Chapter 3: Adjudicating Inadmissibility

A. Evidence and Burden of Proof​

1. Evidence​

To find ​a person​ inadmissible for fraud or willful misrepresentation,​ [1] See INA 212(a)(6)(C)(i). t​here must be ​at least some evidence that would permit a reasonable person to find that the ​person​used fraud or that he or she ​willfully ​misrepresented ​a ​material fact in an attempt to obtain a visa, other documentation, admission into the ​United States​, or any other ​immigration ​benefit​.​ [2] The “reasonable person” standard is drawn from INS v. Elias-Zacarias, 502 U.S. 478 (1992) (agency fact-finding must be accepted unless a reasonable fact-finder would necessarily conclude otherwise).

I​n addition, the ​evidence must show that the ​person​ made the misrepresentation​ to​ an authorized official of the ​U.S.​ government​, whether in perso​n, in writing, or​ through other means​.​ [3] See Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994). See Matter of D-L- & A-M-, 20 I&N Dec. 409 (BIA 1991). See Matter of L-L-, 9 I&N Dec. 324 (BIA 1961).Examples of evidence an officer may consider include ​oral or written testimony, or any other documentation containing false information.​

2. Burden of Proof​

The burden of proof ​to establish admissibility ​during the immigration ​benefit​-​seeking process is always on the ​applicant. ​During ​the adjudication of the benefit​, ​t​he burden never shifts to the government.​ [4] See INA 291. See Matter of Arthur, 16 I&N Dec. 558 (BIA 1978).

If there is no evidence the applicant obtained or sought to obtain ​a​ benefit under the ​INA​ by fraud or willful misrepresentation, USCIS should find that the applicant has met the burden of proving that he or she is​ not in​admissible​ under this ground​.​ [5] See Matter of D- L- and A- M-, 20 I&N Dec. 409 (BIA 1991).

However, if there is evidence ​that would permit a reasonable person to conclude that the ​applicant​ may be inadmissible​ for fraud or willful misrepresentation, then the applicant has not successfully met the burden of proof.​ [6] See INS v. Elias-Zacarias, 502 U.S. 478 (1992). In failing to meet the burden of proof, t​he applicant will be considered inadmissible for fraud or willful mis​representation unless the applicant ​is able to successfully rebut the officer’s inadmissibility finding.​

If​ the officer’s finding of​ inadmissib​ility is based on evidence that the applicant obtained or sought to obtain a benefit under the INA ​by willful misrepresentation,​ then ​the applicant​ has the burden ​of establishing ​at least one​ of the following facts​ to rebut the finding​:​

T​he misrepresentation​was not made to procure a visa, a​dmission, or some other benefit under the INA​;​

There was no ​false representation;​

The false ​representation was not willful;​

The​false representation​ was not material​;​or​

The false represe​ntation was not made to a U.S. g​overnment official.​

If the officer’s finding of inadmissibility is based on evidence that the applicant obtained a benefit under the INA ​by fraud,​ then ​the applicant​ has the burden ​of establishing ​at least one ​of the following facts​to rebut the finding:​

The fraud was not made to procure a visa, admission, or s​ome other benefit under the INA;​

There w​as no false representation;​

The false​ representation was not willful;​

The false ​representation was not material;​

The false representation was not mad​e to a U.S. g​overnment official;​

The ​person​ did not intend to deceive; or​

The U.S. g​overnment official did not believe or did not act upon the false representation.​

If the officer’s finding of inadmissibility is based on evidence that the applicant ​sought to obtain​ a benefit under the INA ​by fraud​, then ​the applicant​ has the burden ​of establishing ​at least one​ of the following facts​to rebut the finding:​

The fraud was not made to procure a visa, admission, or s​ome other benefit under the INA;​

