Several elements must be met for an applicant to be permanently inadmissible to the United States under INA 212(a)(6)(C)(ii), i.e. false claim to U.S. citizenship. A 212(d)(3) waiver may be requested if you are barred on this ground and seek to enter the U.S. as a nonimmigrant. There is no immigrant waiver for this inadmissibility bar.
What are the Potential Defenses to a False U.S. Citizenship Claim?
A person who is charged with INA 212(a)(6)(C)(ii) may raise a defense as follows:
1) The false claim was made prior to September 30, 1996
False U.S. citizenship claims made before September 30, 1996, when the immigration laws changed, does not permanently disqualify you from obtaining a green card or immigrant visa.
If your false claim to U.S. citizenship was made to a private entity, such as an employer or a bank, prior to September 30, 1996, the lifetime bar does not normally apply.
False U.S. citizenship claims before this date must have been willfully made to a U.S. government official in connection with a visa application, a request for admission to the U.S,. or an attempt to obtain immigration benefits, for you to be deemed inadmissible or removable on this ground. (NOTE: You might still, however, need a waiver for the fraud or willful misrepresentation.)
2) The false claim was not for a “purpose or benefit” under immigration law or any other federal or state law
One could argue that the potential benefit is not directly linked to a false U.S. citizenship claim (i.e. the outcome would have been the same regardless of the person’s citizenship status).
One could also argue that the false U.S. citizenship claim was made to avoid a negative outcome, and not to obtain a benefit.
An example is lying about being a U.S. citizen to a police officer to avoid being reported to the immigration authorities (where the arrest would have been made despite citizenship status and where avoiding deportation is not a “benefit”).
3) The false claim was made by someone else
False claims made by someone else on your behalf, when you were not aware of and did not participate in the claim, should not disqualify you from getting a green card or immigrant visa.
For example, you might have signed the I-9 form, but did not check the box indicating your immigration status or eligibility to work. Rather, the employer checked the box on your behalf without your knowledge (even though, by law, they are not supposed to do this).
4) The false claim was timely and voluntarily retracted
If you timely and voluntarily retract your false U.S. citizenship claim, you will probably not be found inadmissible or removable. For this defense to work, you would have to timely and voluntarily take back your false claim and correct the error before the lie is exposed or is about to be exposed. The retraction has to be in the same proceeding and not in a different proceeding, for example.
What would qualify as a timely retraction depends largely on the facts, but must be done at the first opportunity.
5) The false claim falls under a specific exception
There is a narrow exception to being deportable — due to a false claim to U.S. citizenship — if you were under age 18 when you made the false claim, you permanently resided in the U.S. (with a green card) before you turned 16, each of your natural or adopted parents were U.S. citizens or are U.S. citizens, and you reasonably believed you were a citizen when you made the claim.
6) The false claim referred to being a U.S. national, not a U.S. citizen
There is ambiguity in old versions of Form I-9 (prior to April 3, 2009), which combined a “citizen or national of the United States” into one box. In this situation, the person may argue that the I-9 doesn’t show clearly whether he claimed to be a citizen or national. Immigration law punishes false claims to U.S. citizenship, but not false claims to U.S. nationality.
In these cases, applicants must show they were claiming to be a non-U.S. citizen national as opposed to a U.S. citizen when they completed the I-9. This inquiry is not necessary when an April 3, 2009, edition or later edition of the I-9 was used because these editions clearly distinguish between a “citizen of the United States” and “non-citizen national of the United States.”
[UPDATE, JUNE 2019] – Different Interpretations of the Law: Does It Matter if the False Claim was Not Intentionally or Knowingly Made?
In prior guidance, immigration officers, immigration judges, and DHS counsels generally agreed the false U.S. citizenship claim must have been intentionally or knowingly made. Mental capacity and English language skills could be relevant to whether you intentionally or knowingly made a false claim.
But in Matter of Zhang, 27 I&N Dec. 569 (BIA 2019), the Board of Immigration Appeals found the plain language of the statute, INA 237(a)(3)(D)(i), does not require an intent to falsely claim citizenship to trigger this ground of removability. The BIA noted the statute does not contain a “knowing” or “willful” requirement for false claims to citizenship. Following this decision, USCIS began to interpret this to mean the applicant need not intend to falsely claim citizenship to be found inadmissible under INA 212(a)(6)(C)(ii).
The U.S. Department of State’s Foreign Affairs Manual (version 03-27-2018), however, still contains a limited exception based on a December 6, 2014 opinion from the DHS Office of the General Counsel. The FAM states:
(1) Only a knowingly false claim can support a charge that an individual is ineligible under INA 212(a)(6)(C)(ii). The individual claiming not to know that the claim to citizenship was false has the burden of establishing this affirmative defense by the appropriate standard of proof (“clearly and beyond doubt”).
(2) A separate affirmative defense is that the individual was (a) under the age of 18 at the time of the false citizenship claim; and (b) at that time lacked the capacity (i.e., the maturity and the judgment) to understand and appreciate the nature and consequences of a false claim to citizenship. The individual must establish this claim by the appropriate standard of proof (“clearly and beyond doubt”).
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There is no immigrant visa waiver available under current law for an applicant who is ineligible under INA 212(a)(6)(C)(ii). If you seek to immigrate to the United States, it is especially important to verify whether the bar was properly made. You should raise any potential defenses to prevent adverse consequences due to a false claim to U.S. citizenship.
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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.