Chapter 2: Overview of Fraud and Willful Misrepresentation

A. General​

An applicant may be found inadmissible if he or she obtains ​a​benefit​ under the INA either through: ​

Fraud​;​ or​

Willful misrepresentation.​

Although fraud and ​willful​ misrepresentation are distinct actions for inadmissibility purposes, they share common elements. All of the elements necessary for a finding of inadmissibility based on willful misrepresentation are also needed for a finding of inadmissibility based on fraud. However, a fraud finding requires two add​itional elements. ​

This is why a person​ who is inadmissible for fraud is always also inadmissible for willful misrepresentation. However, the opposite is not​ necessarily true: a person​ inadmissible for willful misrepresentation is not necessarily inadmissible for fraud.​ [1] For more on the interplay between findings of fraud and willful misrepresentation, see Section D, Comparing Fraud and Willful Misrepresentation [8 USCIS-PM J.2(D)].

Additionally, misrepresentation of a material fact may lead to other adverse immigration consequences. For example, if the beneficiary commits marriage fraud, it may have adverse immigration consequences for both the petitioner and the beneficiary. ​

B. Willful Misrepresentation​

Inadmissibility based on willful misrepresentation requires a finding that ​a person​ willfully misrepresented a material fact.​ [2] See INA 212(a)(6)(C)(i). For a definition of materiality, see Chapter 3, Adjudicating Inadmissibility, Section E, Materiality [8 USCIS-PM J.3(E)]. For ​a person​ to be inadmissible, the officer must find all of the following elements: ​

The ​person​procured,​ or sought to procure, a benefit​ under ​U.S.​ immigration laws;​

The ​person​made​ a ​false representation;​

The false representation was ​willfully ​made; ​

The false representation was ​material;​ and​

The false representation was ​made​to a U.S. Government official,​generally an immigration or consular officer​.​ [3] See Matter of Y-G-, 20 I&N Dec. 794, 796 (BIA 1994).

If all of the above elements are present, then the ​person​ is inadmissible for willful misrepresentation. ​

If the person​ succeeded in obtaining the benef​it under the INA, he or she​ would be inadmissible for having procured the benefit by ​willful​ misrepresentation. If the attempt was not successful​,​ [4] For example, the misrepresentation was detected and the benefit was denied.the ​person​ would still be inadmissible for having “sought to procure” the ​immigration benefit​ by ​willful​ misrepresentation. In each case, evidence of intent to deceive is ​not​ required.​ [5] See Matter of Kai Hing Hui, 15 I&N Dec. 288, 289-90 (BIA 1975).

C. Fraud​

Inadmissibility based on fraud requires a finding that ​a person​ knowingly made a false representation of a material fact with the intent to deceive the other party.​ [6] See Matter of Tijam, 22 I&N Dec. 408, 424 (BIA 1998).

For ​a person​ to be inadmissible for having procured entry, a visa, other documentation, or any other benefit ​under the INA​ by fra​ud, the officer ​must find all of the following elements: ​

The ​person​procured,​ or sought to procure, a benefit under ​U.S.​ immigration laws;​

The ​person​made​ a ​false representation;​

The false representation was ​willfully ​made; ​

The false representation was ​material;​

The false representation was ​made​to a U.S. ​g​overnment ​official​,​generally an immigration or consular officer​;​ [7] See Matter of Y-G-, 20 I&N Dec. 794, 796 (BIA 1994).

The false representation was ​made​with the intent to deceive​a ​U.S. ​government official authorized to act upon the request (​generally an​ immigration​ or consular​ officer);​ [8] See Matter of Tijam, 22 I&N Dec. 408, 424 (BIA 1998). and​

The ​U.S. ​government official ​believed and acted upon​ the false representation by granting the benefit.​ [9] See Matter of G- G-, 7 I&N Dec. 161 (BIA 1956).

If all of the above elements are present, then the ​person​ is inadmissible for having procured ​an immigration​ benefit by fraud. Since the elements required for fraud also include the elements for willful misrepresentation, the ​person​ is also inadmissible for willful misrepresentation.​

If the​person​ was ​un​successful in obtaining the benefit​,​ [10] For example, the fraud was detected and the benefit was denied. he or she may still be inadmissible for having “sought to procure” the ​immigration​ benefit by fraud. In this case, the fraud element requiring the ​U.S. ​government official to believe and act upon the false representation is not applicable; however, intent to deceive is still a required element. ​

In cases of attempted fraud, it may be difficult to establish the ​person​’s intent to deceive because the fraud has not actually succeeded. However, establishing intent to deceive may be ​un​necessary; if evidence supports a finding of willful misrepresentation, which does not require intent to deceive,​ [11] See Matter of Kai Hing Hui, 15 I&N Dec. 288, 289-90 (BIA 1975). then the ​person​ is already considered inadmissible without any further determination of fraud. ​