Th​ere was no false representation;​

The false​ representation was not willful;​

The false ​representation was not material;​

The false representation was not mad​e ​to a U.S. g​overnment official;​ or​

The ​person​ did not intend to deceive.​

If​ the officer determines, after assessing all​of the evidence, that the applicant has established ​at least one of the above facts,​then ​the applicant has ​successfully rebutted the inadmissibility finding. The applicant has therefore ​met ​the​ burden of proving that he or she ​is not​in​admissible​ on account of fraud ​or willful misrepresentation​. ​

If the ​officer​determines, after assessing all of the evidence, that the applicant has established ​none of these facts,​ then ​the applicant ​has not successfully rebutted the inadmissibility finding. The applicant ​is​therefore ​inadmissible because ​he or she​ has not satisfied the burden of proof.​ [7] See Matter of Rivero-Diaz, 12 I&N Dec. 475 (BIA 1967). See Matter of M-, 3 I&N Dec. 777 (BIA 1949).

Finally, if the officer finds that the evidence for and against a finding of fraud or willful misrepresentation ​is of equal weight,​ then the applicant is ​inadmissible due to failure to meet the burden of proof.​ As long as there is​a reasonable​ evidentiary basis ​to conclude​ that ​a person​ is inadmissible​ for fraud or willful misrepresentation, and the applicant has not ​overcome ​that reasonable basis with evidence, the officer should find the applicant inadmissible. ​

3. The U.S Department of State’s 30/60 Day Rule​

The U.S. Department of State (DOS) has developed ​a​ 30/60-day rule ​to​ assist consular officers in evaluating misrepresentation in cases involving ​a person who was​ in the United States​ and ​whose conduct is or was inconsistent with representations made to the c​onsular officer concerning his or her​ intentions at the time of the visa application​.​ [8] For more information on the 30/60 Day Rule, refer to the Foreign Affairs Manual (FAM). See 9 FAM 40.63, Note 4.7, Interpretation of the Term “Misrepresentation,” Applying the 30/60 Day Rule.

An officer should keep in mind that the 30/60 day rule is not a “rule” in the sense of a binding principle of decision​. ​The rule ​is simply an analytical tool that may be helpful in resolving in a particular case whether ​a person​’s actions support of finding of fraud or misrepresentation​. ​Officers must not use​Foreign Affairs Manual (​FAM​)​ guidance in a denial​. ​

B. Procuring a Benefit ​u​nder the INA​

1. General​

In order to be​ found​ inadmissible​ for fraud or willful misrepresentation​, ​a person​ must seek to procure, ha​ve​ sought to procure​, ​or ​have ​procured​one of the following: ​

An immigrant or nonimmigrant v​isa​;​

O​ther documentation​;​

Admission into the United States; or​

O​ther ​benefit provided under the INA.​

The​ fraud or​willful ​misrepresentation must have been made ​to​ an official of the U.S. ​g​overnment, generally an immigration or consular officer.​ [9] See Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994). See Matter of D-L- & A-M-, 20 I&N Dec. 409 (BIA 1991). See Matter of L-L-, 9 I&N Dec. 324 (BIA 1961).

2. Other Documentation ​

“​Other documentation” refers to ​documents ​r​equired ​when a ​person​applies ​for admission to the United States. This includes​, but is not limited to:​

R​e​-​entry permits​;​

Refugee travel documents;​

B​order crossing cards;​ and ​

U.S.​ passports. ​

Documents evidencing extension of stay ​are not considered entry documents.​ [10] See Matter of M-y R-, 6 I&N Dec. 315 (BIA 1954). See 9 FAM 40.63, Note 9.1, Interpretation of the Terms “Other Documentation” or “Other Benefit,” Other Documentation. Similarly, documents such ​as petitions​ and ​labor certification forms ​are documents that are presented in support of a visa application or applications for status changes​. They are not, by themselves, entry documents and t​herefore, ​they are also ​not ​considered ​“other documentation​.​”​

However, if such documents are used in support of obtaining another benefit provided under the INA, they may be relevant to a finding of willful misrepresentation or fraud. ​

3. Other Benefit​s​ Provided under the INA​

Any “other benefit” refers to an​ immigration benefit or entitlement provided for by the ​INA​.​This includes​, but is not limited to:​

R​equests for extension of nonimmigrant stay​;​ [11] See 8 CFR 214.1.

