to U.S. citizenship finding include:
1. The false claim was made prior to September 30, 1996, when the law took effect.
2. The false claim was not for a “purpose or benefit” under immigration law or federal or state law.
3. The false claim was not intentionally or knowingly made, particularly if you were a minor at the time.
4. The false claim was made by someone else, without your knowledge or involvement.
5. The false claim was timely and voluntarily retracted, before the lie is exposed or is about to be exposed.
It does not waive prior removal orders and multiple illegal entries. The I-601 waiver does not cover the 5-year, 10-year, and 20-year bar due to prior removal orders. It also does not cover permanent bars caused by multiple unlawful entries into the U.S. To overcome such grounds of inadmissibility, you need to qualify for, seek and obtain an I-212 waiver by filing a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal .
It is not a stand-alone application. The section 212(i) waiver request is normally filed in conjunction with an I-485, adjustment of status application or an immigrant, K-3 or K-1 visa application. The waiver request is submitted after USCIS (in the case of an adjustment applicant) or the U.S. Consulate (in the case of an immigrant or K-visa applicant) determines you are inadmissible due to fraud or misrepresentation. The waiver, by itself, confers no immigration benefits, such as permanent residence or employment authorization.
Who Qualifies for the I-601 [INA § 212(i)] Waiver?
To qualify for the I-601 waiver [§ 212(i) waiver] and be excused from the lifetime bar under section 212(a)(6)(C)(i), you must show you are one of the following:
1. An intended immigrant who is the spouse, son or daughter of a U.S. citizen or permanent resident (or the fiance(e) of a U.S. citizen K-visa petitioner) who will suffer extreme hardship if you are not admitted to the U.S.
[
NOTE: Being a parent of a U.S. citizen or permanent resident child does
not make you eligible for the §212(i) waiver.]
2. A VAWA self-petitioner who will suffer extreme hardship or whose U.S. citizen, lawful permanent resident, or qualified alien parent or child will suffer extreme hardship if you are not admitted to the U.S.
If you do not qualify for the waiver, you will have to present information, documents, and legal arguments establishing the section 212(a)(6)(C) finding is improperly applied to you. You cannot become a permanent resident unless you get the inadmissibility finding rescinded or you obtain the waiver.
Being eligible for the I-601 waiver does not necessarily mean you will get it. As with other waivers available under the INA, §212(i) waivers are granted in the exercise of discretion. In addition to meeting the statutory requirements, applicants must present evidence showing the positive factors outweigh the negative factors in their case. Even if the applicant is eligible for the waiver, the agency may still deny the request as a matter of discretion.
(NOTE to NONIMMIGRANTS: 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 INA. The nonimmigrant 212(d)(3) waiver is also available for fraud or willful misrepresentation. Whether you qualify for the nonimmigrant visa itself is a separate issue.)
Where Do You File An I-601 [INA § 212(i)] Waiver Application?
The §212(i) waiver request is filed on a Form I-601, which is submitted to a designated USCIS lockbox or service center, the USCIS Field Office that is adjudicating the I-485 adjustment of status application, or the Immigration Court (if the person is in removal proceedings).
The filing address for the I-601 application depends on whether you are:
An immigrant visa or K-3/K-1 nonimmigrant visa applicant who was found inadmissible by the U.S. Consulate at the visa interview; or
An adjustment of status applicant who is filing or has already filed the I-485 application with USCIS; or
A VAWA self-petitioner seeking an immigrant visa or adjustment of status.
Because direct filing addresses for the I-601 are subject to change, you must verify this information on the USCIS website.
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To receive an I-601 waiver for immigration fraud or misrepresentation, you need to do more than just submit the form and documents listed in the instructions. You also have to convince USCIS that you qualify for the waiver and deserve to get it. A qualified immigration attorney can guide you on the documentary evidence to submit and prepare a legal brief to support your waiver request.
For more information on what to submit with your application and why having an attorney helps, read our related article, What should you do to get an I-601 waiver for immigration fraud or misrepresentation?
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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: Fenris Oswin
Within 50 days of attending his visa interview at the U.S. Embassy, my client was cleared of the INA 212(a)(6)(C)(i) inadmissibility charge and received his H-1B visa to resume his employment in the United States. The Embassy had previously found that he willfully misrepresented material fact when he failed to disclose he had been arrested and charged with Domestic Violence on his prior Form DS-160, nonimmigrant visa application, and during the visa interview.