D. Comparing Fraud and Willful Misrepresentation​

In practice, the distinction between fraud ​and​willful ​misrepresentation is not greatly significant​because​ either fraud or a willful misrepresentation alone is sufficient to establish inadmissibility.​

The following table shows a comparison of the elements required for each ground:​

Comparing Fraud and Willful Misrepresentation​

Elements Required​ f​or a Finding of …​

Scenario​

Willful​

Misrepresentation​

Fraud​

The ​person​procured,​ or sought to procure, a benefit under U.S. immigration laws.​

x​

x​

The ​person​made​ a ​false representation.​

x​

x​

The false representation was ​willfully​made.​

x​

x​

The false representation was ​material.​

x​

x​

The false representation was ​made​to a U.S. g​overnment official.​

x​

x​

When making the false representation, the ​person​intended to deceive​ a ​U.S. ​government official authorized to act upon the request (​generally an ​immigration​ or consular​ officer).​

N​ot Applicable​

x​

The ​U.S. ​government official ​believed and acted upon​the false representation.​

Not Applicable​

x​

(​Not applicable ​if fraud finding based on “seeking to procure” benefit​)​

As the table illustrates, a fraud finding encompasses a willful misrepresentation finding. Therefore, if all the elements are present to make a finding of fraud, then the elements for making a finding of willful misrepresentation must also necessarily be present. ​

Example​:​

T​he ​officer finds​ that ​a person​obtained an immigration benefit by fraud.​T​he ​person​ is ​then ​inadmissible ​for​both ​fraud​ [12] See Matter of B- and P-, 2 I&N Dec. 638, 651 (A.G. 1947). and willful misrepresentation​. ​

Example​:​

The officer finds that ​there was no intent to deceive, ​but the other elements of fraud are present. T​he ​person​ is ​not inadmissible based on fraud but is ​still inadmissible ​for willful misrepresentation​.​ [13] See Matter of Kai Hing Hui, 15 I&N Dec. 288, 290 (“We interpret the Attorney General's decision in Matter of S- and B-C- as one which modified Matter of G-G- so that the intent to deceive is no longer required before the willful misrepresentation charge comes into play.”).

E. Overview of Admissibility Determination​

A finding of willful misrepresentation or fraud requires ​certain ​determinations​. ​If the evidence indicates that the person may be inadmissible due to fraud or willful misrepresentation, the officer should ​follow the ​steps ​in the table below ​to determine inadmissibility:​

Overview of Admissibility Determination​

Step​

For More Information​

Step 1​

Determine whether the person procured, or sought to procure, a benefit under U.S. immigration laws.​

Chapter 3, Adjudicating Inadmissibility​, ​Section B, Procuring a Benefit under the INA​ [​8 USCIS-PM J.3(B)​]​

Step 2​

Determine whether the person made a false representation.​

Chapter 3, Adjudicating Inadmissibility​, ​Section C, False Representation​ [​8 USCIS-PM J.3(C)​]​

Step 3​

Determine whether the false representation was willfully made.​

Chapter 3, Adjudicating Inadmissibility​, ​Section D, Willfulness​ [​8 USCIS-PM J.3(D)​]​

Step 4​

Determine whether the false representation was material.​

Chapter 3, Adjudicating Inadmissibility​, ​Section E, Materiality​ [​8 USCIS-PM J.3(E)​]​

Step 5​

Determine whether the false representation was made​to a U.S. Government official.​

Chapter 3, Adjudicating Inadmissibility​, ​Section F, Fraud or Willful Misrepresentation Must Be Made to a U.S. Government Official​ [​8 USCIS-PM J.3(F)​]​

Step 6​

Determine ​whether​, when making the false representation, the person intended to deceive a U.S. government official authorized to act upon request (generally an immigration or consular officer).​

Chapter 3, Adjudicating Inadmissibility​, ​Section G, Elements Only Applicable to Fraud​ [​8 USCIS-PM J.3(G)​]​

Step 7​

Determine whether the U.S. government official believed and acted upon​the false representation.​

Chapter 3, Adjudicating Inadmissibility​, ​Section G, Elements Only Applicable to Fraud​ [​8 USCIS-PM J.3(G)​]​

Step 8​

Determine whether a waiver of inadmissibility is available.​

Volume 9, Waivers​ [14] For guidance on the waiver of the fraud and willful misrepresentation inadmissibility ground under INA 212(i), see Volume 9, Waivers, Part G, Waivers for Fraud and Willful Misrepresentation [9 USCIS-PM G].

When making the inadmissibility determination, the officer should keep in mind the severe nature of the penalty ​for fraud or willful misrepresentation​. ​The ​person​ will be barred ​from ​admission for the rest of his or her life​ unless​the person ​qualifies for and is granted a waiver​. ​The officer ​should​examine all facts and circumstances when evaluating inadmissibility for fraud or willful misrepresentation.​ [15] See 9 FAM 40.63, Note 1.3, Application of INA 212(a)(6)(C)(i), Nature of Penalty.