C​hange of nonimmigrant status​;​ [12] See INA 248. See 8 CFR 248.

P​ermission to re​-​enter the United States​;​

W​aiver of the​ 2-year foreign residency ​requirement​;​ [13] See INA 212(e).

E​mployment authorization​;​ [14] See INA 274A. See 8 CFR 274a.12.

P​arole​;​ [15] See INA 212(d)(5). See 8 CFR 212.5.

V​oluntary departure​;​ [16] See INA 240B. See 8 CFR 240.25 and 8 CFR 1240.26.

A​djustment of status​;​ [17] See INA 245. and​

R​equests for stay of deportation.​ [18] See 9 FAM 40.63, Note 9.2, Interpretation of the Terms “Other Documentation” or “Other Benefit,” Other Benefit.

C. False Representation​

1. General ​

False representation, or ​usually called​ “misrepresentation,” ​is a​n​ assertion or manifestation that is not in accordance with the ​true ​facts. ​A ​person may make a ​false representation​ in oral interviews, ​or ​written applications, or by submitting evidence containing false information.​ [19] See General Counsel Opinion 91-39. See 9 FAM 40.63, Note 4, Interpretation of the Term “Misrepresentation.”

2. False Representation M​ust be​ Connect​ed to ​Benefit​

A​person​ is only inadmissible if he or she makes a misrepresentation in connection with his or her own immigration benefit. If ​a person​ misrepresents a material fact in connection with another’s immigration benefit, then the ​person​ is not inadmissible for fraud or willful ​misrepresentation.​ [20] See Matter of M-R-, 6 I&N Dec. 259 (BIA 1954) (the procurement of documentation for the applicant's two children to facilitate their entry into the United States did not render the applicant himself inadmissible under former INA 212(a)(19)).However, ​fraud or willful misrepresentation made in connection with another’s immigration benefit may make the ​person​ inadmissible for alien smuggling.​ [21] See INA 212(a)(6)(E).

There may be situations in which a representative or a parent ​makes a misrepresentation ​on behalf of the applicant. The question then becomes whether the applicant himself or herself willfully allowed such an action.​

D. Willful​ness​

The ​person​ is only inadmissible for fraud or willful misrepresentation if the false representation was willfully made. ​

1. Definition of ​Willfulness​

The term “willfully” should be interpreted as ​“​knowingly​” ​as distinguished from accidentally, inadvertently, or in a ​good faith ​belief that the factual claims are true.​ [22] See Matter of Healy and Goodchild, 17 I&N Dec. 22 (BIA 1979).T​o find the element of willfulness, ​the officer​ must determine that the ​person​had knowledge of the falsity of the misrepresentation, and therefore​ knowingly, intentionally, and deliberately ​presented false​ material facts.​ [23] See Matter of G-G-, 7 I&N Dec. 161 (BIA 1956), superseded in part by Matter of Kai Hing Hui, 15 I&N Dec. 288 (BIA 1975). See Matter of Tijam, 22 I&N Dec. 408, 425 (BIA 1998) (Rosenberg, J., concurring and dissenting).

When determining the “willfulness” of ​a person’s​ false representation, the officer should consider the circumstances that existed at the time the benefit was issued.​ [24] See Matter of Healy and Goodchild, 17 I&N Dec. 22, 28 (BIA 1979) (finding that the applicant had not willfully misrepresented since he could have reasonably believed his actions were correct under the law at the time).

USCIS petitions and applications are signed “under penalty of perjury.” The ​person​ may also be interviewed under oath. By signing or by making statements under oath, the ​person​ therefore asserts his or her claims are truthful. If the evidence in the record subsequently shows that the claims are ​factually un​supported​,​ that​ may indicat​e ​the applicant willfully misrepresented his or her claim​(​s​).​

2. Silence or Failure to Volunteer Information ​

A​person​’s silence or failure to volunteer information does not, in and of itself, constitute ​fraud or willful​ misrepresentation because silence itself does not establish a conscious concealment​.​ [25] See Matter of G-, 6 I&N Dec. 9 (BIA 1953), superseded on other grounds by Matter of F-M-, 7 I&N Dec. 420 (BIA 1957). See 9 FAM 40.63, Note 4.2, Interpretation of the Term “Misrepresentation,” Differentiation Between Misrepresentation and Failure to Volunteer Information.Silence or omission can, however, lead to a ​finding of ​fraud or willful​misrepresentation if it is clear from the ​evidence that ​the ​person​ consciously concealed information.​

If the evidence shows that the ​person​ was reasonably aware of the nature of the information sought and knowingly, intentionally, and deliberately concealed information from the officer, then the officer should find that the applicant consciously concealed and willfully misrepresented a material fact.​

Example​:​

An applicant is legally married but has lived apart from his spouse for 20 years. During that time apart, the applicant lived with another ​person​ for 10 years​as dome​stic partners​ until the other ​person​ died. A few years later, having been in touch with his legal spouse by letter, the applicant states in his application for admission to the United States that he is coming to join his wife. ​

Although the applicant did not reveal the complications in his marital status during the past 20 years, the applicant was not specifically asked any questions relating to these facts. As a matter of law, the applicant is still married to the spouse, and there is no evidence that he married the spouse to obtain an immigration benefit. Since the applicant gave reasonably accurate and correct answers, his failure to disclose his complicated marital situation did not constitute conscious concealment of facts. ​

Example: ​

During World War II, ​a person​ was captured by Germans while serving in the Russian Army and forced to serve as an armed guard at a Nazi concentration camp. The ​person​ later applies for a visa and is questioned about his present and past memberships and affiliations, including any military service. The ​person​ discloses that he had served in the Russian army but does not mention his time as a guard at the concentration camp. When pressed for more on his military service, the ​person​ continues to present only information on service in the Russian army. ​

Since the ​person​ provided an unreasonably narrow response to a general question, it is likely that the ​person​ was fully aware that his time at the concentration camp was pertinent to the response and information sought by the officer. When the ​person​ provided only a partial response, he concealed information knowingly, intentionally, and deliberately. The ​person​’s conscious concealment of facts, therefore, constitutes willful misrepresentation.​ [26] See Fedorenko v. United States, 449 U.S. 490 (1981).

3. Refusal to Respond to Questions​

A​person​’s refusal to answer a question does not necessarily mean that he or she willfully made a false representation. However, refusal to answer a question during an admissibility ​determination could result in the officer finding that the applicant failed to establish admissibility.​ [27] It is the applicant’s burden to establish that he or she is not inadmissible. See INA 291. See Matter of Arthur, 16 I&N Dec. 558 (BIA 1978).

4. Misrepresentation Made by a​Person​’s​Agent ​

I​f the ​false representation is made by an applicant’s ​attorney or agent, the applicant will be ​held ​responsible ​if it is established that the applicant​ was aware of the action taken by the repre​sentative in furtherance of his or her ​application. This includes oral misrepresentations made at the borde​r by someone assisting ​a person​ to enter illegally. Furthermore​, ​a person​ cannot ​deny​ responsibility for any misrepresentation made on t​he advice of another unless it is established that the ​person​lack​ed ​the capacity to exercise judgment​.​ [28] See 9 FAM 40.63, Note 5.2, Interpretation of Term “Willfully,” Misrepresentation is Alien's Responsibility. For more information on factors the officer should consider when determining whether a person is capable of exercising judgment and committing intentional acts, see Subsection 5, Misrepresentations by Minors (Under 18) or those who are Mentally Incompetent [8 USCIS-PM J.3(D)(5)].

5. Misrepresentations by ​Minors (Under 18) or those​ who are Mentally Incompetent ​

The INA does not exempt ​a person ​from inadmissibility for fraud or willful misrepresentation ​solely​ based on age or mental incapacity. The BIA has not ​yet​addressed in any precedent​ decision​ whether a minor is shielded from ​this ​inadmissibility ​on account of being a minor​. ​

Both fraud and willful misrepresentation must be intentional acts. There may be cases in which the officer finds that ​a person​, because of mental incompetence or young age, was incapable of independently forming an intent to defraud or misrepresent. In these cases, ​a person​’s inability to commit intentional acts precludes a finding of inadmissibility for fraud or willful misrepresentation since the ​person​ could not have acted “willfully.”​

The officer should consider all relevant factors when evaluating fraud or willful misrepresentation including the applicant’s: ​

A​ge; ​

L​evel of education;​

B​ackground; ​

M​ental capacity;​

L​evel of understanding;​

A​bility to appreciate the difference between true and false; and ​

O​ther relevant circumstances​. ​

The fact that a misrepresentation occurred while the person was under 18 years of age, in particular, is not determinative​. ​There is no ​categorical​rule that someone under 18 cannot, as a matter of law, make ​a willful misrepresentation​. ​A​person​ may be able to claim, however, that, on the basis of the facts of his or her own case, he or she lacked the capacity necessary to form a willful intent to misrepresent a material fact​. ​

If admissibility is an issue in a case, USCIS does not bear the burden of proving that the person is inadmissible​. ​As long as there is at least some evidence that would permit a reasonable person to find an applicant inadmissible, the applicant must establish that the inadmissibility ground does not apply​. ​For this reason, someone who appears to have made a willful misrepresentation of a material fact while under the age of 18 would have to prove his or her lack of capacity.​

This burden of proof would also apply to someone who claimed a lack of capacity based on a reason other than age, such as cognitive or other disabilities​. ​

If the evidence, clearly and beyond doubt, shows that the ​person​ did not have the capacity to form an intent to deceive, then the misrepresentation could not have been fraudulent. Similarly, if the evidence, clearly and beyond doubt, shows that the ​person​ did not have the capacity to know that the information was false, then the misrepresentation could not have been willful. ​

In these cases, the officer should not find the applicant inadmissible for fraud or willful misrepresentation.​

6. Timely Retraction​

As a ​defense to ​inadmissibility for fraud ​or willful misrepresentation, a​person​ may show ​that he or she timely retracted ​or ​recanted​the ​false ​statement. The effect of a timely retraction is that the misrepresentation is eliminated​ as if it had never happened​.​ [29] See Matter of R-R-, 3 I&N Dec. 823 (BIA 1949). See Matter of M-, 9 I&N Dec. 118 (BIA 1960) (also cited by Matter of R-S-J-, 22 I&N Dec. 863 (BIA 1999)). If a​person​ timely retracts the statement, the ​person​ is not inadmissible for fraud or willful misrepresentation​. ​

For the retraction to be effective, it has to be voluntary and​timely.​ [30] “If the witness withdraws the false testimony of his own volition and without delay, the false statement and its withdrawal may be found to constitute one inseparable incident out of which an intention to deceive cannot rightly be drawn.” See Llanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. 1949). See Matter of R-R-, 3 I&N Dec. 823 (BIA 1949). See Matter of Namio, 14 I&N Dec. 412 (BIA 1973), referring to Matter of M-, 9 I&N Dec. 118 (BIA 1960) and Llanos-Senarrilos v. United States, 177 F.2d 164 (9th Cir. 1949). The ​applicant​ must correct his or her ​representation​ before being exposed by the ​officer​ or ​U.S. ​government official ​or ​before the conclusion of the proceeding ​during ​which he or she gave false testimony​. ​A retraction can be ​voluntary and ​timely if made in response to an officer’s question during which​ the officer gives the applicant ​a chance to explain or correct a potential misrepresentation.​

Admitting to the false​ representation ​after​ USCIS has challenged the veracity of the claim is not a timely retraction.​ [31] See Matter of Namio, 14 I&N Dec. 412 (BIA 1973).For example, a​n ​applicant’s​ recantation of t​he false testimony is neither voluntary nor timely if made a​ year later​and only after it bec​omes​ apparent that the disclosure of the falsity of the statements ​is​ imminent​.​ [32] See Matter of Namio, 14 I&N Dec. 412 (BIA 1973). A retraction or recantation is only timely if it is made in the same proceeding in which the person g​ives​the ​false testimony​ or misrepresentation​.​ [33] See Llanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. 1949).

E. Materiality​

1. Definition of Materiality ​

A fals​e representation only renders a​person​ inadmissible if it is material. ​A ​“​material​”​ misrepresentation ​is​ a false representation concerning a fact that is relevant to the ​person​’s​eligibility for an immigration benefit.​ [34] Officers may consult with field office leadership and Office of Chief Counsel for further assistance as needed to determine whether an applicant’s misrepresentation is material.

2. Test to Determine Materiality​

The U.S. Supreme Court has developed a test to determine whether a misrepresentation​ is material​:​A concealment or a misrepresentation is material if it has a natural tendency to ​influence​ or was capable of influencing​ the decisions of the decision-making body​.​ [35] See Kungys v. United States, 485 U.S. 759, 770 (1988) (proceeding to revoke a person’s naturalization).The misrepresentation is only material if it led to the ​person​ gaining some advantage or benefit to which he or she ​may​not have been entitled under the true facts.​

A misrepresentation has a natural tendency to influence the ​officer’s decision to grant the immigration benefit ​if:​

T​he ​person​would be​ inadmissible on the ​true facts;​ [36] See Fedorenko v. United States, 449 U.S. 490 (1981) (visa applicant who failed to disclose that he had been an armed guard at a concentration camp made a false statement that was material and is therefore inadmissible because disclosure of true facts would have made applicant ineligible for a visa). or​

T​he misrepresentation tends to cut off a line of inquiry​, which is relevant to the applicant​’s eligibility and which might have resulted in a proper determination that he or she is inadmissible.​ [37] See Matter of S- and B-C-, 9 I&N Dec. 436, 447-49 (A.G. 1961), accord. Matter of Bosuego, 17 I&N Dec. 125 (BIA 1980). See Matter of Ng, 17 I&N Dec. 536 (BIA 1980). See Said v. Gonzales, 488 F.3d 668 (5th Cir. 2007) (though the court never reaches the issue, it is discussed).

The ​table below provides ​step-by-step ​guidelines to assist ​officer​s to ​determine whether a misrepresentation is material​.​

Guid​elines for Determining whether ​Misrepresentation is Material​

Step​

If Yes, then…​

If No, then…​

Step 1:​ Consider whether the evidence in the record supports a finding that the applicant ​is (or ​was​)​ inadmissible on the true facts.​

Misrepresentation is Material​

Proceed to Step 2​

Step 2:​ Consider whether misrepresentation tended to shut off a line of inquiry, which was relevant to the applicant’s eligibility.​

Proceed to Step 3​

M​i​srepresentation is ​NOT​ Material​

Step 3:​ If a relevant line of inquiry had been cut off, ask whether that inquiry might have resulted in a determination of ​ineligibility​. ​(The applicant has the burden to show that it would not have resulted in ineligibility.)​

Misrepresentation is Material​

M​i​srepresentation is ​NOT​ Material​

3. Harmless Misrepresentation​

A misrepresentation that is not material because it is not relevant to an applicant’s eligibility for the benefit is considered a harmless misrepresentation​.​ [38] See Matter of Martinez-Lopez, 10 I&N Dec. 409 (BIA 1964) (submission of a forged job offer in the United States was not material when the applicant was not otherwise inadmissible as a person likely to become a public charge). See Matter of Mazar, 10 I&N Dec. 79 (BIA 1962) (no materiality in the nondisclosure of membership in the Communist Party since the membership was involuntary and would not have resulted in a determination of inadmissibility).An applicant is not inadmissible for making a harmless misrepresentation even though the a​pplicant misrepresented a fact. ​However, a harmless misrepresentation may still be taken into account when considering whether a benefit is warranted as a matter of discretion. ​

4. Misrepresenting Identity​

A misrepresentation concerning ​a person​’s identity almost always shuts off a line of inquiry​ because, at the outset,​ it prevents the ​adjudicating ​from scrutiniz​ing​ a​person​’s eligibility for a benefit.​ [39] See Matter of S- and B-C-, 9 I&N Dec. 436, 448 (A.G. 1961). However, if the line of inquiry that is shut off would not have resulted in the denial of the benefit, then the misrepresentation is harmless.​ [40] See Matter of S- and B-C-, 9 I&N Dec. 436, 449 (A.G. 1961). As noted above, a harmless misrepresentation may still be taken into account when considering whether a benefit is warranted as a matter of discretion. The applicant bears the burden of proof to demonstrate that the relevant line of inquiry that was shut off by the misrepresentation of his or her identity​was ir​relevant to the original eligibility determination.​ [41] See Matter of S- and B-C-, 9 I&N Dec. 436 (A.G. 1961).

F. Fraud or Willful Misrepresentation Must Be Made to a U.S. Government Official​

In addition to the other elements outlined above, the ​person​ must have made the fraud or willf​ul misrepresentation to a U.S. g​overnment official in order for such act to rise to the level of an inadmissible offense.​ [42] See Matter of Y-G-, 20 I&N Dec. 794, 796 (BIA 1994). Fraud or willful misrepresentation made to a private person or entity would not make one inadmissible under this ground.​ [43] See Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994). See Matter of L-L-, 9 I&N Dec. 324 (BIA 1961).

G. Elements ​O​nly Applicable to Fraud​

Fraud ​differs from​ willful misrepresentation in that there are generally ​two​ extra elements, ​in addition to the willful misrepresentation eleme​nts listed in ​Chapter 2(B)​,​ [44] See 8 USCIS-PM J.2(B).necessary​ for a fraud finding: ​

The willful misrepresentation was made ​with the intent to deceive​a ​U.S. ​gov​ernment official authorized to act upon the request (​generally an ​immigration​ or consular​ officer); and ​

The ​U.S. ​government official ​believed and acted upon​ the willful misrepresentation by granting the immigration benefit.​ [45] See Matter of G-G, 7 I&N Dec. 161 (BIA 1956). See Matter of Kai Hing Hui, 15 I&N Dec. 288 (BIA 1975).

Depending on whether the ​person​ successful​ly​ procur​ed​ the immigration benefit, one or both elements are needed to establish inadmissibility based on fraud. ​

If the ​person​ successful​ly​ obtain​ed​ the immigration benefit, the officer needs to establish both elements.​If ​the​person​ was unsuccessful in obtaining the immigration benefit​, he or she​ may still be inadmissible for “seeking to procure” the benefit by fraud. In this case, ​the officer only ​needs to establish that the​person​ intended to deceive a ​U.S. ​g​overnment official​ for the purpose of obtaining an immigration benefit to which the ​person​ was not entitled​.​ [46] For a comparison of the elements required for a finding of fraud and a finding of willful misrepresentation, see Chapter 2, Overview of Fraud and Willful Misrepresentation, Section D, Comparing Fraud and Willful Misrepresentation [8 USCIS-PM J.2(D)].

As stated previously​, the distinction between fraud ​and​willful ​misrepresentation is not ​of great practical importance since ​either ​fraud ​or​a willful misrepresentation alone is sufficient to establish inadmissibility​.​

All of the elements necessary for a finding of willful misrepresentation are also needed for a finding of fraud. However, the oppo​site is not necessarily true: a​person​ inadmissible for willful misrepresentation is not necessarily also inadmissible for fraud. ​

Therefore, once an officer determines that all the elements of willful misrepresentation are present, the ​person​ is inadmissible without any further determination of fraud.​